So far, no accountability for Europol’s illegal surveillance
Imagine learning that the police have labeled you a terrorist because of your support for movements committed to anti-racism, the environment and a free Palestine.
This is what happened to Frank van der Linde in 2018 when he went to pick up his post. He had requested his police file, which showed that the Dutch police had added him to a terrorist watchlist to monitor his movement and his social media posts.
What’s more, the Dutch police had informed all other European law enforcement authorities to keep tabs on him, by sharing his data with EU police agency Europol.
The Dutch police had sent van der Linde’s data to Europol with the heading “crime area terrorism.” They later informed the activist in a letter (pdf), that the reason for the terrorism label was that they had no other choice. The agency can only process information about individuals suspected of serious crime or terrorism. It has no remit for anything to do with protest, public order or activism.
Van der Linde subsequently requested his file from Europol. After consulting with the Dutch police, they refused access. Van der Linde filed an appeal with the European Data Protection Supervisor (EDPS), responsible for supervising Europol’s use of personal data.
Two years later, the EDPS decided that Europol should have given van der Linde his file. Instead, the police agency had tried to delete all evidence of the data they stored about him.
Enforcement of the EDPS’ decision has been put on hold until a Dutch court decides, in a separate case, whether the Dutch police should grant access to all the information they shared with Europol. That decision, however, has been delayed by the police withholding access to information.
This has happened so frequently in van der Linde’s multiple cases against the police that the Court of Amsterdam decided last year to appoint an independent expert to verify that no more information is being stored about him.
Demand for compensation from Europol
A letter to Europol from van der Linde’s lawyers, sent last week and seen by Statewatch, says that the activist “formally holds Europol liable for all damage he has suffered as a result of Europol’s actions.”
He is seeking compensation for the immaterial damage he suffered from Europol, such as the impact on his reputation and mental health.
The letter also demands that the agency pay compensation for the five years he has spent seeking access to his file.
The demand is relevant not just for van der Linde, but for anyone requesting access to their file or challenging a refusal of access.
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The letter gives Europol a deadline of 1 July to accept liability and commit to paying compensation. If the agency refuses, the complaint will head off the Court of Justice of EU (CJEU).
If that happens, the Court of Justice may rule in favour of the claim, but it could also reject it, or restrict the scope of compensation.
That could have a chilling effect, making people less likely to seek redress for unlawful surveillance, knowing that the agency will try to delay the process and hide information, without facing consequences for their unlawful actions.
If the case goes to the CJEU, the court would also rule on the unlawful processing of data by the agency, which is restricted by law to only process information about serious criminal and terrorist offences – not pacifist political activism.
