Information Exchange and EU Law Enforcement

Anna Fiodorova

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815375272
• eBook ISBN: 9781351240246
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Presenting an integrated approach to information exchange among law enforcement institutions within the EU, this book addresses the dilemma surrounding the need to balance the security of individuals and the need to protect their privacy and data.

Providing the reader with a comprehensive analysis of information exchange tools, exploring their history, political background, the most recent legal modifications and the advantages and disadvantages of their use, it includes a comparison between different information exchange tools.

Written by an author who has worked as a police officer, Home Affairs counsellor and academic, this is an important read for scholars working with EU Law, Criminal Procedure Law, and International Law as well as for practitioners who directly deal with international police cooperation or who perform criminal investigation both within and outside the EU.

1    Introduction

Information is a primary and indispensable background to any conclusions, whether of scientific research, business plans, political decisions or the performance of justice.

Except on those occasions when the offender is caught in the act, the starting point of any police investigation is obtaining information about the crime, and on this basis making deductions, as glorified by Sherlock Holmes. It is also one of the main elements in crime prevention, given that its timely possession precludes damaging consequences and contributes to the legitimate interests of individuals and society.

Information is obtained from different sources, beginning with inquiries to victim and witnesses, and finishing with the inspection of crime scene, reviewing surveillance camera records, consulting databases or carrying out other operational or prosecution activities. It is very seldom that one piece of information is just one link in a chain, which guides competent authorities to the next links; and there is no certainty that this chain will end in the same country where the investigation is taking place.

Cross-border information exchange became more relevant a few decades ago, when organised crime, moving “in the rhythm of time”,¹ identified globalisation and the facilitated movement of persons as an opportunity for new criminal markets. It was especially perceived in the EU and the Schengen zone with the establishment of the free movement of persons, goods, capital and services, the abolition of controls on internal borders and the introduction of a single currency in the majority of EU Member States (hereinafter – Member States).

Notwithstanding, such negative side effects of these undeniable values have not been led automatically by their antidote – the free movement of investigation and prosecution. Actions of law enforcement, prosecution and judicial authorities remained limited to state territory; this meant a high probability of impunity of increasing transnational crimes.

In these circumstances, when EU policies had endangered security by unintentionally giving wider possibilities to criminals than to prosecuting authorities, a need to introduce effective cooperation tools that would overcome the obstacle of the existence of border in investigation and prosecuting criminal deeds (including measures for information exchange) emerged.²

As a result of this in general and of some other incidents (mostly terrorist attacks) in particular, the EU has developed a wide range of mechanisms for information exchange that include databases, networks of experts or contact points, agencies and a purely legal basis for the information exchange process.

As shown by a study carried out by the International Centre for Migration Policy Development, in 2009 countries exchanged approximately 13 million messages³ (requests and transmissions of information) through INTERPOL and within 5 years, in 2014, this number increased to 17 million.⁴ INTERPOL’s databases (such as those on suspected or wanted persons, on dactyloscopics, on DNA profiles, and stolen and lost travel documents) were consulted 1.7 billion times in 2014.⁵

Within the EU, in 2009, one quarter of all investigation information requests were sent to other Member States.⁶ Comparing only information submitted to EIS in 2009 and 2014, a number of records were doubled.⁷

In this way cross-border information exchange became a very dynamic field of EU policy and new initiatives, but sometimes it lacked consistency and clear indications of use of developed instruments. As a consequence, police officers face plurality of legal basis, channels, procedures and tools for different categories of information. In addition, the European legislator has established a variety of regulations for the storage of information, its transmission to third states and onward transmission, as well as for data subject rights towards the processing of their personal data.

For example, data such as fingerprints can be introduced and found in SIS, Europol’s EIS, Europol’s AWFs, national dactyloscopic databases which are accessible on the basis of Prüm Decisions, but subjects’ data and the purposes for which it is stored can be different or overlapping. Information on suspicious financial transactions or bank accounts can be requested through Europol, a network of FIUs, bilaterally between competent authorities on the basis of Swedish Initiative, or found in AWFs.

It throws law enforcement officers into confusion: which mechanism should be used? How should it be used? Will it result only in cross-checks or direct access to information? How long will it take to get information? Is it possible to request or submit information directly or should it be done through the designated authority?

Facing such babel, the aim of this book is to analyse: Which information exchange tools can be used and under what circumstances? Do they overlap? How are they compatible with human rights?

Having said that, it is not less important to highlight the limits of this research; it addresses information exchange between law enforcement authorities while performing one of the core functions – the investigation of a crime. For this purpose, information exchange in crime investigation will be understood as its processing in pre-trial investigation, operational activities, as well as within the stage of traditionally understood investigation, as a stage of the penal process when pieces of exchanged or transmitted data do not involve the authorisation of a judge or a prosecutor.

In any case, information exchange between judicial authorities through Eurojust on the basis of rogatory letters, mutual recognition of evidence or other tools of judicial cooperation remains out of the scope of this research.

Summarising, it can be defined as the analysis of the mechanisms to exchange “raw material” for police investigation, which at the latter stage, and when it is necessary and following relevant procedure, can be converted into evidence.

From geographical perspectives, only the EU tools and those applied to the Schengen area are discussed; the book does not enter into detailed comparisons of international information exchange tools.

The book analyses circumstances that led to the necessity of law enforcement authorities to look for information beyond state borders, and how European politics evolved in this respect. It also scrutinises the impact of information exchange on fundamental rights and marks the difference between their limitation and violation. Special attention is drawn to the right to data protection and its regulation, as this is an inalienable element of any piece of data and largely exposed to violation.

It is devoted to the analysis of different information exchange tools between law enforcement authorities. A selection of tools has been created by basically applying two criteria: to analyse each type of information exchange mechanisms, and when there is more than one of each type, to analyse at least the most important or the most controversial one. On this basis, SIS and SIS II have been chosen as the centralised database, Europol as agency, Swedish Initiative in general as the legal basis for any information exchange, FIUs and AROs as networks, Prüm Decisions as decentralised databases with direct access and PNR as the most recent and controversial decentralised databases. A slight deviation from these criteria makes it necessary to analyse the entire part of the CISA which corresponds to information exchange, i.e. liaison officers, police and customs cooperation centres and the regulation of cross-border assistance foreseen in Articles 39 and 46. This was carried out taking into account that not only SIS and SIS II, but all the mechanisms envisaged in CISA are compensatory measures for the abolition of internal borders within the Schengen area, and represented the first appearance of real police cooperation tools. Besides, study of the Swedish Initiative would not be comprehensive without its comparison with the regulation, foreseen on Articles 39 and 46 of the CISA.

It would be inexcusable not to analyse the tools under development (European Information Exchange Platform and European Police Index System) and not to draw attention to the possible consequences of Brexit in relation to information exchange.

1    STORBECK, Jürgen, “La cooperación policial europea” in MONTERO, Julián, ROMERO, Francisco and VALIENTE, Elena, ¿Hacia una Policía Europea?, Madrid: Fundación Policía Española, 2002, p. 155.

2    Only CISA has established at the same time abolition of the border controls and compensatory measures to it.

3    See INTERNATIONAL CENTRE FOR MIGRATION POLICY DEVELOPMENT AND EUROPEAN PUBLIC LAW ORGANIZATION, “Study on the status of information exchange amongst law enforcement authorities in the context of existing EU instruments”, European Commission, 2010, p. 45, accessed August 20, 2017, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/doc_centre/police/docs/icmpd_study_lea_infoex.pdf.

4    See INTERPOL, “Annual Report 2014”, p. 13, accessed May 17, 2015, http://www.interpol.int/News-and-media/Publications.

5    Ibid, p. 14.

6    See INTERNATIONAL CENTRE FOR MIGRATION POLICY DEVELOPMENT AND EUROPEAN PUBLIC LAW ORGANIZATION, “Study on the status of information…”, loc. cit., p. 46.

7    COUNCIL OF THE EUROPEAN UNION, “General Report on Europol’s activities in 2014”, document 8082/15, p. 42 and 43, accessed August 20, 2017 http://data.consilium.europa.eu/doc/document/ST-9219-2015-INIT/en/pdf.

As revealed by the International Centre for Migration Policy Development, the most frequent exchange data categories are:

“Data about persons; perpetrators, suspects, unidentified persons (name, date of birth, jobs, identification data of fingerprinted criminals for true identification, confirmation of identity, residence, DNA, fingerprints, verification of personal data, criminal convictions, passports, IDs, photographs);

Data about vehicles; vehicles used to transport suspects, perpetrators; vehicles located at the crime scene or recorded by surveillance cameras, registration details, owner and operator of a vehicle, chassis numbers, purchase documents, export and import documents;

Financial data; company information, banking information, property relationship, bank accounts, transaction details, account holders, company board of directors, share capital, income and wealth information, unusual or suspicious money transactions, asset tracing data payment cards, data for POS terminal device;

Communication data; subscribers’ details (particularly for mobiles), IT addresses, billing details, outgoing/incoming calls, emails, wiretapping, interceptions;

Data about objects, confiscated objects, objects related to committed crimes are often exchanged while data about firearms (licensing data, lost weapon, weapon used for crimes) and other ‘explanatory’ data are seldom exchanged (e.g. interrogations, home searches, seizure of evidence, trends, statistics, customs documents, modus operandi, and fines).”

Source: INTERNATIONAL CENTRE FOR MIGRATION POLICY DEVELOPMENT AND EUROPEAN PUBLIC LAW ORGANIZATION, “Study on the status of information…”, loc. cit., p. 49.

Bibliography

COUNCIL OF THE EUROPEAN UNION, 2015, “General Report on Europol’s activities in 2014”, document 8082/15. Available at: http://data.consilium.europa.eu/doc/document/ST-9219-2015-INIT/en/pdf (accessed August 20, 2017).

INTERNATIONAL CENTRE FOR MIGRATION POLICY DEVELOPMENT AND EUROPEAN PUBLIC LAW ORGANIZATION, 2010, “Study on the status of information exchange amongst law enforcement authorities in the context of existing EU instruments”. Available at: https://ec.europa.eu/dgs/home-affairs/doc_centre/police/docs/icmpd_study_lea_infoex.pdf (accessed August 20, 2017).

Interpol, 2014, “Annual Report 2014”. Available at: http://www.interpol.int/News-and-media/Publications (accessed May 17, 2015).

Storbeck, J., 2002, “La cooperación policial europea” in Montero, J., Romero, F., and Valiente, E.; ¿Hacia una Policía Europea?, Madrid: Fundación Policía Española, p. 155–169.

2 Police and information exchange: European Union information exchange policy

1 Territorial limits of law enforcement institutions’ competence and the need for cooperation

Guarantees of security (both internal and external) and justice are the core functions of any modern state¹ and so-called state monopoly.² As in the case of any public institution within any state, the competence of law enforcement institutions is pre-established by national law and as a global rule “do not generally transcend national borders.”³ It means that other persons or entities than the state constitute institutions (for example, private parties or institutions of other states) are not allowed to enforce the law.⁴

There are not so many sources referring to territorial limits of law enforcement institutions’ competence as those dedicated to the same topic in relation to judicial jurisdiction. In any case, the scope of competence of the law enforcement authorities in crime investigation is closely linked to the scope of jurisdiction as crime investigation does not have an end in itself, but is an indispensable step in performing jurisdiction.

The main elements that determine limits of judicial jurisdiction and law enforcement competence are sovereignty and the principle of territoriality.

Penal law is an essential piece of classical understanding of sovereignty.⁵ Nati...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of tables
• Foreword
• Acknowledgements
• Abbreviations
• 1. Introduction
• 2. Police and information exchange: European Union information exchange policy
• 3. Fundamental rights and freedoms under consideration
• 4. Information exchange under Schengen acquis
• 5. Europol
• 6. Swedish initiative
• 7. Example of networking: Financial Intelligence Units and Asset Recovery Offices
• 8. Information exchange under Prüm Decisions
• 9. Passenger name record
• 10. Projects in the pipeline
• 11. Cooperation between the EU and the United Kingdom after Brexit
• 12. Conclusions
• Index