Principle of availability: investigation of crime vs. data protection Julio Pérez Gil University of Burgos. Spain

Availability principle in the EU  Where is it?  What is it?  Why  Limits  Future  Concluding remarks

Four basic documents  The Hague Programme for strengthening Freedom, Security and Justice in the EU 5 November 2004 (till 2008)  Proposal for a Council Framework Decision on the Protection of Personal Data Processed in the Framework of Police and Judicial Co-operation in Criminal Matters (DPFD) COM (2005) 475 final, 4 October 2005  Proposal for a Council Framework Decision on the exchange of information under the principle of availability COM(2005) 490 final, 12 October 2005  Prüm Treaty Signed / In force

Availability principle: Hague Programme …a law enforcement officer in one Member State who needs information in order to perform his duties can obtain this from another Member State The law enforcement agency in the other Member State which holds this information will make it available for the stated purpose, taking into account the requirement of ongoing investigations in that State…

Why?  Tackle serious crime needs information exchange within the Member States between Member States with third states  Police and Judicial co- operation Involves a formal request Sometimes requires judicial authorisation  To gather data  To pass on data Takes time One of the responses to terrorist attack of 11 March 2004 Madrid bombings

Aim  Exchange of information As large a list of information categories as possible with as little effort as possible (ie: requiring a minimum of formalities, permissions, procedures, if any)  Existing information  Available to competent authorities National law enforcement databases National administrative systems  Identity documents and registers on persons  Driving licenses  Vehicles  Firearms  Aviation and maritime registers  Others

Main areas  DNA  fingerprints  ballistics  vehicle registrations  telephone numbers and communications data  civil registers Obligation to exchange information when available

Some consequences  Access to any data held within the EU by Law enforcement agencies (police, immigration and customs) Security Agencies Eventually non-member States (USA)  External checks and controls over the exchange of information and intelligence could be excluded (“self-regulated” agencies)  It covers all crimes (or suspected crimes): not targeted only at combating terrorism

Two opposite approaches  EUROPEAN COMMISION It is not to permit that cumbersome proceedings of interchange of information avoid law and order enforcement and the investigation of trans-border crime in a free movement area… (Communication to the Council and to European Parlamment, COM(2005) 184 final)  STATEWATCH … a classic example of how EU governments have used the “war on terrorism” to give the emerging EU state sweeping powers of surveillance and Control (

Are absolutely irreconciliable?  Data protection for Gathering Processing Passing on of personal data  “Principle of availability“ Existing information Passing on of data

Conditions  The Hague Programm  Strict conditions to be observed when applying the availability pr¡nciple protect sources of information and the confidentiality of data guarantee the integrity of the data to be exchanged supervision of respect for data protection appropriate control prior to and after the exchange

Draft FD on Data Protection in Police and Judicial Co-operation  General rules on the lawfulness of processing of personal data  Specific Forms of Processing Transmission of and making available personal data to the competent authorities of other member states Further processing, in particular further transmission and transfer  Rights of the data subject  Confidentiality and security of processing  Judicial remedies and liability  Supervisory authority and working party on the protection of individuals with regard to the processing of personal data

Availability Proposal for a Council Framework Decision on the exchange of information under the principle of availability, COM(2005) 490 final, Brussels,

Prüm Treaty (27th May 2005)  Aim: help the signatories to improve information- sharing for the purpose of preventing and combating crime in three fields Terrorism Cross-border crime Illegal migration  Austria, Belgium, France, Germany, Luxembourg, Netherlands and Spain  Finland, Italy, Portugal, Slovenia: intention  Incorporate its provisions into the legal framework of the EU ?

Contents  Access to their DNA analysis and dactyloscopic (fingerprint) databases DNA in repressive context, fingerprints also in preventive one Hit/no hit system: Police services may launch a query in the data system of a contracting partner to find out whether it contains data concerning a specific profile, and are automatically informed of the result within a matter of minutes Further information, such as personal data, may be communicated in the course of mutual legal assistance  Full and direct online read access to registration data held by their partners vehicle drive licenses  Exchange of data concerning potential terrorist perpetrators and hooligans

DataData protection initiative Who controls data? Who accesses and/or processes data ? Council Framework Decision on the exchange of information under the principle of availability (Proposal)  DNA profiles  Fingerprints  Ballistics  Vehicle registration information  Telephone numbers and other communications data  Minimum data for the identification of persons contained in civil registers Regulatory Committee established pursuant the Framework Decision Member States’ designated authorities or designated parties - Equivalent competent authorities (police, customs and other authorities of Member States) - Europol Direct access Prüm Convention  DNA  Fingerprints  Vehicle registration data  Data supplied in connection with major events Contracting Parties Contracting Parties (national contact points) - National contact points. Indirect access

Automatic information exchange: operational success  German authorities matched DNA profiles of open cases against data held by Austrian authorities  Hits in 1510 cases  708 open traces from Germany could be attributed to persons known to the Austrian criminal prosecution authorities 14 hits in homicide or murder cases 885(?) hits in theft cases 85 hits in robbery or extortion cases  Prosecution authorities are confident that the number of hits will increase constantly as further Prüm countries take part in this process, and that they will thus be able to solve numerous other open cases

Concluding remarks  Availability principle must play a role  The main step to apply availability principle is done… but without Framework Decision on Data Protection  Adequate data protection must be seen as a necessary consequence on a legal instrument on availability  Data protection can improve police cooperation  An specific legal instrument on data protection in the third pillar is needed

Thanks for your attention !!!!  Julio Pérez Gil University of Burgos (Spain)