A non-partisan journal of the left.

Should There Be a European Criminal Record?

Fri 5th Jun 2009

The evolution of criminal law in the European Union is being hotly debated by lawyers and academics, but has received less attention in the mainstream media - although it involves a central issue in the EU, namely the balance between State power and the fundamental rights and freedoms of individuals. In an enlarging Union and with cooperation in criminal justice becoming both more problematic and necessary, the EU is moving towards a possible ‘European Criminal Record.’ But is this idea of a European Criminal Record at odds with the individual rights and freedoms that are paramount to the idea of the Union?

The free movement of persons and EU criminal law

The progressive elimination of border control within the EU means that the free movement of EU citizens is a reality, but it has also made it simpler for criminals to operate transnationally, especially since the scope of the law enforcement authorities and criminal justice system within the EU has been limited to the boundaries of their respective States. In order to face the challenge of international crime, the EU is progressing toward a single area of justice, but faces the challenge of simultaneously trying to uphold the core freedoms for EU citizens. In this respect, the issue mirrors the global concern for security ever since the terrorist attacks of 11th September 2001, where we have seen an uneasy trade-off between civil liberties on the one hand, and security and justice on the other.

There is no historical precedent of building a supra-national system of criminal law. EU Criminal Law is perhaps the fastest-growing area of EU law. It is also one of the most contested fields of EU action, covering measures that have a significant impact on the protection of fundamental rights and the relationship between the individual and the State. Criminal law is a matter of national sovereignty - something that in international relations, States are very reluctant to give up. Because criminal law is matter of national sovereignty, cooperation has been problematic in the past. However, increased cooperation in criminal law is necessary in order to facilitate mutual trust among existing and potential Member States. With the 2004 and 2007 expansion, Justice and Home Affairs and criminal justice was one of the chief sources for distrust of new Member States. Valsamis Mitsilegas, a reader in law at Queen Mary, University of London, explains in his book EU Criminal Law: ‘The issue of trust to the candidate countries of Central and Eastern Europe was central in the field of integration in criminal matters. The transitional state of these countries in the early 1990s raised fears that political, societal and economic instability would lead to crime and “export” the crime to the Union.

The East was seen as a source of insecurity- at odds with the “safe” EU-mistrust of candidate countries being able to provide security in home affairs.’ Concerns regarding the implementation of EU criminal law requirements by new member States were prevalent in the 6th EU enlargement in 2007- admitting Bulgaria and Romania. This mistrust was manifested in the Justice and Home Affairs pre-accession pact for organized crime. The two States are effectively on probation until the end of 2009, and progress reports on Justice and Home Affairs by the European Commission have not been favourable. It is however widely acknowledged that Member States must work with the new members to tackle the issues in their countries, especially organized crime and money laundering.

Another obstacle to EU judicial cooperation is that States are often reluctant to enforce laws they perceive as incompatible with domestic law or practice. A European Arrest Warrant can theoretically send French police to arrest someone in Spain at the request a third country. But Germany’s highest court ruled the arrest warrant unconstitutional, arguing that the basic law of ‘freedom from extradition’ overrode the EU Framework Decision for the Arrest Warrant.

What is a European Criminal Record?

A European Criminal Record information system has been proposed for storing criminal data beyond the weaknesses of the Mutual Legal Assistance Mechanisms. The concept was put forward to the European Commission by Dr Constantin Stefanou, serving as a political adviser and expert in the study of criminal records for combating organized crime in money laundering and public procurement. There followed substantial research into national criminal records as a way of dealing with the increased mobility of persons and consequently, crime, in the EU. The research found that there were gaps in national records and discrepancies on the amount of information available in the records- for example, persons who had committed even quite serious crimes abroad could easily enter another country with no information on his past offence.
‘Having a common European criminal database is definitely a good idea,’ says Orsolya Deak, a Hungarian lawyer living in London, who has worked at the European Parliament in Brussels. ‘It would help to tackle cross-border criminal cases, as at the moment Member States are not obligated to provide legal aid and assistance in these cases, as Police and Judicial Co-operation in Criminal Matters (PJCC) is within so-called third pillar of the EU, in which the supranational element is not very dominant. In other words, States do not have a strong incentive to cooperate on these matters.

A proposal for a Council Decision on the establishment of the European Criminal Records Information System (ECRIS) was made in June 2008- and with the following statement by Jacques Barrot, the Commissioner responsible for Justice, Freedom and Security: ‘To reinforce the European Area of Security and Justice, and to ensure the security of citizens, it is important to establish at European level a concrete and user-friendly system which will enable an efficient exchange of information on previous convictions of criminals.’

But would an ECR information system be feasible, given what we know about the difficulty of cooperation on these matters? Mitselegas states that the idea of the ECRIS ‘seems premature in light of issues of human rights and data protection and institutional issues, and diversity in criminal definitions.’

Justine N Stefanelli, a Research Fellow in European Law at the British Institute of International and Comparative Law in London, says the idea of a ECR is feasible: “The Schengen Information System (SIS) contains both criminal data and immigration information. There is a clear line between which data is to be used for what purpose—which data the police get to see and which the immigration authorities get to, but there is an updated system in the works, Schengen II, that might broaden access and lead to all sorts of human rights and defence rights issues.’

An EU legislative summary states that the SIS is an information system that allows the competent authorities in the Member States to obtain information regarding certain categories of persons and property. It is thus a vital factor in the smooth running of the area of security, freedom and justice. Twenty-five states have lifted police controls in return for the free movement of persons, thanks to the SIS. The Shengen II system would be opened with a greater number of institutions and personal data could be read by the police force and the customs during the identity checks. Some worry that this information held by the governments would be an assault on citizens' privacy. Many feared that Shengen II would include photographs, fingerprints, and DNA fingerprints, which could be available to authorities and organizations for which this information was not intended when collected.

‘On the other hand, in a system that is supposed to be based on mutual trust and cooperation in criminal justice, having an EU-wide database would be logical in the sense that to efficiently cooperate, information needs to be freely available between Member State authorities. So there has to be a balance between the public interest and the interests of the accused and/or people whose information is stored in those databases.’ says Stefanelli.

The jurisprudence of the ‘right to privacy’

Concerns of privacy are always raised when personal data storage is involved. An academic assessment of the human rights implications of the ECR can shed some light on the issue at stake. The right to privacy has long been established in Article 8 of the European Convention on Human Rights (ECHR), which recognizes the right of everyone to his private and family life. The European Court of Human Rights has made clear in its jurisprudence that the State should not only refrain from interfering with an individual’s right to privacy but also that it should take positive steps to protect the individual.

The right however has some exceptions. Paragraph 2 of the ECHR provides that this right should be exercised:

… except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of a country, for the prevention of disorder or crime, or the protection of health or morals, or for the protection of the rights and freedoms of others.

Alexandra Xanthaki, a senior lecturer in law at Brunel University, explores the human rights concerns for an ECR, in the book Towards a European Criminal Record by Constantin Stefanou and Helen Xanthaki. It is stressed that any access to information contained in national criminal records must satisfy these conditions. There is some legal precedent, which can help us analyse whether it would indeed contravene Article 8. The European Court of Human Rights (ECtHR) has recognized that keeping of records in past criminal cases can be justified as necessary in a democratic society for the prevention of crime. Xanthaki explains that ‘national criminal records prove the widespread belief that the recording of previous convictions is necessary for the prevention of crime.’ The argument here is that the ECR would be justified- as the ‘retention of past convictions is justified on the presumption that among convicted individuals, a significant proportion will re-offend.’ Given the nature of transnational crimes, which include drug and human trafficking and illicit arms trade, it should stand to reason that crimes with an international dimension should be recorded Europe-wide.

Perspective from a new Member State

From the perspective of Hungary, a new member, Deak says ‘I think if we allow the free movement of workers, we have to have a common criminal database. The common system would also force new member states to reassess their level of criminalization, criminal legislations, and sentences, eventually resulting in a sort of best practice throughout in the EU. Without this, the EU leaves itself vulnerable towards third countries.’

As a new Member State, Hungary’s Ukrainian border is the border of the EU. “This means that the Hungarian database is the one where people entering to the EU are checked. I am sure that the Hungarian authorities are doing their best to identify who has criminal records, but I also think that it would be a lot easier and a lot safer to the EU if all the EU Member States’ criminal records were accessible at Hungarian borders.”

What now?

An ECR with the appropriate considerations for Article 8 would not be incompatible with the core freedoms granted to individuals, on the grounds that preventing crime is a legitimate aim. The key matter here is informing EU citizens adequately about the merits of the ECR and respecting the fundamental freedom of privacy, which might not in practice be so simple.

The crux is, that the ECRIS will not (at this time) be a central database but a system for sharing information judicially. It is also important that the crimes recorded would be serious offences with an international dimension- and not minor offences – the difference between the real intention of the ECR and what the public may fear, needs to be clearly set out.
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