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EU criminal records to be exchanged: A simple question or is there more to it?

28 March 2012

The Council of the European Union (the 25 governments) is currently considering a proposal for a Council Framework Decision on the exchange of criminal record information (EU doc no: 11895/05). The European Parliament has not yet delivered its "opinion" - under "consultation" (not co-decision).

The basic idea is that convictions in another EU state other than where the person is resident should be passed over to the home state.

This is primarily geared to the exchange of this data between EU states - though in Article 7 this can include convictions handed down by "third countries" (ie: non-EU states) and added to a criminal record in the EU and responding to requests from "third countries" under the 1959 European Convention on Mutual Assistance in Criminal Matters [see Footnote 1]

As the summer recess started in Brussels there were a number of questions unresolved in the Council Working Party on cooperation on criminal matters. First, whether "convictions" should include the decisions of administrative authorities (as distinct from judicial ones) (Article 2a). Second, in most cases EU governments like to include the phrase "according to national law" or "as set out in national law" - even though research is rarely available (as in this case) as to what national practices are. However, when it comes to the idea that the state where the conviction was handed down should also communicate the length of time - under its national law - the conviction remains in the criminal record eight member states were opposed to this limitation - only Finland and the Commission want to keep this provision. Similarly, "many delegations" were opposed to "deletions" or "alterations" (for which read corrections) having to be made to the record first transmitted by the state in which the person was convicted.

Although the rationale for this measure is the exchange of information on convictions in other EU states for the "purpose of criminal proceedings" (ie: so that a full EU-wide record of a person's criminal convictions can be available for investigations and courts) under Article 7.2 (and Article 9.2) information can be requested for:

"any other purpose than that of criminal proceedings... in accordance with national law"

The Annex sets out a draft standard form for requesting information on convictions. The "purpose" of the request can be for "criminal proceedings" or a "request from a judicial authority outside the context of criminal proceedings" (undefined). But also includes:

"request from a competent administrative authority"

As each member state is allowed to defines its own "competent administrative authorities" these could include Special Branch or MI5 in the UK.

Opinion of the European Data Protection Supervisor - considered and received little "support"

The European Data Protection Supervisor (EDPS) produced a detailed opinion on 29 May containing recommendations for major changes in the draft measure (EDPS opinion).

Among his recommendations were:

1. that the measure should not enter into force before the proposal for the over-arching Council Framework Decision on the protection of personal data in police and judicial matters is also in force. The EDPS notes that in the latter case there are still substantial issues unresolved (including the transfer of data to third countries).

2. that the transfer of data in instances not concerning criminal proceedings should only be allowed "under exceptional circumstances":

"The system is.. rather complicated, since any request for purposes other than criminal proceedings shall be, at the end of the day, subject to three different parameters of lawfulness: the law of the requesting Member State, the law of the Member State of convicted person's nationality and the law of convicting Member State. This puzzle, which may well include not only criminal procedural law, but also applicable national data protection rules, will have to be solved by the central authority of the Member State of the convicted person's nationality, within the time limit (10 days) laid down by Article 8."

3. that the provisions on updates/cancellations (ie: corrections and amendments) should be clarified:

"the EDPS recommends establishing an obligation for the central authority of the convicted person's nationality to notify updates/cancellations to the central authorities of those other Member States or third countries that have requested information before it was updated or cancelled. Furthermore, the central authorities of the latter Member States should be obliged to update/delete information and prevented from using out of date information."

4. on the scope of the proposed measure the EDPS asks why it is not limited to serious offences:

"the EDPS regrets that the Community legislator does not justify - neither in the explanatory memorandum, nor in any other official document - why the present proposal on the exchange of information could not be limited to more serious criminal offences. Such an explanation should clarify why this wide scope is necessary within a common area of freedom, security and justice and does not exceed the limits set by the principle of proportionality."

5. questions why the "General Secretariat of the Council" is charged with notifying the member states and Eurojust of the "competent admistrative authorities" designated by member states.

6. and that where an individual requests information on their own criminal record in another EU state the central authority of the home state "shall" (not "may") submit the request to the central authority of the other member state.

A month later, on 28 June, the Council Working Party on cooperation in criminal matters met and considered the Opinion of the EDPS. The minute of the meeting reads as follows:

"Delegations welcomed in general the opinion of the EDPS but objected to some of the suggestions made. In particular:

- There was general agreement that there was a link between the present proposal and the proposal for a Framework Decision on the protection of personal data in the third pillar. However, those delegations that took the floor disagreed with the approach that the present proposal should not enter into force before the entry into force of the draft Framework Decision on the protection of personal data. It was suggested that the proposal went further in terms of data protection than the present situation and would therefore be a step forward which could apply until general more comprehensive measures are put in place.

- There was no support for limiting the application of the instrument to serious offences. This approach would be a step backwards compared with current practice under the 1959 European Convention on mutual assistance in criminal matters. It was also suggested that it was important to have the full picture regarding the criminal record of the person concerned.

- The suggestion that the "owner" of the information should notify changes in information transmitted to other Member States or to third countries was not considered necessary as the information may only be used for the specific purposes for which it has been supplied."

In plain language:

1. The Council is not prepared to wait for the proposed Framework Decision on the protection of personal data in police and judicial matters to be in place before going ahead (the euphemism: "those delegations that took the floor", means no-one disagreed with them).

2. There was "no support" in the Council for limiting the measure to serious offences.

3. Nor was there any support for placing an obligation of the originating state and the receiving state amending/correcting/updating the information exchanged.

4. The question of limiting requests for instances not concerning criminal proceedings to exceptional circumstances was not addressed. Nor was the question over the role of the General Secretariat of the Council or placing an obligation to submit request from the data subjects.

Footnote 1: The 1959 European Convention on Mutual Assistance in Criminal Matters has been ratified by 46 countries - 25 EU states and 21 others including Russia, Turkey, Ukraine, Moldova, Israel and Azerbaijan.

Sources:

1. EU doc no: 11895/05

2.European Data Protection Supervisor's Opinion