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New criminal records database for non-EU nationals is "disproportionate and discriminatory"
.10.2.19
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A new EU database for holding information on convicted non-EU nationals is "disproportionate and discriminatory", says an analysis (pdf) published today by Statewatch.

The European Criminal Records Information System for Third-Country Nationals (ECRIS-TCN) will allow Member States to search for information on non-EU nationals ("third-country nationals", in the EU jargon) convicted in other Member States.

The system, to be managed by the EU Agency for Large-Scale IT Systems (eu-Lisa), will contain biographic data and fingerprints of non-EU nationals convicted in one or more EU Member States, as well as facial images, if permitted by the national law of the Member State uploading a file to the database.

Dual nationals - those holding the citizenship of both an EU Member State and a non-EU state- will also be included in the database, despite protests from international legal experts who argue that doing so will create two 'tiers' of EU citizenship and thus discriminate against dual nationals.

The Parliament was originally opposed to the inclusion of dual nationals in the database, but during secret 'trilogue' negotiations with the Council and Commission changed its position, with the concession that the fingerprints of dual nationals will not be added to the system.

However, national authorities will be able to search the ECRIS-TCN using the fingerprints of an EU national if they think they may be 'hiding' previous convictions in other Member States by presenting themselves with their EU nationality, when they also have the nationality of a non-EU state.

The analysis argues that this provision is most likely to affect non-white EU citizens, "who will most likely be suspected of holding the nationality of another country."

The ECRIS-TCN was originally planned as a decentralised system, like the existing ECRIS, which connects national authorities responsible for managing criminal records systems.

However, the Commission subsequently discarded this approach in favour of a centralised system, which the analysis argues "appears to have been significantly influenced by the push for 'interoperability' of the EU's policing and migration databases and information systems."

The Commission pointed to technical studies and cost when justifying its proposal for a centralised ECRIS-TCN, with significant political pressure coming from Member States' interior and justice ministers, as well as recommendations from the High-Level Group on Information Systems and Interoperability.

The interoperability project will interconnect those systems and lead to the creation of a 'Central Identity Register' containing the biographic and biometric data of tens of thousands of non-EU citizens.

The European Data Protection Supervisor has warned that interoperability signals "a point of no return" in the processing of personal data on EU level.

The text of the Regulation and Directive on the ECRIS-TCN agreed between the Council and Parliament was approved by the Parliament's civil liberties committee (LIBE) at the end of January.

Amendments to the text are possible - but unlikely - before it goes to the plenary meeting of the Parliament, currently scheduled for 11 March 2019.

The Council's final approval of the text is likely to take place at the Justice and Home Affairs Council meeting on 7 and 8 March.

The analysis on the ECRIS-TCN concludes:

"'Foreign criminals' are not often afforded much sympathy by the press or politicians, but they too have fundamental rights. The way in which the ECRIS-TCN has been established, however, suggests that this is not of great concern to the EU institutions.

...The Austrian minister of justice is no doubt correct when he says that the EU must 'ensure that someone cannot just escape their criminal past by moving to another member state.' The question remains as to why that could not be done without unnecessarily infringing upon individual rights."

See: Disproportionate and discriminatory: the European Criminal Records Information System on Third-Country Nationals (ECRIS-TCN) (pdf)

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