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Statewatch News online: Where now for accountability? Europol and Schengen

28 March 2012

Where now for accountability in the EU?

- "sanitised" annual report on Europol
- arbitrary decision discontinues Schengen annual reports
- chair of EP Citizens' Freedoms and Rights Committee demands full report

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The annual report for Europol is now published in two forms: a public "sanitised" version and a secret version which is only marked "Limite" (which is not a classified document). The latter version has been accessible to citizens since Europol's predecessor - the Europol Drugs Unit - was set up in June 1993.

An annual report on the operations of the Schengen Convention (including details on the Schengen Information System, SIS) was published since it became operational in 1995. Now there to be no more annual reports on Schengen even though its remit and practices are being expanded - the SIS is the biggest law enforcement database in the EU.

Graham Watson MEP, chair of the Citizens' Freedoms and Rights Committee in the European Parliament has issued the following press statement:

MEP DEMANDS FULL RIGHTS TO EUROPOL DOCUMENTS FOR EUROPEAN PARLIAMENT

"The Chairman of the European Parliament's Justice and Home Affairs Committee, UK Liberal Democrat Graham Watson MEP, has demanded full rights of access to documents produced by Europol and other EU-funded organisations.

Mr Watson's demand follows the news that Europol is to publish one "public" version of its 1999 Annual Report and one "secret" version, which although not officially a classified document will not be released to the EU institutions.

Protesting at the new policy, Mr Watson said: "In the interests of openness it is essential for us to receive the full version of the Europol report. Refusing to release a non-classified document is not only a snub to European regulations but also a step backwards for transparency and the rights of the EU institutions and citizens to have access to documents that concern them."

As Chairman of the Committee that deals with access to documents, I suggest that EU institutions simply refuse to consider the sanitised version of any report and demand the full document."

ENDS

Contact: (00 44) 1458 259176 - Constituency Office, Langport (Sue Curtis)
(00 32) 2 284 7626 - European Parliament Office, Brussels (Katherine
Adams)

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Statewatch report

Every year since the Europol Drugs Unit (EDU) was set up in June 1993 the Council of the European Union produced an annual report on its activities that was adopted by the Justice and Home Affairs Council and made available to parliaments and citizens. In July 1999, with the completion of the ratification of the Europol Convention by all 15 national parliaments in the EU, Europol formally took over from the EDU and commenced its work. An unannounced change of policy then followed.

In April 2000 the Article 36 Committee received the Europol Annual Report after it had been agreed by the Europol Management Board. The report was adopted by the Justice and Home Affairs Council on 29 May 2000 as an "A Point" (without debate, doc no 7728/2/00). When Statewatch applied to the Council for a copy of the document in May we were told that this version contained "operational" details and that a "public version" would be made available later in the year when it was sent to the European Parliament evn though it is not a classified document.

The "public version" did appear on the Europol website in September last year. However, this version is clearly marked "All rights reserved" under copyright and may not be reproduced in whole or part without the permission of Europol. This version is also punctuated by glossy pictures. It is available on: www.europol.eu.int

How the "secret" version compares with the "public" version

Statewatch obtained a copy of the report it was refused by the Council and the report that follows here is taken from this version. It opens with a Foreword signed by Mr Jürgen Storbeck, the Director of Europol. This is very general but does express frustration with the Justice and Home Affairs Council over the delay in setting up the means for exchanging data with non-EU states and agencies: "It is regrettable that the European Union Council has not found itself able to give effect to these aspirations." Europol created the Cooperation Unit to deal with cooperation with third states and organisations. The delay was due to public concern over the nature of the data to be exchanged and the initial list of 23 non-EU countries to be involved which includes Turkey, Colombia and Peru.

At the end of 1999 Europol had 212 staff, 43 of whom were Liaison Officers from EU member states. Europol's budget was 6,452,195 euros in 1998, 18,896,000 in 1999 and 27,446,000 in 2000. The rise is partly due to Europol taking up its full range of activities from July 1999 and partly due to new roles it has been given (terrorism, trafficking in human beings, child pornography and counterfeiting of currency). The Europol HQ in the Hague, Netherlands has national Liaison Officers seconded to it who liaise with Europol National Units (ENUs) and the Heads of ENUs meet regularly. Europol is an international agency, not an EU agency, even though the EU set it up and EU member states pay for it.

The EDU and now Europol is directly engaged in the controlled delivery of drugs operations - a role not covered by the Europol Convention which only authorises the gathering and analysis and dissemination of information and intelligence: "during 1999, the Drugs group moved from strategic to operational activities". In 1999 EU member states carried out 121 controlled deliveries a significant rise from the 46 in 1998. Of these 114 concerned drugs and 7 illegal immigration and trafficking in human beings.

Europol is also involved in trying to combat "illegal immigration" which is a "high priority" and "coordinated actions supported by Europol against.. networks led to several arrests and convictions".

Other tasks Europol undertaken include:

- combatting car theft and it has started a "second hand car project"; money laundering where it "works in close cooperation with the General Secretariat of the Council" (another example of where the Council - the 15 governments of the EU - is undermining the "separation of powers" in becoming involved in the operation of policy);

- terrorism where the "number of cases in which Europol.. assisted is, however, still very low"; and

- organised crime and "high-technology".

There was a decrease "for the second year running" in the number of inquiries lodged by Europol National Units. In 1999 there were 2,180 enquiries initiated by member states (2,298 in 1998). This figure broke down into the following categories: 1,905 cases of information and intelligence exchanges, 192 cases of "special expertise" and 83 cases of "coordination and other support activities". The 2,180 enquiries led to 9,285 answers and further requests (9,782 in 1998, 8,964 in 1997). The 2,180 enquiries divided by type of offence:

1,251 (58%) drugs (1998: 1,383, 60%)
346 (16%) illegal immigration (1998: 338, 15%)
333 (15%) stolen vehicles (1998: 304, 13%)
145 (7%) money-laundering (1998: 177, 8%)
98 (4%) trafficking in human beings (1998: 96, 4%)

Conclusion

It appears that the European Parliament is to be sent the "public version" of the 1999 Europol Annual Report. The "secret" (unclassified) version contains more detail and is not geared to public relations, there is no reason why it should not be in the public domain. The danger in future years is that the gap between the so-called "secret" version and the "public" version will grow - and with it any public accountability. In this context it is ironic that the report on access to EU documents adopted by the European Parliament actually suggests that non-EU bodies, like Europol, could be allowed to submit "public" versions of their report.

Sources: Europol Annual Report 1999, Note from the Presidency to the Article 36 Committee, Limité, 7728/00, EUROPOL 10, 13.4.00; Europol Annual Report for 1999 on: www.europol.eu.int

No more reports on Schengen

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The 1998 Annual Report on the Schengen Convention dated 5 November 1999 is the last one - in future there will be no annual report on the operation of Schengen. Annual reports have been produced since 1995. An informal "decision" has been taken by the Council of the European Union, and the Commission, that as the implementation of the Schengen Protocol in the Amsterdam Treaty meant that "Schengen" was split between Title VI of the Treaty on the European Union (police and legal cooperation, TEU) and Title IV of the Treaty establishing the European Community (immigration and asylum, TEC) there is no requirement to produce an annual report.

This "decision" is all the more astonishing as new measures and practices continue to be adopted under the TEU and TEC under "Schengen" and the Schengen acquis grows and grows. The Schengen Information System (SIS) and the SIRENE system is growing apace too - Denmark, Finland and Sweden (together with Iceland and Norway) are due to join under SIS I+ and the countries of central and eastern Europe with SIS II. On top of this proposals are being discussed to extend access to the SIS to: authorities issuing residence permits and visas, credit approval authorities, vehicle registration agencies and to Europol (see Statewatch vol 9 no 6 & vol 10 no 5).

The remaining annual report will come from the Joint Supervisory Authority (JSA) which is concerned with data protection. JSA reports are full and illuminating and the authority has had several confrontations with the SIS (refusal of access) and the Council (the demand that it have an independent staff). Its reports now contain the overall figures (see below) for the SIS but contain no details at all (because they do not fall within its remit) on all the other practices - police cooperation (including cross-border surveillance and pursuits), internal border checks, movement of persons, drug trafficking and judicial cooperation.

SIS, the figures

Annual figures for "alerts" (record entries) entered into the SIS since its launch in March 1995:

1995: 3,868,529
1996: 4,592,949
1997: 5,592,240
1998: 8,826,856 (5.3.98)
1999: 9,748,083 (23.5.00)

(A figure of 8.69 million at the end of 1998 is given in the annual report. The source of the figures for 1995-1998 are the Schengen Annual Reports, the figure for 1999 is from the annual report of the Joint Supervisory Authority).

At present only 10 EU states are part of the SIS - Denmark, Sweden, Finland, Ireland and UK have yet to join (the UK and Ireland will not input or have access to the categories on immigration intelligence).

These figures are simply based on the total number of "alerts" held on the SIS on a single day; they do not reflect the numbers deleted or added during the course of a year. "Alerts" held on the SIS include "persons" (for example, those wanted for arrest, extradition, to be refused entry, to be placed under "discreet surveillance") and "objects" (vehicles, arms, documents including passports, identity cards, bank notes).

Breakdown of "hits", where an "alert" relates to apprehending or arresting a person, finding a vehicle etc. The figures for "internal hits", in a state in response to an "alert" entered outside that state and "external hits", where there is a hit in another state to the one that entered the data have been combined here.

The total number "hits" is followed by the total number of "alerts" on the SIS in brackets []:

Articles 95-99 deal with people, not objects:
covering 842,256 names and 482,437 aliases.

Article 95
Extradition: 2,416 [10,914]

Article 96
People to be refused entry/deportation: 21,711 [760,347]

Article 97
Missing persons: 1,595 [28,372]

Article 98
Witnesses, wanted by court: 3,773 [35,297]

Article 99
People placed under surveillance: 2,221 [11,126]
Vehicles place under surveillance: 244 [6,210]

Article 100 (Objects)
Stolen vehicles: 13,917 [990,963]
Firearms: 149 [236,372]
Missing "blank documents": 4,775 [165,477]
Identity documents: 4,228 [6,232,168]
Bank notes: 1 [808,411]

The "last report" for 1998

The annual report contains sections on Schengen practices under several headings. Under "Abolition of border checks" it notes that Greece was about to fully participate in the SIS subject to evaluations and that France continued "to invoke the derogation provided for" at its borders with Belgium and Luxembourg "on the grounds that Dutch drugs policy jeopardises its ability to guarantee its internal security". Under "Effectiveness of checks on persons at the internal borders" it records that plans were being drawn up for the "deployment of document advisers at airports and seaports and at consular representations in third countries" and the "secondment of liaison officers to advise and assist with the performance of security and control tasks at the external borders".

"Movement of persons" covers the "harmonisation of the common visa policy", "the abolition of the Grey List" and revision of the "Common Consular Instructions". "Measures to combat drug trafficking" includes guidelines on the "General Principles governing the Payment of Informers" (which should, it says, rule out "informer tourism", whereby an informer shops around between police forces for the best deal).

The largest section is on "Police Cooperation" which includes a reference to the "Project on the Routes used for Illegal Immigration and Immigrant-Smuggling" with the "emphasis on tackling organisations or individuals who aid and abet illegal immigration. Over 5,000 people were detained on "illegal entry, or attempting illegal entry, or when illegally resident" but only "approximately 500 of these were shown to have been smuggled in" - which hardly supports the contention that most "illegal migrants" are smuggled in, this showed over 90% were not.

Schengen states carried out a total of 370 cross-border surveillance operations in 1998 broken down as follows: Netherlands (161), Germany (125), France (40), Belgium (23), Italy (13), Luxembourg (6), Austria (1), Spain (1) and Greece and Portugal none. In addition:

"permission for cross-border surveillance was occasionally not forthcoming due to the fact that the target was not accused of any offence but was a contact of the perpetrator. While this is in keeping with the wording of Article 40.1., it once again shows that the relevant provisions of the Schengen Convention do not fully correspond to the tactical requirements of the police."

There were also 39 cross-border pursuits: Germany (22), Belgium (13), Austria (2), France (1) and Luxembourg (1). And yet again (as above) the Schengen agencies complain of a lack of powers under the Schengen Convention. The "following technical problems should be highlighted: No right of arrest for pursuing offers in some States". On "Judicial Cooperation" it is noted that "not all Schengen states kept records" of requests for assistance or for extradition requests.

In future years none of this information is to be made available.

Source: 1998 Annual Report on the implementation of the Schengen Convention, Limité, 10846/1/99, 5.11.99.

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