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Council Presidency proposal on security screening of all immigrants

01 July 2002

The Danish Presidency of the EU has put forward a proposal on "the investigation and prosecution of war crimes and crimes against humanity etc" which will require the screening of all immigrants.

The proposed new 'third pillar' Decision on screening of migrants would require Member States to screen all immigrants, apparently including all asylum-seekers, for an undefined list of crimes. This would include entirely open-ended powers for law enforcement authorities (likely including security services) to become involved in immigration and asylum decisions.

There is no regard paid to the rights of immigrants or asylum-seekers to protection from persecution, the right to family life, and there is no provision for data protection, information for the persons concerned by such decisions, or for the judicial control or scrutiny of the decisions taken.

Moreover, the legality of the key parts of this proposal is highly questionable on several grounds. The proposal, moreover, is a missed opportunity to consider measures that would ensure that the EU guaranteed the effectiveness of the new ICC against genuine war criminals.

The proposed Decision could have the Kafkaesque result that persons, including genuine refugees, EU citizens and their family members, are denied a residence permit without ever knowing the reasons why or having a chance to challenge these reasons.

Analysis

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Article 1 sets out the purpose of this proposal. Article 2 requires a system to be set up to inform law enforcement authorities where a suspicion arises when processing a residence permit application that the applicant could be prosecuted for one of the acts referred to in Article 1. It is not limited to residence permit applications by third-country nationals (non-EU citizens) and so could apply to applications for residence permits by EU citizens and their family members.

Article 3 sets out an obligation to investigate and prosecute offences as defined in Article 1. More particularly, Article 3(3) requires an exchange of information where a person has already applied for a residence permit to another Member State. Article 3(4) requires a Member State to provide information to another Member State when it becomes aware of that person's presence in the latter Member State.

Articles 4 and 5 provide for coordination and periodic meetings related to the prosecution of crimes within the scope of Article 1 of the proposal, although Article 5(2) only applies to war crimes.

Analysis in detail

All Member States have an obligation under the International Criminal Court (ICC) Statute to ensure that persons potentially guilty of war crimes, genocide or crimes against humanity are either prosecuted in their own courts or turned over for prosecution by the International Criminal Court, and Articles 4 and 5 of this proposal would contribute to that end (although it is not clear how they relate to a recent Decision on the same issue agreed by the Council). But there are two huge problems with this proposal.

The first problem is what the proposal leaves out. Significant changes to achieve the goals of the ICC, like enabling civil claims for compensation against the guilty parties, enlarging criminal and civil jurisdiction over such crimes, and eliminating immunity for heads of state, et al, are not suggested by this Decision.

The second problem is what the proposal includes in Articles 1 and 2 (and by extension, Article 3). Article 1 defines the Decision's aim as strengthening the investigation and prosecution of 'war crimes or other similar serious offences, including terrorism'. The terms 'war crimes' and 'terrorism' are not defined, either by reference to the Statute on the International Criminal Court or to the recent EU framework decision on terrorism. Is the phrase 'similar serious offences' intended only to cover the other crimes within the jurisdiction of