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Experts on Fundamental Rights highly critical of EU response to 11 September

01 April 2003

The first annual report of the "EU independent group of experts in fundamental rights" has expressed grave concern over anti-terrorism legislation adopted by EU member states in response to 11 September. The network was set-up by the European Commission in September 2002, following a recommendation from the European Parliament. The report offers six main criticisms of EU and member state anti-terrorism legislation (see summary on pages 303-4, link to full-text follows below):

1) Problems regarding the "imprecise" definition in the EU Framework Decision on combatting terrorism of 13 June 2002:

since qualifying an offence as "terrorist" justifies the use of special methods of inquiry that entail major interference in private life, the distinction between "terrorist" offences and other offences must be sufficiently precise to meet the condition of lawfulness to which the legitimacy of this interference is subject. This is not the case when the distinction between two offences is described exclusively by the gravity of their consequences and the objective of the perpetrator.

2) Concern over the European Arrest Warrant (EU Framework Decision of 13 June 2002):

the Court of Justice of the European Communities is not really in a position to impose a uniform interpretation of the framework decision on the European arrest warrant, which accentuates the risk of applying political considerations and the negotiation within the Council to the requirements for fundamental rights.

3) Failure to ensure data protection in regard to cooperation with third states, particularly the United States:

The Member States... must refrain from assisting those third States when it appears that this means an individual risks violation of his/her fundamental rights, including the case of a flagrant denial of justice. This prohibition defines the limits to judicial cooperation that can be envisaged with the United States... Under Article 25 of Directive 95/46/EC, the transfer of personal data to a third country for processing can only take place if the third country in question provides an adequate level of protection. There are doubts at this time about whether the protection offered by the United States is adequate... Similarly, Article 18 of the Europol Convention adopted by Act of Council on 26 July 1995 defines the conditions under which Europol can transmit personal data recorded by its services to third party States or bodies... [This Act] must be interpreted taking into account the general requirements of Article 8 of the Charter of Fundamental Rights of the European Union, as well as Article 8 of the European Convention of Human Rights and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. From the standpoint of these provisions, and particularly Article of 8 § 3 of the Charter of Fundamental Rights, the absence of an independent control authority competent for supervising the transmission of data by Europol and the uses made of this data by the United States authorities is grounds for particular concern.

4. EU Recommendation on the development of "terrorist profiles" of November 2002:

The development of terrorist profiles on basis the characteristics such as nationality, age education, birthplace, psycho-sociological characteristics", or family situation - all these elements appear in the recommendation on developing terrorist profiles - in order to identify terrorists before the execution of terrorist acts and cooperation with the immigration services and the police to prevent or reveal the presence of terrorists on the territory of Member States, presents a major risk of discrimination. The development of these profiles for operational purposes can only be accepted in the presence of a fair, statistically significant demonstration of the relations between these characteristics and the risk of terrorism, a demonstration that has not been made at this time.

5. General fail