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Transparency in the European Union still problematic

28 March 2012

Jelle van Buuren 30.04.2003

Transparency has increased in the European Union, as sofar is it has become somewhat easier to search for and request specific documents. But the accessibility of the requested documents has not increased correspondingly.

This conclusion is made by the International Federation of Journalists, who asked Danish and Swedish researchers to look into the effects of the new European rules on openness, which came into force in 2001. In order to test the usefulness of the new rules, access was requested to three different kinds of documents in three different policy areas. Documents indicating the position taken by a Member State were not released, since it is assumed that this would make decision-making in the Council more difficult. Also no part of any document on anti-terrorism measures was released, as this would jeopardise public safety. According to the study, 'concern for the prejudicial effects of releasing a document seems to weight as heavily as or more heavily than the specific content of the document.'

A stunning example of how openness on all documents relating to anti-terrorism measures is being denied can be found in a recent request I made to get the evaluation of national anti-terrorism measures. In September 2002 the Council send a 'questionnaire on peer assessment of national terrorist arrangements' to the Member States of the Union. The questionnaire mainly focused on all sorts of legal questions, like: what is the current legal basis for anti-terrorist action in your country and how are terrorism/terrorist acts defined; does your legislation include specific provisions ("universal jurisdiction") to prosecute terrorist acts committed abroad by nationals and/or by foreigners against national interests; has your country assessed new legal provisions in order to improve the fight against terrorism both at national and international levels, especially in the following fields: interception of communications, cybercrime, legal obligations for internet providers/telecom operators, list of terrorist organisations, fight against the financing of terrorism, CBRN terrorism, information and data exchanges within the EU MS and with Third countries?

Other questions focussed mainly on organisational matters, like: which ministries are involved in the fight against terrorism and which one has the lead; what are their respective competences; how has a co-ordination body been set up at inter-ministerial level; if so, what is its remit and membership, and has it a permanent character; how are suspected terrorists prosecuted? in comparison with criminal offenders, are there special criminal procedures or substantive provisions e.g. in the field of pre-trial/custody, penalties, and liability of legal persons; do you have specialised prosecution units/magistrates and what are their competences?

I asked for the release of two documents, which summarised the outcomes of this evaluation. But access was fully denied on the grounds of article 4(1) of the regulation on public access: protection of public interest as regards public security:

"If sensitive information of this kind were to be disclosed, the relevant authorities might regard this as a breach of their trust and in the future be less inclined to provide such information, which in turn would be contrary to the public interest of combating terrorism effectively", the General Secretariat of the Council of the European Union argued.

I appealed to this decision, because almost all of the questions in the questionnaire related to legal provisions, and the legal competence and powers of bodies involved in the field of anti-terrorism. In short, these are by their very nature public matters and should be available in any democratic society.

As a result, I got partially access to one of the documents. But most of the document is still kept secret. For instance, the whole part of the questionnaire on the interception of telecommunications and Internet is kept secret. 'These parts of the document consist of a description of provisions under preparation relating to these sensitive issues or the absence thereof. The Council considers that "the provision of detailed information on the legal framework for specific methods of the fight against terrorism and its loopholes could be used by terrorist organisations to steer their operations from Member States in which those methods are least developed," the letter argues.

With the same argumentation access is denied to the answers on the internal organisation of the anti-terrorism bodies: "This chapter reveal details, which by comparison also reveals the efficiency of those services. Again this information could be used by terrorist organisations to steer their operations from Member States in which they face the least risk of persecution." For the same reasons, access is denied on information on additional funding and measures of internal organisation, and negotiations to enhance international cooperation.

The other document is kept entirely secret. 'In this document the Presidency makes a preliminary assessment of the areas of major concern in the light of the analysis provided by Member States. Disclosure of this note could seriously hamper and prejudice from the beginning all efforts being made for a co-ordinated plan at European level to combat terrorism,' the letter states.

It is interesting to see that the partial disclosure of one of the requested documents was supported by a narrow majority of nine of the fifteen Member States. Six states were against the partial disclosure: Belgium, Greece, Portugal, Sweden, Finland and Denmark. It is remarkably that the Scandinavian countries, which are known as supporters of more openness in the Union, voted against the disclosure. Maybe there is some information in the document that these governments find embarrassing to reveal? Belgium seems to be the hardliner in this case. The Belgian delegation asked to publish a declaration:

'The Belgian delegation is in favour of total refusal of the documents. Belgium considers that all documents made in the framework of the evaluation exercise of national anti-terrorist arrangements cannot be accessible to the public.'

The parts of the document that are being disclosed are not very sensitive stuff. For instance, the document states that the United Kingdom, France, Spain and Italy have developed a specific and comprehensive anti-terrorist legal base to prevent and prosecute terrorist acts, while the other Member States criminalize the participation in terrorist groups and prosecute terrorist groups as criminal organisations. It also become clear that most of the Member States do not have a clear definition of 'terrorism' in their legislation. Further, all Member States finds international treaties on terrorism very important and are preparing new legislation in accordance with the European Framework Decision on Terrorism of 13 June 2002. All Member States have existing appropriate legal provisions against the financing of terrorism. Also most Member States, with the exception of Belgium, Luxembourg and Ireland, have legislation against CBRN terrorism.

The study further 'reveals' that even the Member States, which have national anti-terrorist legal frameworks usually, do not apply or do not use exceptional arrangements in respect of alleged terrorists. They are prosecuted under 'normal' criminal legislation, except in France, which has adopted and applied 'exceptional arrangements' to presumed terrorists. Also Germany and Italy have to 'a certain extent specific substantive provisions governing the investigation and prosecution of terrorist offences.'

The evaluation concludes that the transposition into national laws of the adopted European Framework decisions on Terrorism and the European Arrest Warrant 'will approximate the prevention and prosecution of terrorism and will prevent the use of legal gaps by terrorists. The implementation at national level is a crucial element for combating terrorism in particular in Member States which prosecute terrorist-related offences under general criminal law without specific reference to the intention of terrorists to disrupt society, in accordance with the definition adopted by the Council.'

So this is the kind of information that some European Member States don't want to be released to the public. So far for openness in the European Union, one may conclude. The problem is that more and more European documents are kept secret with the same arguments: any comparison of legislative, organisational or operational arrangements in the field of law enforcement are seen as a potential threat to the public order, as criminals or terrorists could use the 'loopholes'. What should the European Union think of all those academic institutes that publish comparative European studies? Or national institutes that study the operations of law enforcement? In the eyes of the European Union, this must be a threat to public safety.

It seems the International Federation of Journalists, which looked into the effects of the new European rules on openness, came to the right conclusion: 'The new regulation operates to the full satisfaction of those who still do not wish to place sensitive documents in the public domain and who still do not wish to explain the positions of the Member States before decisions are taken.'

This article was written for: Telepolis

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