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EU: Widespread implementation of the "principle of availability" further eases information exchange amongst European police forces

01 November 2012

01.11.12 - The vast majority of EU and Schengen states have now transposed the Swedish Framework Decision, a 2006 piece of legislation aimed at implementing the "principle of availability". This idea was introduced by the EU in 2004's Hague Programme to ensure that the cross-border exchange of information held by law enforcement authorities is not "hampered by formal procedures, administrative structures and legal obstacles." [1]

According to a draft report on the implementation of the Decision, "most Member States indicated that business processes are in place which implement that principle or that competent authorities concerned are aware of the principle." [2]

31 states - the 27 EU Member States as well as Iceland, Lichtenstein, Norway and Switzerland, who participate in provisions of the Schengen Agreement - are supposed to have implemented the Decision, although only 24 of the 29 who provided information to the Council on implementation have done so.

Nevertheless, the report notes that "the crucial challenges of the information exchange process according to the Swedish Framework Decision were tackled, i.e. the implementation of the principle of availability and the respect of time limits in urgent cases."

The Decision obliges states to respond "within at most eight hours to urgent requests for information and intelligence regarding offences referred to in Article 2(2) of [the European Arrest Warrant], when the requested information or intelligence is held in a database directly accessible by a law enforcement authority."

When it is necessary to apply to a judicial authority to obtain access to information, however, responses to the questionnaire forming the basis of the report indicate that time limits frequently cannot be met.

This would suggest that one of the aims of the principle of availability - "that as large a list of information categories as possible is exchangeable with as little effort as possible (i.e. requiring a minimum of formalities, permissions, procedures, if any) - is still some way from being achieved. [3]

A response from Poland states that "if judicial authorities are implied, it is almost impossible to respond within the 8 hours time limit," while Spain notes that time limits could be met "in the majority of the cases when the requests of information or intelligence of the Law Enforcement forces could be gathered in the data bases. But it can't be verified in cases where judicial authorities are involved."

Some states appear to have gone to extra lengths to apply the principle of availability. One Romanian response says that "in case of serious crimes, procedures were implemented to allow also the identification of telephone numbers subscribers within 8 hours."

The report makes no references to data protection or privacy, and there is very little mention of the internal checks and balances which, while fairly minimal, are permitted by Article 10 of the Framework Decision - authorities can refuse to supply information if it would "harm essential national security interests"; "jeopardise the success of a current investigation or a criminal intelligence operation or the safety of individuals"; or "clearly be disproportionate or irrelevant with regard to the purposes for which it has been requested."

Only responses from the UK make reference to Article 10, with one saying that "all requests are scrutinised to ensure that they are legal, proportionate and justified."

A response from Romania, meanwhile, states:

"The Romanian International Police Cooperation Centre has access to all databases with police relevance. For this access, there is no need for an authorisation or fulfilling a special condition. Data and information obtained from consulting these databases are at disposal of law enforcement authorities from Member States, without any supplementary approvals."

Data exchanged between Member States is also frequently passed at the same time to Europol, "so they can file them in their corresponding archives," in the words of one Spanish response.

Under Article 6 of the Decision, Member States are obliged to share with both Europol and Eurojust information and intelligence exchanged, "insofar as the exchange refers to an offence or criminal activity within their mandate."

The Council's questionnaire and the conclusions drawn from the responses make no mention of Eurojust, but the provision of information and intelligence to Europol - which will soon receive a new legal basis with potentially significantly stronger powers - appears to have been an important concern to those drawing up the report.

The majority of countries note that they exchange information via Europol's SIENA (Secure Information Exchange Network Application) system, thus making it easy to share the same information with the agency itself. SIENA will be upgraded in 2013 to make it easier for state authorities to enter information into the system, and for Europol to process and analyse that information, [4] giving a further boost to the agency's already-powerful analytic capabilities.

Quantitative assessments of the impact of the Swedish Framework Decision remain unattainable: "the key deficiency for assessing the impact of the SFD on information exchange, the lack of statistics, has not been remedied," says the report.

Most Member States do not produce statistics on information exchanged under the provisions of the Swedish Framework Decision, although this may in part be due to the plethora of information exchange systems available to European police forces. A response from the Czech Republic notes that:

"Almost all law enforcement information exchange could be declared as use of the SFD. On the other hand, we do not see any need for doing so. Effective information exchange is the most important thing and it does not matter which legal instrument is used for these purposes."

Sources
[1] Council Framework Decision 2006/960/JHA of 18 December 2006 on simplying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union
[2] 'Council Framework Decision 2006/960/JHA of 18 December 2006 on simplying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union ("Swedish Framework Decision") - Assesment of compliance pursuant to Article 11(2) - Draft Report', 12 October 2012
[3] 'Approach for enhancing the effective and efficient information exchange amont EU law enforcement authorities', 17 March 2005, p.2
[4] '"Ambitious, yet realistic": Europol seeks to further increase its role in European policing', Statewatch News Online, 14 September 2012