EU: Detecting drugs smuggled inside the body
01 November 1999
"Fortress Europe" can be seen as the broad ideology of border control, where exactly who and what crosses EU frontiers are subject to control. While much attention is paid to measures designed to combat the "illegal" immigration of persons, very little is paid to the wider framework of border control. The (confidential) Schengen Common Manual on Border Controls, for example, which was drawn up to consolidate security provisions at the union's external frontiers (which include airports as well as land-borders) goes further than many national "standards". A major aspect of this control is the combating and detection of drug-trafficking.
With the entry into force of the Amsterdam Treaty came the incorporation of the Schengen border control regime into the EU framework. Work begun under the Schengen umbrella thus continues, and, through the ambiguity of the original agreement and subsequent measures that followed, appears to have paved the way for systems of control. The latest development is the draft recommendations for examinations to detect the smuggling of drugs inside the body. While these recommendations will not be legally binding, nor require amendments in national legislation, a Finnish Presidency presentation paper sees them as the first step towards more uniform drug control practice.
The policy was drawn-up on the basis of an analysis of national legal frameworks for examining suspects. As is the case with many EU measures seeking "harmonisation", this preparatory work did not have the aim of finding a common standard in terms of privacy or legal protection of the individual, but rather, to find the other extreme: the extent of intrusion the recommendations could permit. The draft report says:
"In all Member States it should be possible to carry out an x-ray or comparable examination in order to establish whether a person is guilty of smuggling drugs inside the body... In all Member States it should be possible to conduct an examination even WITHOUT the consent of the suspect..." [emphasis in original].
This is, it could be argued, a reasonable provision for detecting the trafficking of "class-A" drugs, assuming of course that there are strong grounds for suspicion and protection is afforded to the individual:
"The Member States should however proceed with the aforementioned measures only where there are reasonable grounds to suspect the person of smuggling drugs inside the body."
However, the essential question of what "reasonable grounds" there could possibly be for suspecting someone of carrying drugs inside their body - for surely there are no visible indicators - is not addressed. While "great care should be taken to observe the principles of proportion and delicacy", the desired yardstick is the EU's "risk profile" on persons likely to be trafficking drugs by this method. Although these profiles are confidential, they are by their very nature inherently stereotypical. They may be based upon some kind of police criteria for suspicion (where the targeted population is a police construction), or upon (or including) the profile of those who have been caught committing such offences. Since the latter is (in practice) merely a reflection on the former, the methodology used in drawing up the profiles is irrelevant: the process is one of constructing stereotypes.
The recommendations suggest that where the suspect does not consent to examination (if they have the right to do so), they should at least:
"be kept under observation for a sufficiently long period for any drugs packages to be eliminated from the body by natural means."
There is also the potential arbitrary use of the powers. Research into police stop and searches and CCTV surveillance in the UK have shown that discrimination and institutionalised racism flourish in the construction and pursuit of suspicion. During preparatory discussions of the recommendations, a number of delegations went on record stressing "the importance<