The principle of information availability

European police cooperation has been haunted for years [1] by the spectre of a federal space favouring the collectivisation of data followed by the progressive institutionalisation of genuinely supranational police bodies, a kind of European FBI, which the OLAF and/or Europol were labelled, either to valorise or discredit them.

This question remains « spectral » in so far as it is barely formally discussed, by fear of another series of questions on the judicial or political controls necessary to the establishment of counter powers if indeed an institution or a network of institutions play the role of a European supranational police.

The Constitution should have settled or at least clarified the question of the relations between Europol and the European Union but its « suspension » extends ambiguities, and nobody really questions the relevance of a federal police, associated to a justice that would also be federal.

The question of police cooperation has therefore been diverted towards a less burning – or at least as it is deemed to be – and less conflictual issue with regards to the stakes of sovereignty: the sharing of the information collected by the various repressive authorities. Indeed,the exchange of data as interoperability of systems does not obviously imply a collectivisation of all data, and even less of the uniform categories of data collection. It doesn’t even imply an obligation of reply. The exchange of data simply supposes the acceptation, on specific and more or less burning issues, of collaboration by principle.

The nature of the information (judicial, police with evidence or police in terms of suspicion) also varies according to the agreements. For example, despite its large number of participants, Interpol has long suffered from the limitations imposed on terrorism and from the weak flow of information in terms of suspicion/prevention.

The information exchange between, on the one hand, the customs, and on the other hand the police services have long remained for the latter in the field of interstate competence and have been solved by bilateral or multilateral agreements (see the Schengen application Convention and the Europol Convention).

The role of the Commission

But since the Amsterdam treaty and the integration of the Schengen agreements in the first and third pillars of the EU as an « achievement », the European Commission had to be more careful on these questions that were kept up with since the TREVI meetings. On these matters, she has to consider the particular sensitivity of all States, and, during the Tampere program, preferred putting the accent on the domains of title IV of the first pillar rather than on those of the third pillar. It is finally quite recently, with the Hague program and in the context of an antiterrorist fight against Al Qaeda, that a specific position on the issue developed under the name of principle of availability.

The principle of availability

In order to well understand the stakes, it is important to distinguish between the principle of information availability and the principle of interoperability of information systems and that of the harmonization of information categories.

The three principles are at the heart of the collaboration between repressive authorities at the European level and beyond, but they indicate various levels of cooperation:

The interoperability of systems technically allows repressive authorities to cooperate if they or their political instances choose to. It deals with the capacity to transfer in an understandable format and more or less rapidly the information required by a foreign authority after having given the approval. See Schengen I and the SIS

The harmonization of information categories supposes a prior discussion on the categories, and an agreement on the definitions regarding what an offence or a crime is; an agreement on the procedures of evidence discovery and their classification as an element in the quest for proof, in order to code information according to the same analysis frames. The Corpus Juris has tried to establish these correspondences. The establishment of a European prosecutor should come back to this. Eurojust rather avoided it and was satisfied with the principle of mutual recognition, which supposes to trust the categories used by the others and to trust the coherence of their system.

The principle of availability clearly goes beyond the interoperability but remains under the harmonization of categories and a real form of European integration. It is determined on the basis of Article 6 of the proposition for a Framework decision, according to which «Member States shall ensure that information shall be provided to equivalent competent authorities of other Member States and Europol, under the conditions set out in this Framework Decision, in so far as these authorities need this information to fulfil their lawful tasks for the prevention, detection or investigation of criminal offences». The measures determining the «equivalence» shall be adopted by a committee composed of representatives of Member States and be presided over by a Commission representative (article 5.2 and 19). The exchange shall be done on the basis of information demands (included in the appendix of the proposition) and can include specific demands such as information of the DNA profiles.

The principle of availability thus prevents a designated authority to purely and simply ignore a demand from an equivalent foreign authority if the information is available for a national authority which competences are equivalent. The information no longer depends on the «good will» of the repressive authority of the designated State.

This « obligation » differentiates the Commission’s proposition from the Swedish initiative with regards to information et intelligence exchange, and from the Prüm treaty of May 27th 2005 in that it is both general (it covers the 25 countries of the Union and Europol) and does not allow the repressive authorities to answer at their discretion. It is based on «the need (of) this information to fulfil their lawful tasks» and is limited to «the prevention, detection or investigation of criminal offences» [2].

We can intellectually decompose the principle of availability in data exchanges into two sub principles: visibility and readability.

The « visibility » of all the data of the various interconnected bases is guaranteed, in so far as the knowledge of the existence of this information is possible thanks to a direct online access, either through a system of index for those that are not directly online (mostly via a query such as hit/no hit as in the case of Eurodac or the European information system Europol), a index system that is completed by a standard demand form. This allows a State requesting information to know if the data is availablein another country – it is impossible for a State to hide to this authority what is available between its national authorities [3]. But knowing that information exists does not always give access to it as the existence of request forms shows us.

The «readability » of the information, or the access to the information content, once the requesting repressive authority knows that there is a country detaining an information, becomes more or less automatic for the online access but with regards to the sensitive information – which are almost all in an index or demands – indeed depends on the procedures – that vary from one text to another. In such, the proposition of a framework decision (articles 8 and 11) is different from the Prüm treaty, though both texts mention a certain data availability. Thus, there is a series of cases in which the possibility to refuse to give the information is planned, but these cases tend to become the exception rather than the norm, and must moreover be justified (articles 13 and 14).

In the presentation of the framework decision, the Commission did not distinguish between visibility and readability as we just made, and tends to present the principle of availability as a form of standardization beyond borders enabling an equal access to a repressive authority’s information to other national repressive authorities, the other member States’ repressive authorities, and to Europol in the limits of its attributions. The Commission puts the accent on the « comparative advantages » of the proposition compared to other initiatives in competition among which that of Prüm, but eventually doesn’t really frame the debate on the content, the essential stakes. The equivalent access is important in the principle of availability, but it is one element among others. And, if Prüm clearly places the mutual recognition at the heart of its plan and does the link with the data availability in this form, the proposal for a framework decision appears more discreet or even confused on this aspect. And it is important to ask a clarification of the notion of equivalence. Does it deal with the access to information such as it seemed to be the case in the considerations preceding the proposition of framework decision, or does it deal with the nature of the repressive authorities? On the other hand, the proposal is much more precise on the notion of timely justification. We will not compare the Prüm treaty and the proposal for a framework decision on the principle of availability in details, but it seems doubtful to consider the Prüm treaty as a « step forward », a « laboratory » on this issue. It rather appears as a conception in competition with the data availability [4].

The newness and the strength of the concept of availability

The arguments in favour of the principle of availability suggested by the Commission in the proposal for a framework decision are strong.

- Firstly, the principle of availability is inscribed within the development of a space of liberty, security and justice at the European level and strictly follows the dispositions of the European Union Treaty(art 29), which puts the accent on a system of information exchange with regards to a fight against crime that would be free of borders obstacles. The Hague program adopted on November 4th, 2004 by the European Council and its application program transformed a better information exchange between European countries into a prerequisite for the success of the liberty, security, and justice area, by implicitly considering that the level of integration and efficiency of Schengen on this issue (SIS) was too limited [5]. This explains why the legal base is that of Article 34(2)b of the European Union Treaty [6].

- Secondly, in a context in which governments insist on the necessity for police and intelligence services to cooperate at a European and most of all international and transatlantic level, it is impossible to refuse to facilitate the exchange of data. The coherence between the discourses in favour of cooperation and its application for concrete results goes through a rapid exchange of information, thereby limiting the number of interlocutors and standardizing the procedures. If the fight against terrorism really goes through a capacity to prevent actions, which supposes the accumulation of information at the transnational level and the anticipation of clandestine groups’ actions, then it is impossible to continue with the current system, much too slow, too segmented and too complex and with a too importance space given for the reason of State [7]. The principle of availability is thus presented as an answer to the terrorist threat of Al Qaeda, which would integrate within its logistical and tactical organisation the weaknesses linked to the segmentation of the repressive services and to the weak rapidity of their information exchange. Its topicality would be even stronger since the 7th and 21st July 2005 London attacks

 Thirdly, by putting into question the « ownership » practices of the authorities with regards to the available information, the principle of availability tackles one of the central problems of the retention of information by an authority and the refusal to cooperate. This aspect may be the most important though it is not the most explicit. The concept of availability is thus crucial because it has implications, via the transnational exchange of data, for the relation between repressive authorities, even within one country, for the relation between these authorities and the political authority, as well as for what each country defines as a repressive authority. Therefore, it has an influence on the concepts of national sovereignty and reason of State, as well as on the concept of democracy. If it is applied, it will reconfigure the sociological norms regulating the practices of repressive authorities among themselves. It is thus clearly innovative, and surely even more than what is said in the Commission’s presentation text in which the accent is put on the technical and judicial simplification, rather than on its political and sociological implications.

According to its promoters, the principle of availability enables to exchange information at the European level in a coherent and homogeneous manner within the entire European Union space (contrary to the Prüm treaty), in a more direct manner between repressive authorities (contrary to the systems that need the intervention of different hierarchic authorities or national central points of contact), more rapid (via the direct access and simplified demand procedures once it is known who detains the data, less costly( a discussion on the cost of this project may be necessary to settle the additional cost in terms of work) while keeping the possibility for national interests to express as the differences in the access conditions will be maintained between the States’ repressive authorities, even if the direct exchange of information between police services (and intelligence services) becomes the rule, the exception being the use of the central authorities channel and the judicial body when the accounting rules do not coincide.

The various debates on the principle

For various reasons, some actors do not agree with the establishment of the principle: a limited efficiency or legitimacy reasons.

On the operational aspect, some put the accent on the supplementary work that will be needed, on the heaviness of the management of data coming into the system(s) and on the time spent to deal with the other agencies’ demands. Managing the exchanges would then be very complex and costly in terms of infrastructure and the utility of the principle would only be marginal. It would be more pertinent to efficiently use the Schengen system instead of creating a new system; and the will to reform before the optimal application of the existing systems would be counter productive [8].

The principle of availability implies deciding who will have access to the system and who will be obliged to answer. Will it be absolutely all local services of all the European Union’s repressive authorities, with a risk of « cacophony », or will it be necessary to set up « filters » with national central offices? But in this case, would the argument of the rapidity and of the complete availability not diminish? If every government is free to choose its formula, the principle of availability is « born dead » [9]. The choice of a committee giving a verdict on this issue and on the equivalence of the repressive authorities will not resolve the problem despite the appendix 3, and raises the problem of the Parliament’s control on this committee’s decisions.

At the crossing of these criticisms, the interviews with the police repressive authorities show that a norm implicitly exists, that would be the « right » for agencies to share or not information that « belong » to them. Indeed, the availability of information goes against the idea that information gives a certain power, has a specific value and that it is « convertible » in terms of reciprocity. The information suddenly becomes « white »: a simple fact that the data processing will valorise. Information is no longer the property of a specific authority. This is perhaps the most innovative aspect of the concept. But the idea of availability implies a mutual recognition of what is linked to relevant information on the judiciary aspect, to relevant information on the operational aspect, or to the unverified rumour. It also implies that one considers the errors, the divergences in the analysis of the threat represented by an individual or an organisation (See Greenpeace: France/The Netherlands) and the limited but still existing possibility of an intoxication. But the conditions of the information collection are « neutralised » in this approach, which refuses any discussion on the harmonization of categories. Moreover, the implicit norm of the « property » of information that is typical of the police habits should not make us forget the main element, i.e. that the information on a person belongs to her (article 8 of the Convention on Human Rights). We will come back to this aspect later in our discussion.

One of the main beneficiaries of the principle of availability will certainly be Europol, because this organisation will no longer depend on the (all relative until now) good will of national repressive authorities. Those who fear the emergence of a federal police have well understood the relation between the principle of availability and the future power of Europol, all the more that in the beginning, on the technical aspect, it would probably be Europol’s information system that would serve as the application point to the principle of availability which functioning regarding organised crime and terrorism seems to have been established de facto.

In addition to application difficulties, other operational actors highlight the stakes of sovereigntyand of reason of State and prefer the current system. It seems important to them that the government decides what to share with the other European States, without having to justify. Moreover,the principle of availability has an indirect effect on the relation domestic services have one with another, and on their level of cooperation by introducing at the European scale a prerequisite barely realised at the national level. This generates some unconfessed resistance by the agencies regarding the principle’s implementation. It is indeed wrong to suppose that the domestic level is not subject to any practices of property. Though there is no war of police, the various repressive authorities are careful about the relation between the work needed to obtain the information, process it, and the potential arrests that may follow, as well as their media and political impact.

Consequently, the principle of availability goes beyond the subsidiary if, in order to fully function, it requests a global recomposition of the relations between repressive authorities, both domestically and at a European level.

This major problem may be read through two angles. We can either consider the competition between services as a proof of inefficiency and therefore decry it as a police war, orconsider it as a means to control the police and intelligence services for the political and judicial bodies, thereby using the comparison between various information systems. It is necessary to have a debate on this aspect before willing to conclude in favour of uniformity in the name of efficiency. The march towards a Europeanization of the data, without any preliminary definition of categories and without any real data protection at a supranational scale may weaken the trust the citizens put in the entire system’s equity and generate – whether rightly or wrongly – the idea of a European «big brother», equivalent to the American «total information awareness». The fear of information systems that would be too unified is certainly stronger in those countries where the memory of dictatorship has not yet been erased. The European Parliament should grasp the occasion to discuss whether the tendency to present the constitution of a sole transnational information network linking the various European (and transatlantic) repressive authorities as a form of efficiency in the fight against crime and terrorism is well-founded or not. The division of intelligence and judicial police services was one of the founding elements of democratic regimes in the nineteenth century. The functional and/or geographical division of several police (civilian, civilian but with a military status, military…) has also long been considered by the judicial and political authorities as a way of not being too dependent on the sole information of a service or a group of services cooperating, but sharing the same sources, rather similar interests and potentially the same ideology. Are these elements put into question now by the data exchanges or not? Anyhow, the central debate around the principle of availability seems to stand less in the very technical nature of its implementation than in its aims and effects.

The same institutional actors as well as Human Rights NGOs insist on reasons linked to the very legitimacy of the principle of availability and on its effects on civil liberties.

They highlight the fact that the argument of rapidity and of prevention of the antiterrorist fight against Al Qaeda should not extend to the whole spectrum of police activities, organised crime, petty criminality, illegal immigration, and fight against false papers, visa management, and biometric data.

They particularly insist on the qualitative difference between data shared by the intelligence services and the repressive authorities (police, customs, judicial bodies), which eligibility in front of a court is not the same, and which credibility, and veracity depend on the conditions in which the information was obtained. In order to function, the principle of availability supposes that there is an agreement on the categories of the authorities that will have access to these data, and there should be a discussion about the fact that the term «law enforcement» was translated into «repressive» (a larger category) in the first version and is currently translated into «competent authority» with no more precision is particularly problematic. The Parliament must absolutely request the Commission to explain this aspect and clearly say if the intelligence or administrative services in charge of foreigners are part of these authorities.It is also necessary to consider the possibility of excluding people (and in the case of repetition, the services) who have an inappropriate use of the information or who give wrong information, and particularly in terms of «prevention». Thus, a fundamental discussion on what is a competent authority is necessary. What are the criterions, other than organic, that make an authority «competent», and what are the limits of its competences?

In some countries and for specific missions, an intelligence service may have powers generally attributed to the judicial police, which is not the case in other countries. Then, will the « competent authority » label be delivered? The Appendix 3 suggests the criterions but does not touch on the possible overlapping. Is it possible to agree on this issue on the European or should we trust each State on its own definition of the competent authority and of the legitimate spectrum of information to be collected and processed into databases?

The differences in status of the (repressive) competent authorities would also be too big between the national systems, particularly in their relations to the judicial and political authorities and their degree of autonomy. Consequently, the generalisation of an exchange of data availability would introduce abias putting into question de defence of private life of individuals and opening a secret door on the constitutional principles of a given State.In deed, the available information must be accepted in the same way and at the same stage of the judicial procedure (before of after an investigation procedure) in the different countries and that the rights of the defence and the admissibility of the information as a judicial proof be not diverted by the use of the transnationalisation of data (a way for the prosecutor to «pick here and there» penalizing the defence, unable to do it). In this regard, we should note that after the consultations, the Commission amended the text on this issue and allowed the inclusion of the right for the defence to consult the requested and obtained information.

Lastly, we call to mind the prerequisite of a harmonization of the data protection, of the conditions of the transfer of data and of when and via whom this occurs. But for the moment the proposition of a framework decision is still not finalized and one could imagine that the Parliament only accepts the application of the framework decision on the principle of availability after the application of the framework decision on the data protection, particularly as at the time being, the proposal for the data protection in the third pillar does not include Europol though this organization is the first beneficiary of the availability of data. One should note that the principle of information traceability enabling to « watch the watchers » has been introduced, and that it partly limits the dangers of the transnationalisation of data exchange. This is a positive aspect. But the texts of the Prüm treaty and the Commission’s proposals seem to differ on this specific aspect of data protection, and this raises the problem of their simultaneous use. Prüm cannot present as a laboratory if its level of protection is inferior or even different. This should be clearly inscribed in the Parliament debates.

Conclusion

The principle of availability falls much more under mutual recognition than uniformisation or harmonization, and, as such, will probably suffer from numerous application difficulties.

It presupposes an agreement between all parties on what information is, on the way one has to process it and on what they are used for.

It also presupposes the organisational and cultural forms of the various (repressive) competent authorities to be close enough not to need fundamental discussions on each authority’s powers, and particularly on the distinction between intelligence and judicial police powers on the one hand, and on the other between relevant information in an Anglo-Saxon or continental law procedures.

Its main asset is that it tackles the implicit norm of information «property» by the agencies having collected them and that it questions its legitimacy, as this norm paralyses the rapidity of information exchanges and subjects these exchanges to a form of reciprocity or even of «commercial» exchange by hiding behind the argument of sovereignty.

But the problem that is inherent to this norm being put into question is that of the delegitimization of any segmentation of the information. But democracy lives on these limits, on the frontiers of criminal law, on the oppositions and counter powers necessary to the power of the police (as an institution or a network of institutions).

The decompartmentalization of information that the principles aims at is dangerous in qualitative terms and necessarily needs to be controlled through measures of protection of the rights of the individual beyond the sole traceability of information.The European Union can only lay claim to the principle of availability if she guarantees the protection of the fundamental rights better than the Member States.If such is not the case, the principle of availability is highly problematic because it makes a breach in the domestic systems of protection. She ought to insist once again on the necessity to clarify the nature of the repressive authorities and on the fact that it would be prejudicial if the intelligence services become part of these repressive authorities. The notion of «competent authority» or of «law enforcement» cannot be left to the sole assessment of each government.

Bibliography

COM (2005) 490 final

JO C 53 - 3.3.2005

JO C 198 -8.12.2005

JO C 316 -11.27.1995

JO C 187 - 7.3.2001

Draft framework decision crimorg 124, 13986/05

Tête-à-tête interviews, telephone interviews with police officials from several Member States regarding their understanding and their interest, whether it be favourable or not to the principle of availability.