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									         AGIS PROJECT JAI/2003/AGIS/002




STUDY - Feasibility study on the creation of a database on
           investigations and prosecutions




                     VOLUME 1
                       AGIS PROJECT JAI/2003/AGIS/002
  Feasibility study on the creation of a database on investigations and prosecutions




                                  VOLUME ONE
CONTENTS

List of Participants                                                                   3
Final Project Report                                                                   7
Reviser's Report: Comparative and Criminal Law Report by Dr. Helen Xanthaki        24
Reviser's Report: Human Rights and Data Protection Report by Prof. Birkinshaw      82
Reviser's Report: The Political Dimension by Dr. Constantin Stefanou              110


ANNEXES


Annex 1- Project Application
Annex 2 - Project Background
Annex 3 - Project Questionnaire




                                             2
                   AGIS PROJECT JAI/2003/AGIS/002
Feasibility study on the creation of a database on investigations and prosecutions




                              LIST OF PARTICIPANTS




       Role                     Name                                    Affiliation

     AUSTRIA           Dr Robert Kert             Universitätsassistent
                                                  Institut für Strafrecht und Kriminologie
                                                  Universität Wien
                                                  Schottenbastei 10-16
                                                  A-1010 Wien
                                                  T: +43 1 4277 34652
                                                  F: +43 1 4277 34659
                                                  Email: robert.kert@univie.ac.at

     BELGIUM           Michael Dantinne           Criminologist
                                                  Researcher - Lecturer
                                                  University of Liège
                                                  Department of Criminology
                                                  Bd du Rectorat, 3 - Bat. B33
                                                  4000 LIEGE
                                                  T: +32 43662963
                                                  F: +32 43663144
                                                  Email: mdantinne@ulg.ac.be

    BULGARIA           Dessislava Bijeva          Lawyer
                                                  Project Manager
                                                  EuropeAid
                                                  USAID
                                                  T: +359 2980 9951, +359 2 980 2414
                                                  F: +359 2 980 3220
                                                  Email: dbijeva@bulpost.net

     CYPRUS            Spyros Ierotheou           -Lawyer- Legal Advisor in EU Law
                                                  Partner in the Law Firm Stathis Kittis & Co.
                                                  -Former Legal Officer of European Law in the Law
                                                  Office of the Republic
                                                  Email: ierotheou@cytanet.com

                       Michalis Kamperis          -Legal Advisor in the Office of the Commissioner for
                                                  State Aid in Cyprus
                                                  -Lawyer- Legal Advisor in EU Law
                                                  Partner in the Law Firm Stathis Kittis & Co.
                                                  Email: kamperis@kittis.com

 CZECH REPUBLIC        Doc. Dr. Jaroslav Fenyk,   First Deputy Supreme Public Prosecutor
                       Ph.D.                      Supreme Public Prosecutor´s Office of the Czech
                                                  Republic
                                                  Jezuitská 4
                                                  660 55 Brno
                                                  T: + 420 542 512 302



                                           3
                                      F: +420 542 219 621
                                      Email: fenyk@nsz.brn.justice.cz

DENMARK   Kenneth Hansen              LLM, Expert in European Law
                                      Legal Advisor
                                      Hellenic Ministry of Foreign Affairs
                                      T: +30 210 8990839
                                      Email: hansen@gcr.gr

FINLAND   Jenna Villanen              Assistant Legal Counsel
                                      Susiluoto Attorneys-at-Law Ltd
                                      T: +358 40 593 4903
                                      F: +358 9 6869 1169
                                      Email: Jenna.Villanen@susiluoto.com

          Dr Anne Kletzlen            Lawyer
FRANCE                                Marseille Bar Association
                                      51 rue Jean Rameau
                                      Marseille 13012
                                      T: +31 1 9185 4542
                                      Email: kletzlen@club-internet.fr

GERMANY   Prof. L. Böllinger          Fachbereich
                                      Rechtswissenschaft Universität Bremen
                                      P.O. Box 330440
                                      D-28334-Bremen
                                      T: +49 4212183068
                                      F: +49 4212189316
                                      Email: boe@uni-bremen.de

HUNGARY   Prof. Dr. habil. Akos       Head of Department
          Farkas                      Department of Criminal Procedure and Prison Law
                                      Institute of Criminal Justice
                                      Faculty of Law
                                      University of Miskolc
                                      H-3515 Miskolc-Egyetemvaros
                                      T: +36-46-565-178
                                      F: +36-46-565-179
                                      Email: farkas.akos@chello.hu
                                      Web: http://www.uni-miskolc.hu

GREECE    Vicky Zabaza                LLM Athens
                                      Attorney at Law
                                      Legal Researcher at the Centre for European
                                      Constitutional Law (Tsatsos Foundation) and at the
                                      Institute of Constitutional Research.
                                      Email: Khansen@ath.forthnet.gr

IRELAND   Andrea Ryan, B.A.           Lecturer
          Dip. Phil. B.C.L. LL.M.     School of Law
                                      University of Limerick
                                      T: + 353 61 234190
                                      F: + 353 61 202417
                                      Email: andrea.ryan@ul.ie

 ITALY    Dr. Andrea Vaccarini        Expert in Commercial law
                                      Rome Bar Association
                                      Email: avaccari@q8.it
                                      Email: A.Vaccarini@tiscalinet.it



                                  4
              Dr. Maria Cheretaki       Expert in European law
                                        Athens Bar Association
                                        Email: mariachertaki@yahoo.com


LUXEMBOURG    Roland Genson             Représentation Permanente du Grand-Duché de
                                        Luxembourg
                                        auprès de l'Union Européenne
                                        75 avenue de Cortenbergh
                                        B - 1000 Bruxelles
                                        T: +32 2 737 56 43
                                        F: +32 2 7375610
                                        Email : roland.genson@rpue.etat.lu

NETHERLANDS   Dr. Ronald Leenes         Assistant Professor in Law and IT
                                        University of Tilburg, CRBI
                                        Post Box 90153
                                        NL-5000 LE Tilburg
                                        T: +31 13 466 8265
                                        F: +31 13 466 8149
                                        Email: R.E.Leenes@uvt.nl

  POLAND      Prof. Michael Plachta     Vice Dean
                                        Faculty of Law
                                        University of Gdansk
                                        Bazynskiego 6
                                        80-952 GDANSK
                                        Poland
                                        T: + 58 552 9944
                                        F: +58 552 9934
                                        Email: plachtam@panda.bg.univ.gda.pl

 PORTUGAL     Pedro Caeiro              Universidade de Coimbra,
                                        Faculdade do Direito,
              and                       3004-545 Coimbra,
                                        Portugal
              Miguel Angelo Lemos       Universidade de Coimbra,
                                        Faculdade do Direito,
                                        3004-545 Coimbra,
                                        Portugal

   SPAIN      Javier Garcia             Madrid Bar Association
                                        Avenida de Galicia, 109.2
                                        CP 36216
                                        Vigo (pontevedra)
                                        Email: jav.garc@worldonline.es


  SWEDEN      Prof. Dan Magnusson       Swedish National Economic Crimes Bureau
                                        Box 820
                                        101 36 Stockholm
                                        SWEDEN
                                        T: +46 (0) 8 762 01 70
                                        Mobile: +46 (0) 70 682 80 08
                                        Email: dan.magnusson@ekobrottsmyndigheten.se


    UK        Bill Tupman               Department of Politics
                                        Amory Building
                                        University of Exeter


                                    5
                                               Exeter EX4 4RJ
                                               T: +44 1392 263169
                                               F: +44 1392 263305
                                               United Kingdom
                                               Email: W.A.Tupman@exeter.ac.uk


   THIRD PILLAR      Dr. Helen Xanthaki        Senior Lecturer
     REVISER                                   Academic Director
                                               Sir William Dale Centre
                                               IALS
                                               School of Advanced Study
                                               University of London
                                               T: +44 20 78625861
                                               F: +44 20 78625855
                                               Email: Helen.Xanthaki@sas.ac.uk

    POLITICAL        Dr. Constantin Stefanou   Fellow
     REVISER                                   Sir William Dale Centre
                                               IALS
                                               School of Advanced Study
                                               University of London
                                               T: +44 20 78625861
                                               F: +44 20 78625855
                                               Email: Constantin.Stefanou@sas.ac.uk

HUMAN RIGHTS/DATA    Prof. Patrick J           Institute of European Public Law
PROTECTION REVISER   Birkinshaw                University of Hull
                                               Hull HU6 7RX
                                               T: +44 1482 465857, +44 1482 466352
                                               F: +44 1482 466388
                                               Email: P.J.Birkinshaw@hull.ac.uk

    PROJECT          Dr. Helen Xanthaki        Sir William Dale Centre
  CO-ORDINATOR       Dr. Constantin Stefanou   IALS
                                               School of Advanced Study
                                               University of London
                                               T: +44 20 78625861
                                               F: +44 20 78625855




                                          6
                    AGIS PROJECT JAI/2003/AGIS/002
Feasibility study on the creation of a database on investigations and prosecutions




                        Final Project Report




       Dr. Helen Xanthaki                         Dr. Constantin Stefanou
             Senior Lecturer                                  Fellow
           Academic Director
Sir William Dale Centre for Legislative       Sir William Dale Centre for Legislative
                 Studies                                       Studies
  Institute of Advanced Legal Studies           Institute of Advanced Legal Studies
          University of London                          University of London




                                          7
Introduction


The proposed topic concerns a comparative examination on the national laws of twenty
member states and accession countries with reference to the legality and feasibility of a
database on prosecutions and investigations. More specifically, the project aims to assess
whether the national legal orders of these countries can allow the creation of a European
database on prosecutions and investigations described in measure 12 of the Programme of
measures to implement the principle of mutual recognition of decisions in criminal matters as
a means of resolving the inherent problems of mutual legal assistance, namely the
fragmentation of law in this area accentuated by lack of ratification of international and EU
instruments, dual criminality, grounds for refusal, reciprocity, translation, process, diversity in
the national laws of the Member States, and problems occurring by the application of the re
bis in idem principle in un-coordinated multiple investigations/prosecutions.


Problem identification and background


There are two dimensions to this project: the strengthening of mutual legal assistance
mechanisms with specific reference to the pre-trial procedures; and the introduction of EU
criminal databases.


The results of mutual legal assistance, as it stands today, are negligible despite the existence
of numerous bilateral and multilateral agreements. The need for improvement in the area of
legal assistance is confirmed by the 2002 Annual Report of Eurojust. This is crucial in the
case of prosecutors and investigations where the need for prompt, adequate and exploitable
responses to requests are necessary. The matter is complicated further due to data protection
concerns especially in investigations and prosecutions where a judgement with the force of
res judicata is by definition absent. Moreover, lack of coordination of prosecutions and
investigations often leads to an unwelcome end of pre-trial procedures due to the application
of the principle of re bis in idem in multi-jurisdictional cases. The 2000 European Convention
on Mutual Legal Assistance is a step in the right direction, although it is yet to be ratified by
all Member States. Eurojust is of assistance although          its effectiveness will be highly
dependent on the implementation of Article 42 of its Convention by all Member States. The
Greek initiative on re bis in idem, discussed by the Working Group on Substantive Criminal
Law after its first reading in the Committee of Article 36 (CATS) on 3rd June 2003, has still to


                                                8
bear fruits but the work of the Council and the Commission on this topic is continuing.


The results of the IALS 1999 Falcone study on the use of criminal records as a means of
combating organised crime showed a great degree of discrepancy as to the existence, use and
access to national criminal records. The IALS 2000 Falcone study demonstrated that effective
combat against organised crime can only be achieved through the ultimate establishment of a
European Criminal Record hosted by Eurojust and supervised in the long term by the
European Public Prosecutor. The IALS 2004 Commission funded study on the feasibility and
legality of a databases of legal and natural persons involved in terrorism and organised crime
demonstrated that national archives are not efficient in the combat of transnational and
organised crime. In view of this and the IALS findings on the inefficiencies of current
mechanisms for mutual legal assistance, the IALS and its Sir William Dale Centre support
avidly the ultimate centralisation of databases at the EU level as a means of obtaining
accurate, comprehensible and useful information on activities in the common area of freedom,
security and justice which by definition extends beyond the boundaries of each member state.
It is doubtful, however, that the current poor level of harmonisation in the fields of
substantive and procedural criminal law could allow centralised databases to be received by
the national laws and indeed the national public opinion of the member states.


Aims of the study


This multi-national interdisciplinary feasibility study on the creation of an EU database for
investigations and prosecutions aims to:
(i)     survey current problems in mutual legal assistance for prosecutions and investigations;
(ii)    assess the legality and feasibility of the intergovernmental approach;
(iii)   evaluate the feasibility and legality of a central database; and
(iv)    examine the political implications of such an introduction.


Method of approach


In this study the IALS utilised its usual methodology for multi-national interdisciplinary
comparative studies. For a comparative research of such a scale and depth the most effective
approach is the compilation of reports about national legislation by national legal experts from
each jurisdiction. Twenty national experts were called to write a report on the legal and


                                                 9
political position in their own country. The national experts participating in this study are of a
highest international calibre and serve as prosecutors, civil servants, academics and
practitioners in their country. As a means of facilitating the comparative analysis of the
national reports, the latter were drafted on the basis of a questionnaire which was approved by
the Commission and Eurojust.


The national reports were analysed comparatively and summarised by Dr. Helen Xanthaki
who served as the EU criminal law expert and analysed the legality of a database for
investigations and prosecutions based on the national laws of the member states and under EU
law. Prof. Birkinshaw served as the data protection horizontal reviser and assessed the
legitimacy of the database from the point of view of EU and international data protection. Dr.
Stefanou, the politics horizontal reviser evaluated the feasibility of the database. National
reports were quality controlled by the horizontal experts and the Coordinators. The horizontal
experts’ reports were quality controlled by the national experts and the Coordinators.


Drs. Xanthaki and Stefanou, compiled the final project report, which constitutes a summary
and compilation of the findings of the study. The final report was distributed to all revisers
and national experts for comments as part of the internal evaluation of the project. The report
reflects the Co-ordinators’ view of the study, but all effort has been made to ensure that
objections to the conclusions and recommendations by national experts and revisers have
been noted. In this sense, the final report is the compilation of the conclusions of the group of
experts who participated in this AGIS study.


Annexed to this final report are:
(a) the background paper submitted to the Commission as part of the application for funding;
(b) the application for funding to the Commission including the proposed budget;
(c) the questionnaire approved by the revisers and the Commission;
(d) all national reports as submitted after the comments of the revisers and the Co-ordinator;
   national reports are accompanied by the relevant legislative texts in the language of their
   publication; please note that responsibility for accuracy lies with the national experts;
(e) the three revisers’ reports as submitted after the comments of the national experts and the
   Co-ordinator; please note that responsibility for accuracy lies with the revisers and
   national experts with reference to national data;
(f) the final budget for the project.


                                               10
Heterogeneity of national systems for recording investigations

The comparative analysis of member states’ provisions on the recording of investigations
demonstrates considerable and profound complexities and diversities. Not all member states
record investigations. Although databases for investigations exist in Austria, Belgium,
Cyprus, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Italy,
Luxembourg, the Netherlands, Poland, Sweden and the UK, in Ireland, Portugal and Spain
there is no database for these purposes. However, records are kept for the management of
criminal investigations. Most national databases are automated.


Moreover, although Belgium, Denmark, France, Germany, Hungary, Italy and Luxembourg
maintain a single national database for investigations, in Austria, Cyprus, the Czech Republic,
Greece and Sweden data on investigations are scattered in regional databases which are not
necessarily linked with each other and operate independently. In the Netherlands, Poland and
the UK multiple databases intersect and complex the availability of data on investigations.


In Belgium, Cyprus, the Czech Republic, Denmark, Luxembourg, Greece, Poland and the UK
place their archives for investigations with the Police. However, in France the investigations
database is placed with the Public Prosecutor, whereas in Germany the registry for
investigations is placed with the Federal Criminal Law Enforcement Authority.


Furthermore, although in most member states databases for investigations are introduced by
law, in Cyprus and Poland they are established by orders of the police authorities. In Ireland
and the Netherlands there doesn’t seem to be an express legal basis for these archives.


Despite the discrepancies as to the existence, number, host and legal basis of the national
databases for investigations, their contents are rather similar. Databases include mostly
criminal investigations, personal identification data of the person under investigation, and
information on the crime under investigation. In Luxembourg the database for investigations
also includes the legal basis on which the investigation has begun. In France, Italy,
Luxembourg, the Netherlands and Poland databases also include information on the victims
of the crimes under investigation. In the Danish model markings on the level and
characteristics of criminality of the specific person is also included in the database.




                                                11
Heterogeneity of national systems for recording investigations


Databases for prosecutions are available in only half of the member states. Thus, databases for
prosecutions exist in Denmark, France, Germany, Hungary, Ireland, the Netherlands and
Sweden. Belgium, Bulgaria, Cyprus, the Czech Republic, Greece, Italy, Luxembourg,
Portugal, Spain and the UK do not have databases for prosecutions and there seems to be no
intention of introducing them in the near future. In these member states data on investigations
and prosecutions are included in a single archive.


Where available, databases can be fragmented or centralised at the national level. In Austria,
Bulgaria, the Czech Republic, Denmark, Germany, Hungary and Ireland there is a single
national centralised database for prosecutions. In Belgium, France, Italy, Luxembourg, the
Netherlands and Sweden data on prosecutions is held in regional databases.


Databases for prosecutions are mainly held by the Public Prosecutor’s Offices. This is the
case in Austria, Belgium, Bulgaria, the Czech Republic, France, Germany, Ireland and the
Netherlands. However, in Denmark, Germany and Italy the database is hosted by the central
authority maintaining the criminal records of convicted persons.


The content of databases for prosecutions is simply a notification of prosecutions for all
criminal acts committed within the territory of the country and any information relevant to the
prosecution. All databases are automated.


The discrepancies between national legal systems in the method of keeping record of
investigations and prosecutions draws a picture of patchy efficiency in the ability of national
legal authorities to utilise and analyse national data on investigations and prosecutions. As a
result, national authorities are deprived of the structure which can allow them to process
sporadic information as a means of identifying and preventing organised or transnational
crime within the EU. Consequently, organised and transnational crime may go undetected
provided that a clever design of the location of activities avoids jurisdictions with effective
record keeping and exploits jurisdictions where data keeping is not as efficient. Even in cases
beyond organised crime, national authorities lack a structure for avoiding double investigation
and prosecutions. This may result to either a duplication of effort and poor use of resources,
or to a lack of the complete picture of criminal activities if the latter have taken place in


                                              12
another member state. Within the common area of freedom, security and justice this can no
longer be acceptable. A unified archive for investigations and prosecutions will address these
problems. It is recommended that one archive includes data on both investigations and
prosecutions as this is the prevailing model in the majority of member states. Moreover, in
view of the lack of harmonisation in criminal procedural laws a unified archive will avoid the
need for a common definition and delimitation of investigations and prosecutions.


RECOMMENDATION 1
A unified archive for investigation and prosecutions must be introduced in order to
tackle the current lack of data on investigations and prosecutions abroad.



General principles governing the archive for investigations and prosecutions


In order to be received by the national laws of the member states, the archive –whatever its
format- must comply with the principles of legality, proportionality and necessity.


The archive must comply with the principle of legality. It must be established by law, namely
by a Framework Decision or, if it is passed after the Constitutions enters into force, by a
European law. The purpose of the archive as a means of combating organised crime must be
expressly introduced by its constituting legal instrument. The archive must only operate to the
extent expressly stipulated by its constituting instrument and in respect of national, EU and
international human rights and data protection instruments.


The archive must comply with the principle of proportionality balancing the pressing aim to
combat serious, organised and transnational crime with the equally imperative need to respect
the rights of citizens whose details will be included in the archive. The archive must contain
exclusively data necessary for the achievement of its aim. Data in the archive must only be
used for lawful purposes. The initiation of a joint investigation and prosecution as a result of
data in the archive must involve a crime of proportionate seriousness.


The archive must comply with the principle of necessity in relation to its contents and access
to the data included in it. More fundamentally, its constituting instrument must expressly
declare the necessity of its introduction on the basis of the need to introduce a transnational


                                              13
archive to counteract transnational crime; the need to realise the re ne bis in idem principle
which is already a general principle of law common to the laws of the member states, is
applicable to the Schengen countries under Article 54 of the Schengen Convention and which
in due course will be expanded to refer to re ne bis in idem at the EU level; the gap in
collaboration of national authorities at the stage of investigations and prosecutions; and the
inefficiencies of current mutual legal assistance instrument in this field.


On this latter point the study has identified the known problems of current mutual legal
assistance mechanisms which include the limited mandate of the current instruments for
mutual assistance which broadly cover either investigations or prosecutions; the
fragmentation in the implementation of mechanisms by the member states; the lack of
efficient enforcement mechanisms for international and bilateral instruments which seem to
be the main tools utilised by national authorities; the disproportionately long time required for
the completion of a transmission of data; the complexity of the procedure involved for the
transmission of data; the unfortunate reliance of the current system of data exchange relies
upon the national laws and procedures which are not standardised, let alone harmonised; the
resulting reluctance of some member states to allow access to data on investigations.


The archive must be established and function in a manner that encourages the rehabilitation of
ex-offenders. The contents of the archive must be maintained with accuracy and must be
updated regularly to allow for erasure of older or modified data. The contents of the archive
must be kept in the strictest confidence and access must be allowed to authorised persons and
bodies only. The subjects of records must have direct and immediate access to their own files.
The subjects must be awarded the right to appeal against the contents of their files should
there be inaccuracies or errors.


RECOMMENDATION 2
The archive for investigations and prosecutions must be established and must function
under the principles of legality, proportionality and necessity.


The format of the archive: a network of national archives or an EU database?


Although the necessity of the archive for investigations and prosecutions is widely accepted,
the format of this archive is not uniformly accepted by all member states. If one were to

                                                14
follow the possible approaches identified in measure 4 of the mutual recognition programme
with respect to options designed to improve circulation between the Member States of
information on convictions, three possible options are also available for the archive of
investigations and prosecutions:


   (i)     facilitating bilateral information exchanges on investigations and prosecutions;
   (ii)    networking national archives for investigations and prosecutions; and
   (iii)   setting up a genuine European database for investigations and prosecutions.


The first option, facilitating bilateral information, has been tried and tested over a period of
many years. Cooperation in criminal matters, be it police or judicial, has been the chosen
method of international and EU law over the last few decades either through for a such as the
Council of Europe or through EU instruments in the area of the third pillar. Despite the steps
undertaken for the strengthening and facilitation of bilateral and multilateral agreements, this
solution has not proved satisfactory, at least not to the extent required for the effective combat
of transnational and organised crime which, unfortunately, seems to flourish in the new liberal
EU. This increase in organised and transnational crime can be viewed as one of the few
unfortunate phenomena feeding from the liberties enjoyed by EU citizens in the single
market. What is required therefore is unified transnational and organised approach to
counteract transnational and organised crime.


The second option refers to the networking of existing national archives for investigations and
prosecutions. The advantages of this option are considerable. First, the information is
currently available and therefore already legally at the disposal of prosecuting and
investigation authorities. Second, there are existing rules on the management, access, use and
erasure of the data from these archives; these must, at least in theory, comply with the data
protection rules of national and EU law already. Third, national officials are already familiar
with the process for maintaining, accessing and utilising the relevant data so there will not be
any immediate need for further training. Fourth, networking national archives will avoid the
complications inherent in the duplication of sensitive data.


However, the networking of national archives also presents substantial disadvantages. First,
the national investigator or prosecutor wishing to know if other relevant proceedings have
been initiated in other member states will have to request information from no less than 25


                                                15
national archives. The time involved in this process will inhibit the speedy decisions
commonly needed by investigations and prosecutors tied by short criminal procedural
deadlines. Second, the structure of national databases are varied and it is doubtful that
national officials maintaining or searching the archives will be able to identify the necessary
data. Third, the format of the data will not necessarily be understandable and therefore
useable for the investigators and prosecutors of other member states. In a way the inherent
problems of mutual assistance will be transferred to this scheme too.


The third option refers to the creation of an EU database for investigations and prosecutions.
This option bypasses the problems identified with the first and second options by creating a
standard exchange format with information stored centrally. The disadvantage of this option is
that it would require an enormous allocation of national and EU resources for the creation of
this database and the duplication of data in national archives as well as for the introduction of
legislation for the establishment of the database, for the determination of access, usage and
erasures. In view of the discrepancies in the national systems of member states, it is also
doubtful that member states could agree on a common position on these issues thus allowing
for the introduction of a constituting instrument. Thus, the establishment of an EU database in
the immediate future would be disproportionate to the objectives and probably unrealistic.


It is therefore recommended that a hybrid solution be introduced by the Commission in two
stages. In the first stage a network of national archives will be created in the model of SIS or
Eurodac: the infrastructure of these two systems can serve as the infrastructure of the new
database provided that the autonomy of the two systems is safeguarded and no sharing of data
could possibly take place. At the same time a common format for entries to the national
archives can be introduced as a means of facilitating the use of data from other national
archives. The common standard format should be compiled in a manner that diminishes the
need for translation: a common format in all languages with boxes to be ticked by the
requesting and responding authorities could secure quick and accurate exchange of data. In
the second stage a European database for investigations and prosecutions will be created. This
will ultimately take lace when the national substantive and procedural criminal laws have
reached such a level of harmonisation that a single database with a single structure of files can
be possible and useable by the national authorities of the member states.


RECOMMENDATION 3

                                               16
The archive for investigations and prosecutions may be introduced in two stages: the
first stage will involve the networking of national archives and the introduction of a
standard European format for data exchange; in the second stage an EU database for
investigations and prosecutions will be introduced.




Entry of data to the archive


In the overwhelming majority of the member states entry of files to the databases for
investigations and prosecutions are entered at the earliest stage of the investigation or
prosecution. However, the interpretation of this general rule by the national authorities varies
considerably amongst the member states. In Belgium, Greece, Ireland, Portugal, Poland, and
Sweden an entry to the investigations database must be logged at the reporting stage. In
Austria, Germany, Luxembourg and the Netherlands files are entered in the investigations
database at the beginning of the investigations process. In Austria, Ireland, Poland and
Sweden entries to the prosecutions databases are made as soon as the prosecutors are notified
of the criminal offence by the investigating organs.


In view of the common position in the overwhelming majority of member states, it is
recommended that entries to the archive are made as soon as the investigating and prosecuting
authorities acquire knowledge of the possibility of a criminal offence.


RECOMMENDATION 4
Entries in the archive for investigations and prosecutions must be made as soon as the
investigating and prosecuting authorities are made aware of the possibility of a criminal
offence.


Erasure from the archive

In Belgium, Italy, the Netherlands and Portugal erasure from national databases for
investigations takes place when the data is no longer useful. In Bulgaria, Cyprus, Germany,
Sweden erasure takes place upon acquittal or upon the end of investigations. In the rest of the
member states erasure takes place within a set deadline starting from acquittal or conviction.
This period ranges from one month from arrest or drop of charges in Germany to twenty years


                                               17
after the end of a sentence in Hungary. In Ireland, Poland, Portugal and Spain data is never
erased.
          With reference to databases for prosecutions, data is never erased in the Czech
Republic, Greece, Ireland, Portugal and Spain. In the rest of the member states the deadline
for the erasure of data on prosecutions varies from twenty years after a sentence is
pronounced in the Netherlands to less than ten years in Austria and the UK.
          There seems to be no obvious common denominator as to the period after which data
on investigations and prosecutions is to be erased. However, an express provision on this
issue must be introduced, if the common principle of rehabilitation of ex-offenders is to be
respected in the instrument introducing the proposed archive.


RECOMMENDATION 5
The data in the archive for investigations and prosecutions must be erased after a period
of time when they can no longer serve a useful purpose at the national and EU levels.




Appeal

Citizens whose data are included in the archive must be awarded the right to appeal against
the archive and its host agency. A first administrative complaint can be heard by the
supervisory body, be it the European Public Prosecutor or the Eurojust JSB. A second judicial
complaint must be heard by traditional judicial bodies. This mechanism of appeal would be in
compliance with the Additional Protocol to the European Convention on Human Rights No.
108, adopted in 2001 which provides that decisions of such a supervisory body must be
appealed through the courts. Moreover, this mechanism of appeal would not be in clash with
Art.20 of the 2002 Eurojust Decision.


Although the European Court of First Instance could be conferred this competence, appeal
before it would require trial of the case in Luxembourg with subsequent excessive expenses
and inconvenience for the citizen. National courts are still more accessible for citizens and
still have a better appreciation of the data included in national criminal records. Therefore, it
is national courts which must have the competence to deal with complaints as to the contents,
use and access to the archive; after all, it is either the individuals or national agencies with
disputed right to access which are most likely to find refuge to judicial action. Should one of


                                               18
the European agencies need judicial authorisation for access or seek correction of the entries
to the archive, jurisdiction to judge the case must be awarded to the European Court of First
Instance. For reasons of expediency, it is preferably the Court of First Instance which must be
awarded competence to offer preliminary rulings in the relevant cases brought before the
national courts. However, since preliminary rulings fall within the traditional competence of
the European Court of Justice competence of the ECJ in this case also would be acceptable.


RECOMMENDATION 5
The supervisory body of the archive must have the competence to hear and resolve
complaints against the host body in an administrative process entailing an exchange of
correspondence between the complainant and the supervisory body.


RECOMMENDATION 6
National courts must have the competence to judge appeals against the archive, which
are initiated by the subject or national agencies on the grounds of content, use and
access to data from the archive.


The content and use of the archive


The content of the archive is a point of debate amongst the member states. Cyprus, Denmark,
Greece, Hungary, Ireland, the Netherlands and Spain seem to prefer delimitation of the crimes
to be included in the archive for investigations and prosecutions to crimes falling within the
area of competence of Eurojust. However, Belgium, the Czech Republic, Luxembourg,
Portugal and the UK believe that the archive will be more effective if it also included crimes
beyond those in the traditional competence of Europol and Eurojust.


The second option presents considerable advantages. First, selection of specific crimes from
the national databases would require the creation of new national archives thus depleting the
no-duplication argument for the two stage approach. Second, organised crime may utilise
other forms of criminal activity rather than those included in the competences of Europol and
Eurojust. Nevertheless, usage of the archive can not depart from the principles of subsidiarity,
proportionality and legality which led to the selection of these crimes for subjection to
Europol and Eurojust.



                                              19
It is recommended that the archive includes all crimes. However, the use of data must be
undertaken in a proportionate and legitimate manner: only serious, transnational and
organised crimes may constitute the basis for action by use of the archive. The archive can not
be used for the initiation of investigation or prosecution for a crime invoking a penalty of less
than one year; however, multiple minor offences may constitute a behaviour serious enough
to justify action. A code for investigators and prosecutors utilising the database could prove
very useful, especially if the database is to take the form of a network of existing databases.


A legitimate usage of the data in the archive is the use of data from it as evidence before the
national courts. Most national criminal procedural laws allow this possibility although the
Anglo-Saxon and Frankish systems of procedural laws could not permit such evidence as
admissible before a court of law.


RECOMMENDATION 7
The archive may include all crimes. However, usage of the data must be undertaken in
respect of the principles of legality, proportionality and necessity. Where allowed by
national procedural laws, data from the archive may be used as evidence before the
courts.


Access to the archive


In the member states access to the national databases for investigations and prosecutions is
limited. However, the agencies that are awarded access, much more so directly, vary amongst
the member states. In the UK the general thrust seems to be in the direction of a general
power of data sharing for the protection of specific interests. In Germany access is limited to
prosecutors. Other systems suggest a ‘need to know’ basis. Some systems make provision for
a ‘licence’ for sharing to be given by the Data Protection Commissioner (Cyprus).                 In
Belgium, only four authorities have access to criminal intelligence and access may be delayed
where this could interfere with a criminal investigation.


Access is regulated by the national data protection laws which comply with EC Directive
95/46/EC. Most member states allow the retention of data despite common constitutional
provisions protecting the right to privacy. The EU Constitution will be relevant when ratified

                                               20
and effective both in terms of the Charter of Human Rights in Part II and in terms of the EU’s
accession to the ECHR. Under the Constitution, the ECJ and national courts have competence
to judge on issues of access and usage of the archive in both its stages of establishment.


RECOMMENDATION 8
Direct access to the archive (the network and ultimately the database) may be awarded
to national and EU judicial, prosecution and police authorities under the European
Convention for Mutual Assistance in Criminal Matters, the Europol and Interpol
Conventions. Europol, Eurojust, the European Public Prosecutor and OLAF should also
have access to this data for the purpose of enabling the effective combating of organised
crime. The request for access to the archive must be reasoned.



Host of the archive


The majority of national laws require that the maintenance, access and use of archive for
investigations and prosecutions are supervised by a judicial or quasi-judicial authority.
Similarly the proposed archive in both its stages of establishment should be hosted and
supervised by a judicial or quasi-judicial agency or authority. This will draw the minimum of
“in principle” criticism from the member states.


Eurojust would be an ideal host of the archive and its supervisory body an excellent agency
for the supervision of activities. Ultimately, the European Public Prosecutor’s Office could
host the EU database for investigations and prosecutions.


RECOMMENDATION 9
The database should in the long term be hosted be hosted by Eurojust.


RECOMMENDATION 10
Eurojust may host the archive, both at the network and at the EU database stage. The
JSC of Eurojust may supervise all activities.




                                               21
Political Opposition


While the majority of the Member States are not expected to raise serious objections the
position of some key Member States, such as Germany and the UK might play an important
role. Both Germany and the UK will need some convincing as national experts expect serious
opposition. It is, therefore, recommended that the Commission studies possible objections
from these two Member States in detail so that it is prepared for their argumentation.
Dismissing UK arguments on the basis of the UK’s “habitual” Euroscepticism will not really
help the establishment of such a database.


RECOMMENDATION 11
That the Commission looks closely at the objections raised by Germany and the UK.


The key in convincing more Member States might be to make the obvious link with crime.
White collar crime is wrongly not receiving attention because it is often not perceived by the
people as “serious” crime because it is not directly linked to violent crime. While in recent
years the development of so called “mafia’s” in eastern Europe has raised the profile of white
collar crime, nevertheless, in western Europe this is not the case.


Above all the Commission and the member states should make it clear to the citizens that this
database is designed to be a “crime buster” rather than yet another opportunity to keep files on
the citizens. This is very important because of the historic mistrust that European citizens
have in “secret” files kept on citizens.




Conclusions


It is recommended that the lacuna in the access of national investigating and prosecuting
authorities to foreign databases can not be adequately addressed by the strengthening of
mutual legal assistance. The Commission may establish an EU archive for investigations and
prosecutions thus awarding quick, accurate and unhindered access to data on investigations
and prosecutions in all member states, thus allowing an effective means of combating crime in
the common area of freedom, security and justice.



                                               22
It is recommended that the archive be introduced in two phases. In phase one a European
network of national databases for investigations and prosecutions can allow the linkage of
national databases in a system comparable to SIS. Eurojust may be the EU agency responsible
for this linkage. A European standard format for investigations and prosecutions may also be
introduced at this stage thus providing the blueprint toward further harmonisation of the
structure of entries. In the second stage it is recommended that the Commission proposes an
EU database for investigations and prosecutions which will be the ultimate effective tool for
the prevention and combat of serious, organised and transnational crime in the EU.


RECOMMENDATION 12
That the Commission begins without delay informal consultations with the member
states to assess what is acceptable.




                                             23
                   AGIS PROJECT JAI/2003/AGIS/002
Feasibility study on the creation of a database on investigations and prosecutions




           EU Reviser’s Horizontal Report




                              Dr Helen Xanthaki
               Sir William Dale Centre for Legislative Studies
                     Institute of Advanced Legal Studies
                             University of London




                                        24
The aim of this horizontal report is to analyse comparatively the current legal position on
databases for investigations and prosecutions in the countries under examination. The report
will address the relevant questions from the questionnaire and it will draw conclusions on the
basis of the answers of the national experts.


The task of the author is to discover the level of standardisation currently present within the
EU on this issue and to assess whether harmonisation at the EU level seems possible and
feasible. The author faced considerable hurdles in this analysis. The criminal law procedures
in the countries under examination very considerably. Thus, the duties and tasks of the
investigation authorities as opposed to the duties and tasks of the prosecuting authorities
differ greatly amongst the existing and future member states. As a result of this diversity the
delimitation of investigation and prosecution, in time and stage of procedure, in the countries
under examination is not always the same. In a number of countries the two functions and the
performing authorities overlap, whereas in others the distinction between the two exists to the
extent that the data available in each set of authorities is not made available to the other set of
authorities. A number of national experts expressed their bewilderment at the distinction
between databases for investigations and databases for prosecutions. Some recommended that
the two sets of data be included in the same archive. Indeed a number of member states follow
this practice.


Nevertheless, the need to continue this analysis by reference to the distinction between
investigations and prosecutions stems from the distinction between the police and prosecution
authorities in international and EU texts for the exchange of data. Moreover, data protection
legislation tends to differentiate between data kept by and transferred to judicial and quasi-
judicial authorities from data maintained and sent to police authorities.


1)   Does your country have a database for investigations? Is it central or regional? Do these
     databases include exclusively criminal investigations or do they also include
     administrative/ other investigations? What is their legal basis (statutory or other)?
     Please analyse and attach the introducing legal texts as amended (in English or the
     original language of publication).


In Austria there is a complex selection of databases for investigations and convictions, called
EKIS (Elektronisches kriminal-polizeiliches Informationssystem), held by the Ministry of
Interior Affairs. Its legal basis lies with the Sicherheitspolizeigesetz (Act on Security Police),
the Strafregistergesetz (Act on Criminal Records), the Passgesetz (Passport Act),
Waffengesetz (Weapons Act) and the Kraftfahrzeuggesetz (Motor Vehicle Act). The main
database for police investigations is the Kriminalpolizeiliche Aktenindex but it is only used if
a warrant or a request by a foreign authority has already been issued. Investigations related to
organised crime are registered in the Factotum database of the police by the Federal Criminal
Police Office (Bundeskriminalamt) accessible only to few special investigators for the
purpose of analysis of the structure of organised crime and the place of persons within this
structure.


In Belgium there is a central database for investigations. The Banque de données nationale
générale unique (BNG) is held by the Police but is also accessible to judicial authorities. The
database includes personal data and information related to events, groups or individuals.


In Bulgaria there is a database for investigations and police at a regional and central level
including information on investigations. Such data can be found in the information systems of
the National Investigation Service which collects and maintains relevant data held and
transferred to it by regional police authorities. The information exists in electronic format and
it is regularly updated to include all developments in the stages of the investigations.


In Cyprus databases for investigations are kept at Police Headquarters in Nicosia. The
information entered in the databases is strictly confidential and it is related only to police
investigations. Each operational department of the police maintains its own database.


In the Czech Republic the Police maintains databases for the opening of investigations,
process and termination of investigation and criminal statistics. Theses databases are
maintained by the Department of System Management and Informatics of the Police
Presidium of the Czech Republic.


In Denmark investigations are filed in the Crime Register which is a central database for
information of significance to police investigations maintained centrally by the National
Police Commissioner. The Crime Register includes various details for the identification of
registered persons, persons considered to be criminally active irrespective of whether a
current investigation is open against them, and notes on such persons (such as ‘violent’,


                                                26
‘armed with gun’, ‘drug dealer’, ‘in treatment for alcoholism’ or ‘terrorist’). Since 2000 the
Crime Register is supplemented by a DNA register kept both electronically and manually, and
aiming to register information of relevance to police investigations.


The availability of information relevant to police investigations in England and Wales is
unboubtful but data become available through a complex and fragmented network of
databases: some national others regional; most related to specific types of crime, others
related to groups of crimes such as serious crime. The database for major enquiries, HOLMES
(Home Office Large Major Enquiry System), identifies and plots lines of enquiry, keeps track
of vital pieces of evidence and reduces paperwork at a national level. SCAS (Serious Crime
Analysis System) allows comparisons with past related incidents but its area of jurisdiction is
limited to murder, rape or abduction. The Phoenix Intelligence system is maintained in the
Police National Computer at the national level and records data from all forces nationwide.
The C.A.T.C.H.E.M database at the National Criminal and Operations faculty is primarily a
research facility.


In France there is a centralised police registry for investigations although there are local
registries of the police and the gendarmerie. Since 2001 the French police has a database
aimed to provide aid to the investigating authorities in the completion of their duties. The
STIC, Système de Traitement des Infractions Constatées, is maintained at a national basis fed
by the regional police authorities. It includes identification details of the suspect, fingerprints,
any details of the mondus operandi of the suspect, details on victims, and factual information
on the process of investigation. The gendarmerie has its own centralised national database,
the JUDEX. In 2003 France introduced a database common to the police and the gendarmerie
which includes crimes, misdemeanours and offences of the 5th class. The database is placed
with the Public Prosecutor and includes information on judicial investigations including the
data of the other two databases.


In Germany the database for investigations is kept nationally by the Federal Criminal Law
Enforcement     Authority    (Bundeskriminalamt,      BKA)     and   it   is   regulated   by   law
(Bundeskriminalamt-Gesetz BKAG). The BKA collects the personal data and case details for
convictions and suspicions. Although the law limits its preventative capacity, in practice
prevention is one of its main duties justified by the abstract notion of increasing threat of
transnational crime.


                                                27
In Greece there is no central database for investigations although relevant data are available in
a fragmented manner at the offices of the regional investigating authorities, mainly local
police offices. However, a database for investigations has been introduced in 2001 by a
Presidential Decree -but is not operational as yet- and placed with the Special or Common
Archives of the Department of Statistic Data & Prosecutions and the Department of Archives
of the Forensic Division of the Hellenic Police Forensic Division.


Hungary benefits from a central criminal database on persons under criminal investigation as
part of the National Criminal Record database kept by the Ministry of the Interior. The
database includes details for the identification of the suspect, data on the suspected criminal
offence, details on the criminal behaviour of the suspect, and facts on the investigations
process. The Organised Crime Coordination Centre maintains data on organised crime,
monitors parallel intelligence activities, recommends the opening of investigations and
monitors the structure of organised crime groups. The Centre holds identification data of the
suspects, the suspects’ criminal connections and anything relevant to the suspected crime.


In Ireland there is no dedicated database for investigations. Nevertheless, PULSE (Police
Using Leading Systems Effectively), the police national database that includes information
for the completion of its administrative, investigative, prosecution and intelligence functions.


In Italy there is a centralised national database for investigations introduced by the Code of
Criminal Proceedings. The database includes all information amassed during the investigation
of a crime attributed to a specific person. There is an additional database for crimes that are
not yet attributed to anyone in specific. Additional databases exist in the tribunals, and in
courts for juveniles.


Until 2000 Luxembourg kept two databases for investigations for the Police and the
Gendarmerie respectively. Nowadays, however, there is a single centralized database for
pending investigations, FAC (Fichier des Affaires en Cours), that is kept by the national
Crime Investigation Department (SPJ) of the Police.


In the Netherlands data on criminal investigations can be found in a number of regional and
national databases which form a fragmented system of data availability. Apart from case-


                                               28
specific temporary registries, the police maintains a serious crimes database (ZwaCri) that
includes crimes having a grave disturbing effect on society. Relevant national databases are
the VROS (Verwijsindex Recherche Onderzoeken en Subjecten, Referral database Criminal
Investigations and Subjects), including information on current investigations supplied by the
police districts, and comprising two indexes. The CIE index includes data on people listed in
the serious crime database and people and organizations listed in the temporary registers in
the police districts. The MRO (Melding recherche onderzoeken, Notification of criminal
investigations) includes information on investigations with the various districts. Viclas, the
Violent Crime Linkage Analysis System, is a national database for tracking violent offenders.
There is no express basis in law for the introduction of these databases.


In 2003 Poland introduced the KCIK (National Center of Criminal Information, Krajowe
Centrum Informacji Kryminalnej) which includes all criminal information. The database
includes the date and place of an offence; the type of the offence; the details of the
investigating officer; details of the suspect; the suspected action of the suspect. The database
is kept by the Police. A second database for investigations is the KSIP (National System of
Police Information, Krajowy System Informacji Policyjnej) which includes all personal data of
suspects.


In Poland there is no database of investigations for the purposes of combating crime. The
Public Prosecution has in its disposal two databases for criminal investigations and
prosecutions: SGI and HABILUS. The SGI (Sistema de Gestão de Inquéritos, Inquiries
Management System) is held by the Instituto das Tecnologias de Informação na Justiça
(Institute of Information Technologies in the Justice Area) of the Ministry of Justice and
includes all criminal inquiries. The database serves mainly for the management of criminal
procedures. Similarly, HABILUS is a central database held by DGAJ (the Direcção-Geral da
Administração da Justiça) used to record all procedures before the courts, criminal, civil and
administrative procedures.


In Spain there is no central database for investigations although scattered data can be found in
databases held regionally and nationally by the security forces for non-police purposes.


In Sweden data on investigations can be found in the regional RAR databases (Rational
Reporting Routine, Rationell Anmälan Rutin) that includes the crime diary of the police; and


                                               29
the DurTvå database (Datoriserad utredningsrutin med Tvångsmedelsdokumenta-tion), a
regional system which records the beginning of investigations. The national register of
investigations, Misstankeregistret (MR), includes all regional investigations in the DurTVÅ
system concerning a specific person.


The brief presentation of databases for investigations in the countries under examination
demonstrates the existence of profound complexities and diversities in the legal systems of
EU member states. Although most member states have databases for investigations aiming to
provide investigating authorities with information and cross-check capabilities, a small
number of member states, and indeed older member states, lack such databases altogether.
Thus, databases for investigations exist in Austria, Belgium, Cyprus, the Czech Republic,
Denmark, France, Germany, Greece, Hungary, Italy, Luxembourg, the Netherlands, Poland,
Sweden and the UK. In Ireland, Portugal and Spain there is no database for these purposes
although records are kept for the management of criminal investigations.


It is worth noting that in some member states, such as Luxembourg, France, Greece and
Hungary, these databases are new and result from recent legislation. This demonstrates a
trend towards the establishment of centralised national electronic databases for investigations
as a means of combating transnational crime, a finding which strengthens the hypothesis of
the project team that a study in this area is needed.


Even member states with existing databases for investigations are split on their approach of
territoriality for them. A large group of member states maintains a single national database for
investigations. This is the case in Belgium, Denmark, France, Germany, Hungary, Italy and
Luxembourg. However, an equally large group of member states suffers from fragmented
databases for investigations. In some cases (namely in Austria, Cyprus, the Czech Republic,
Greece and Sweden) there are regional databases which are not linked with each other and
operate independently. In other cases (namely in the Netherlands, Poland and the UK)
multiple databases intersect and complex the availability of data on investigations.


Most jurisdictions place their databases with the Police. This is the case in Belgium, Cyprus,
the Czech Republic, Denmark, Luxembourg, Greece, Poland and the UK. In France the
investigations database is placed with the Public Prosecutor, perhaps as a result of the French
system of investigating judges. In Germany the registry for investigations is placed with the


                                                30
Federal Criminal Law Enforcement Authority.


In most member states databases for investigations are introduced by law and are recognised
as archive of data established as tools for investigators and aids for the completion of their
duties. However, in Cyprus and Poland databases for investigations are established by orders
of the police authorities, whereas in Ireland and the Netherlands national experts report a
complete lack of basis in express legal provisions. It is thought that in the last two member
states these databases are established informally as a practical means of assisting the police
with their investigations. In the latter case they are viewed as internal records which are not
openly available to other agencies.


Databases of investigations include similar types of entries in most member states:
      Criminal investigations only (such as at least in Austria, Cyprus, the Czech Republic,
       Denmark, France, Germany, Italy, Luxembourg, the Netherlands, Poland, and the
       UK);
      Personal data of the person under investigation (such as in Belgium, Cyprus, the
       Czech Republic, Denmark, France, Germany, Italy, Luxembourg, the Netherlands,
       Poland and the UK);
      Information on the crime under investigation (such as in Belgium, Cyprus, the Czech
       Republic, Denmark, France, Germany, Italy, Luxembourg, the Netherlands, Poland
       and the UK).


In Luxembourg the database for investigations also includes the legal basis on which the
investigation has begun. In a number of member states (such as in France, Italy, Luxembourg,
the Netherlands and Poland) the database also includes information on the victim of the crime
under investigation. In the Danish model markings on the level and characteristics of
criminality of the specific person is also included in the database.


In the vast majority of states under examination the database or databases for investigations is
automated. This is the case in Austria, Belgium, Bulgaria, Cyprus, the Czech Republic,
Denmark, France, Germany, Italy, the Netherlands, Poland, Sweden and the UK. However, in
Portugal and Spain such databases are not available in an electronic format.


Even this prima facie examination of national approaches to databases for investigations

                                                31
demonstrates obvious discrepancies between member states. The existence of such databases
cannot be taken for granted even in older member states, although the trend seems to be
leaning towards the establishment of such archives where they do not already exist. It is easy
therefore to conclude that member states already recognise the utility of such databases as
effective weapons for the investigating authorities. However, even national reports
demonstrate that this efficient tool for the completion of the duties of national investigators is
gravely decreased where such databases are available at the regional level: fragmentation
leads to gaps and intersections and slows or even diminishes the availability of such data.
Much more so in the case of the EU where transnational crime can only be addressed via
readily available information on investigations amongst national authorities where the
channels of communication are less open in comparison with authorities within the same
jurisdiction.


2)   Is there a database for prosecutions in your country? Is it central or regional? Do these
     databases include exclusively criminal prosecutions? What is their legal basis (statutory
     or other)? Please analyse and attach the introducing legal texts as amended (in English
     or the original language of publication).


In Austria there is a database for prosecutions kept by the Public Prosecutor’s offices and
including every notification of a criminal act. The legal basis for this database lies with the
Order implementing the Act on Public Prosecutor’s Offices (Durchführungsverordnung
Staatsanwaltschaftsgesetz).


In Belgium there is no central database for prosecutions, although individual prosecutors’
offices hold their own local databases. Lack of a centralised database linking the existing
local ones results in lack of information on pre-trial investigations amongst districts which
may lead to overlaps and inefficiencies. The recently launched Phenix programme for the
inclusion of all databases in a federal system may resolve these problems.


In Bulgaria there is a database for prosecutions held by the Public Prosecutor’s Office
organized by number and type of criminal cases formed by prosecutors. As the databases is
not available in electronic format it is used mainly for statistical purposes which are included
in the annual report of the Office.



                                                 32
There is no database for prosecutions in Cyprus.


In the Czech Republic the Public Prosecution maintains a database which includes personal
information of investigated persons, victims of crime, crimes that have been committed and
information immediately related to them. This data is kept in the central database of
investigated persons (CESO) which forms part of the general information system of public
prosecution (ISYZ) fully operational sine January 2004.


In Denmark the decision to prosecute persons included in the Crime Register is entered in the
Crime Register. Similarly, the decision to press charges or the decision to drop charges is
registered in the Investigation part of the Crime Register. The Crime Register also include a
part on convictions, the Register of Judgments, which is the national criminal records archive.


In England and Wales there is no database for prosecutions. However, the government is
seeking to address this gap and is currently researching the possibility of introducing a file-
tracking system. Prosecutors have access to the databases for investigations.


In France each court of first instance maintains its own database on prosecutions subject to
the Public Prosecutor of the Republic. The database includes French and foreign nationals
criminally prosecuted in French territory and their criminal past : prosecutions abroad, even
those conducted by French prosecutors, are not included in the registries.


In Germany there is a central database for prosecutions, the Zentrales Staatsanwaltliches
Verfahrensregister (ZStV) also known as SISY – Staatsanwaltliches Informationssystem. It is
noteworthy that in Germany the database for prosecutions and that for convictions are
independent, yet once an entry to the criminal records is made the relevant entry in the
database for prosecutions is deleted. The database for prosecutions is kept in a centralised
automated system by the central criminal records authority at the National General
Prosecutor’s Office, which in turn is part of the Ministry of Justice. The database includes
information on cases from the time of the registration of the criminal act with the police until
its closure.


In Greece there is no database for prosecutions although data on complaints filed against a
person and the stages of the investigation and prosecution are kept regionally by the


                                              33
prosecutors where the complaint was initially lodged. Such data is then transferred to the
police authorities of the region for execution and enforcement. Nevertheless, recent
provisions introduce an archive for prosecutions kept by the Special or Common Archives of
the Department of Statistical Data and Prosecutions and the Department of Archives of the
Forensic Division of the Hellenic Police Unit and including data on prosecutions through
Greek territory. This database may become operational in the years to come.


In Hungary there is no database for prosecutions.


In Ireland a centralised database for prosecutions is maintained by the Office of the Director
of Public Prosecutions. This computerised system contains records of all cases before the
Chief Prosecution Solicitor and the State Solicitor’s offices around the country. The
government has introduced a pilot database on the progress of criminal cases currently
operational in the District Courts in Dublin and Limerick.


In Italy there is no single centralised database for prosecutions. The end of investigations is
recorded in regional databases, as is the referral to courts.


In Luxembourg there is no single database for prosecutions. Relevant data can be found in the
chaîne pénale, which is an internal tool for prosecutors aiming to allow them to access the
development of investigation processes. The aim of this database is to offer efficiency in the
management of criminal cases only.


There is no single database for prosecutions in the Netherlands, although a number of
registries forms a fragmented yet compete system of data on prosecutions. COMPAS
(Communicatiesysteem Openbaar Ministerie - Parket Administratie Systeem) contains all
cases, whereas VIPS (Reference Index Criminal Law) includes all persons suspected to be
part of the crimi9nal structure in the Netherlands. These systems primarily contain
information on criminal prosecutions. There is no basis in law for these registries.


In Poland there is no database for prosecutions although on 27 June 2003 the Minister of
Justice issued an Order for the establishment of such a database.


In Portugal there is no database for prosecutions although databases for the administrative


                                                34
management of court procedures is available to prosecutors.


In Spain there is no database for prosecutions although details for the management of
prosecutions exist at the level of autonomous regions.


In Sweden data on prosecutions can be found in the BRÅDIS database which comprises four
registers, namely the crime registry; the registry of preventive and enforcement methods such
as secret wire-tapping; the security registry; and the general diary for all other items. This is a
regional database although prosecutions are reported to the MR national register for
investigations and prosecutions.


In the case of databases for prosecutions the countries under examination are split in almost
equally sized groups. Databases for prosecutions exist already in Denmark, France, Germany,
Hungary, Ireland, the Netherlands and Sweden. In contrast to these countries a large group of
countries fails to recognise any need in establishing such a database. This is the case in
Belgium, Bulgaria, Cyprus, the Czech Republic, Greece, Italy, Luxembourg, Portugal, Spain
and the UK. It is noteworthy that in contrast to the approach to databases for investigations
there seems to be no trend for the establishment of databases for prosecutions in the countries
under examination.


Even in states where databases for prosecutions exist, the approach is split between countries
of a single centralised system and countries with fragmented regional national records. In
Austria, Bulgaria, the Czech Republic, Denmark, Germany, Hungary and Ireland there is a
national centralised database for information on prosecutions within their jurisdiction. In
Belgium, France, Italy, Luxembourg, the Netherlands and Sweden data on prosecutions is
held in regional databases.


In most countries where such databases are available, they are held by the Public Prosecutor’s
Office. This is the case in Austria, Belgium, Bulgaria, the Czech Republic, France, Germany,
Ireland and the Netherlands. However, in Denmark, Germany and Italy the database is hosted
by the central authority maintaining the criminal records of convicted persons.


In most countries under examination, which already possess such databases, the archives
include simply notification of prosecutions for all criminal acts committed within the territory


                                                35
of the country and any information relevant to the prosecution. All databases are automated.


There are conclusions to be drawn for the comparative analysis of the national approaches to
databases for prosecutions. It seems that it would be difficult to establish the necessity for
such databases at the EU level, as member states tend to adopt diverse positions on this.
Indeed, the large number of members to the group of countries without databases for
prosecutions demonstrates that judicial systems, at least at the national level, can survive and
function, without them.


Nevertheless, there are qualifications for this approach. First, prosecutors have access to the
databases for investigations. Secondly, databases for investigations include data on the
progress of the criminal investigation until the case reaches the courts, at least. In other words
a combination of the two stages of criminal procedure is possible and data can be available on
both stages in a single database. This could lead the way as a model for EU-wide practice and
a centralised database, although the definition of criminal proceedings in some member states,
especially in Malta and the UK, might constitute a hurdle to the acceptance of the practice of
a unified database for investigations and prosecutions at the EU level.


Where databases for prosecutions are held, they are placed by the Public Prosecutor’s Office.
After all, these archives are seen as tools for the efficient completion of the prosecution’s
duties and it is only rational that they are placed within the service for easy and unhindered
access.


3)   Which national, EU or international authorities have access to the databases? If such
     databases do not exist, who has access to information on investigations and
     prosecutions?


Austrian law was recently amended to allow for the deletion of a concrete list of authorities
having access to the database for investigations held by Austrian police. The new provisions
now require that all security authorities have access. Security authorities are meant to include
district authorities and embassies. Other authorities may also gain access to data in the
database provided that they can demonstrate that the acquisition of this information will
contribute to the administration of security or to the efficiency of criminal justice, and
provided that explicit statutory authorisation allow the transfer of data. Data is transmitted on


                                               36
the basis of the principle of necessity. Apart from the security authorities access to the
database is open to the data protection commission and, of course, to the individuals for their
own entry.


The database for prosecutions is open to the staff of the prosecutor’s offices and to the courts,
although the courts only have access to the names of prosecuted and not to the full details of
each file. Limited access to the database is also awarded to selected officers in the penal
administration and at the Federal Ministry of Justice.


In Belgium there is no database for prosecutions. The database for investigations is open to
Belgian judicial authorities; police authorities; intelligent services; and police monitoring
Services. There is no direct access for international authorities although the data is available
to them via numerous bilateral agreements and Interpol. There is limited exchange of data at
the EU level via the Schengen Convention and Europol, which limits exchanges between
police authorities to organized crime affecting at least two EU member states.


In Bulgaria the unified database for investigations and prosecutions is open to all officials
playing a role in the criminal process, namely judges, prosecutors, investigators; selected staff
at the institutions creating the system, namely at the Ministry of Finance, Ministry of Justice,
Ministry of Interior, Ministry of Defence; and other authorities indirectly subject to express
and explicit approval of the subject for their own entry. There is no separate database for
prosecutions in Bulgaria, as archives for prosecutions are only utilized for management and
statistical purposes.


There is no database for prosecutions in Cyprus. Access to the database for investigations is
awarded to authorized police officers, namely those who have been granted the right to access
these databases by the Chief of Police. The Office of the Commissioner for Personal Data
Protection is also aware of the entries to the database, albeit only on the basis of names of
citizens with entries in the database, not details of each entry. Access to the database is also
awarded to the EU via Europol and to international agencies via Interpol.


In the Czech Republic the three databases including data on criminal investigation are open to
police authorities only . The information system of the prosecution service is open to the
prosecution authorities, to the police and the courts.


                                                37
In Denmark information on investigations is found in a special register in the criminal records
archives. Access to the full criminal record, including investigations, is granted to the police;
prosecution; Ministry of Justice; the Directorate for Rehabilitation; the Auditor Corps of the
Army; the Directorate for the Courts; immigration; institutions under the Directorate for
Rehabilitation (prisons etc.) for persons who are applying for positions, (consent of the person
required); the Courts, for persons who apply for positions in the Courts, (consent of the
person required); the Second Instance Courts and the Court for persons suggested to serve as
jurors, or civil judges or will serve as specialists in the Courts; and the Ombudsman. It is
worth noting that the extended circle of persons having access to the database for
investigations is contained by qualification of a legitimate interest for such information.
Danish legislation allows access to the investigations database to foreign police, prosecutors
and courts in the Nordic Courts or to states members of the Council of Europe, for use in
public penal trials abroad; and to other foreign authorities where necessary. Exchange of data
with EU authorities takes place via Eurojust and Europol.


In France STIC, the database for investigations, is accessible by police officers and certain
qualifying administrative staff such as prosecutors. Transmission to other French authorities is
possible but it must be undertaken for the purposes of assisting in judicial enquiries. This last
method of indirect access is mainly addressed to regional magistrates. Access to the STIC is
also possible for certain specifically designated officers of the national police, provided that
the data is needed in the framework of administrative police missions or of security. JUDEX,
the main database for prosecutions, is accessible by certain authorised police agents, agents of
the gedarmerie, and certain qualifying judicial authorities. A recent French law stipulates for
the first time express obligation of the French authorities to allow access to data from these
databases to foreign police authorities provided that the conditions of access and use are
similar to the equivalent French ones.


In Germany access to the databases for investigations and prosecutions is allowed exclusively
to criminal law enforcement authorities and the three Federal intelligence authorities
(Bundesnachrichtendienst,     Militärischer    Abschirmdienst,     Verfassungsschutz).     Legal
interpretation of the relevant provisions on access to these databases now allows limited
views to the details of a specific case or person by the criminal courts. The transnational
transfer and exchange of investigation data is possible and EU enforcement authorities are


                                               38
awarded equal rights to their German counterparts.


Greek law awards access to existing databases and records to everyone with a legitimate
interest to acquire the relevant information. This includes of course national prosecution,
judicial and law enforcement authorities. The individual subject also has access to any entry
in their name. Foreign and EU authorities are awarded access on the basis of international and
EU instruments for mutual legal assistance in criminal matters. Europol, Schengen and
Interpol are already used in practice and the 2000 MLA Convention is expected to be ratified
soon.


In Hungary access to the investigations and prosecutions archive of the central criminal
database is open to judicial, prosecuting and investigating authorities; the Ministry of Justice;
national security services; the military; the equivalent foreign authorities; the International
Law Enforcement Co-operation Centre (ILECC) and its Hungarian counterpart; foreign
security services; police officers on the weapons or road traffic divisions; bodies involved in
the execution of sentences; the passport authorities; and anyone authorised by law to acquire
access to such data for the performance of their duties. Additional authorities have the right to
indirect access provided that their request is legally justified.


In Ireland the existing databases are considered internal working tools for the police and
prosecuting authorities respectively. As a result they are not accessible to other authorities.
Interpol, Europol and other national police forces have indirect access to the police database
through the ‘Sirene Bureau’ Liaison Section of the Garda HQ. The Criminal Assets Bureau
(CAB) is not accessible by other agencies. No direct access is provided to international or
European authorities to the databases maintained by the Forensic Science Laboratory but
queries from these sources are usually facilitated.


In Italy access to the databases for investigations and prosecutions is awarded to the office of
the prosecutor in charge of the file in question; to the offices of prosecutors dealing with
investigations linked to the specific file in the registry; the National Anti-mafia Prosecutor
(NAP). Indirect access to this data is also offered to the Direzione Investigativa Antimafia
(DIA), the anti-mafia police divisions, to the Italian member of Eurojust; and to the Ministry
of Home affairs after express authorization.



                                                 39
In Luxembourg the new database for investigations (FAC) is accessible by the National
Criminal Investigation Department (SPJ); all investigators; and all heads of investigation
units. No direct access is granted to EU or international authorities, although transfer of data
is possible through Interpol and Europol. There is no database for prosecutions in
Luxembourg, at least not maintained for the purpose of combating crime .


In the Netherlands access to the various multiple regional and national databases for
investigations and prosecutions is awarded to the investigating and prosecuting authorities
only. In view of the lack of distinction between databases for investigations and databases
exclusively for prosecutions, foreign requests for data from the Netherlands are handled by
the same authorities both for investigations and for prosecutions. Eight regional international
coordination centres and one national international coordination centre provides access to
foreign authorities on an ad hoc basis in compliance with international agreements. Requests
from Schengen countries are routed to the Ministry of Justice, as foreign authorities -even
EU- lack direct access to these databases.


In Poland the database for investigations and prosecutions is accessible by the public
prosecutor, police, border police, customs, tax offices, fiscal control organs, fiscal intelligence
officers, the Government Protection Unit, the Military Police, financial information organs,
the General Inspector of Financial Information, and organs of public administration in charge
of foreigners and repatriation. Indirect access may be awarded to other authorities by the
Chief of the KCIK for the purpose of facilitating proceedings conducted by these authorities.
Interpol has access to databases maintained by Polish police. The Chief may also provide data
to foreign authorities subject to necessity or international treaties ratified by Poland provided
that the requesting state ensures the protection of the information, and the level of that
protection is not lower than that existing on the territory of Poland.


In Portugal access to the SGI database is awarded to the magistrates and administrative staff
of the prosecuting authorities only. Judges, police, or even non prosecuting magistrates are
denied direct access to the investigating database. Even authorised persons are awarded a four
level type of authorisation. The HABILUS database is of generic use by the courts and access
is limited by the functions of the official and the type and stage of the procedure: magistrates
have access only to the files that they are working on at any given time. Other national, EU
and international authorities (including the European Judicial Network and Eurojust) suffer


                                                40
from the precedence of confidentiality during the investigation process and can only be
awarded access to limited data on an ad hoc basis of legitimate interest.


In Spain there is no database for investigations or prosecutions which exists for a purpose
other than the efficient management of internal files in the authorities which maintain them.
Public prosecutors and their clerk use the database for the management of prosecutions files.
Similarly, any archives on investigations are not open to outsiders.


In Sweden direct access to the regional databases for investigations (DurTvå) is preserved for
the police. Similarly only prosecuting authorities and the Economic Crimes Bureau have
access to the database for prosecutions, BRÅDIS. Indirect access may be obtained by the
police, tax authorities, customs authorities, prosecuting authorities and the courts.
International authorities is given indirect access to data from these databases under bilateral
agreements or participation to international agreements.


In the UK the national expert reports a move towards wider exchange of information on
investigations and prosecutions attributed, at least partly, to the September 11 attacks and
their repercussions to the UK and Europe. New powers are given to the Commissioner to
access and use data from the Europol, Customs and Schengen Information Systems and to
allow access to national data to foreign authorities. However, the fragmented system of
multiple databases of specific information prevents generalisations as to the specific
authorities awarded access to each of these databases within and outside the UK.


Comparative analysis of the current provisions for access to databases for investigations and
prosecutions is rather complex. First, there is a large group of countries where databases for
prosecutions do not exist independently from databases for investigations: inevitably in these
countries access to the relevant data is extended to both investigating and prosecuting
authorities. Second, there is a large group of countries where investigations and prosecutions
are not divided by a visible line or event: as a result the databases for investigations and
prosecutions intersect and access is of course affected to cover both investigating and
prosecuting authorities. Third, a small group of countries views these databases as internal
tools for the effective completion of the work of the investigating and prosecuting services:
inevitably there access is limited to those inside the relevant organisations. Variations in these
three aspects result to the lack of a comparative basis for analysis of the issue of access to


                                               41
databases for investigations and prosecutions.


Nevertheless, conclusions can be drawn. National laws allow direct access to databases for
investigations to investigating authorities. In fact only one country, Spain, fails to offer its
investigating authorities the benefit from even an internal database as a tool for the
completion of their duties. In a large number of countries investigating authorities have
exclusive access to the database for investigations, at least directly. This is the case in Austria,
Cyprus, the Czech Republic, Ireland, Luxembourg, Portugal and Sweden. All other member
states under examination tend to allow direct access to the investigations database to the
prosecution, the judiciary or to officials whose role in the criminal procedure establishes their
need to access the relevant data.


A group of countries are so restrictive on their authorisation to access the database that they
limit not only direct but also indirect access to the national databases. This is the case in the
Czech Republic in Ireland and in Luxemburg. It would be difficult to attribute this strict
restriction to an attempt by the national legal orders of these countries to protect those
suspected yet not convicted for a crime. These countries tend to utilise their national
databases as internal tools and therefore access would have little value for outsiders, at least in
practice, whereas it could be dangerous for those working on specific cases.


A larger group of countries follow a model of compromise. Direct access is rather limited, yet
indirect access under qualifying conditions is open to a larger circle of authorities. This is the
case in Austria, Cyprus, the Netherlands, Portugal and Sweden.


Finally, as a result of the variation of the role of investigation and prosecution amongst
member states a large group of countries under examination allow both direct and indirect
access to other national authorities. This is the case in Belgium, Bulgaria, Denmark, France,
Greece, Hungary, Italy, Poland and the UK. It is worth noting that access to data in Greece is
dependent upon the establishment of a legitimate interest, thus extending access to everyone
irrespective of their function and role yet delimiting access to those who really need to know.
The Greek model could be a good compromise if the experiences of national legal orders were
to be transferred to the EU level: awarding access to persons of any function would avoid
compromises in the role and title of those authorised to acquire the relevant data. At the same
time qualification of access by reference to legitimate interest would allow national legal


                                                 42
orders to adjust their traditions and receive an EU database for investigations smoothly.


International authorities are not awarded direct access to databases for investigations,
although specific data can be transferred to them on the basis of international agreements.
Interpol is the main instrument for the exchange of data in this area.


EU authorities tend to be privileged in the exchange of data from databases for investigations
as Europol and Eurojust facilitate this exchange considerably. However, even these two
institutions offer exchange indirectly, namely subject to requests for assistance by the national
contact points. Schengen is a rather better option for participating countries and some
information is available to investigating authorities directly (through the SIS and SIREN).
However, only Germany allows equal rights to EU authorities with German authorities. The
German model can be considered as one of best practice for EU member states, as it facilitates
quick and accurate acquisition of information in a delicate stage of the criminal procedure
where time and detail is of an essence.


Databases for prosecutions, where available, tend to be much more open to non-prosecuting
authorities. Most judicial authorities also have access to databases for prosecutions, apart
from Ireland where the existing database is again an internal tool for public prosecutors.
Similarly, other agencies of the state have indirect access to national databases for
prosecutions in all countries except from Ireland and the Netherlands.


However, databases for prosecutions tend to be restricted for EU and international agencies.
Most exchanges of data is undertaken via Eurojust, at least until the 2000 MLA Convention is
ratified by all member states.


4)   At which procedural stage are data introduced to the database (for example, at
     police/law enforcement investigation, launch of formal prosecution, or trial)?


In Austria data to the investigations database (EKIS) is entered in the beginning of formal
investigations as soon as a specific suspect id identified. Data can be entered by all
investigators in the IPOS (Integrated Police Security System) and then automatically
transmitted to all data stations. Entries to the register of the public prosecutor’s office are
introduced to the system as soon as the prosecution begins. This occurs when the criminal act


                                               43
becomes known to a public prosecutor, when a notification is transmitted by the security
authorities to a public prosecutor, or when authorisation for a special investigation measure is
requested by the security authorities.


In Belgium entries to the investigations database are made as soon as there is information of a
committed infringement or a suspected infringement.


In Bulgaria data is entered in the databases at the time of formation of the pre-trial
proceedings by the investigation or police units.


In Cyprus information is entered into the database at the early stage of the investigation
carried out by the police.


In Denmark the database for investigations is updated with new entries in variable staged of
the investigation process. The prosecution databases are updated when a formal charge is
brought against a person under the Criminal Code, the Code on Illegal Weapon, the Hunting
Code, the Code on Illegal Substance, Law on Duties and Levy, Immigration law, and Traffic
law.


In Germany data is introduced to the investigations database as soon as there is initial
suspicion of a criminal act. However, in practice less sever crimes are only registered by the
prosecution that takes into account the documentation and file transferred to it by the
investigation team.


In Greece complaints to the Prosecutor’s Office are entered at the moment of their
submission, whereas data on prosecutions is entered at the time it is initiated. The police
enters arrests as soon as they are made.


In Hungary data to the central criminal database is submitted within three days from the event
which initiated the procedure: this may be the launch of the investigation, or the finalisation
of a court decision. In principle data must be introduced at the earliest possible time.


In Ireland data is entered in the PULSE system of criminal investigations at the reporting
stage of the crime or incident. In the D.P.P.’s office data is recorded when the file is received


                                                44
from the Chief Prosecution Solicitor’s Office or the State Solicitor’s offices.


In Italy the registry for prosecutions is updated with new entries when the public prosecutor is
informed with the notitia criminis, namely when the prosecutor receives sufficiently detailed
and specific information about the commitment of a criminal offence.


In Luxembourg data is introduced in the FAC at the beginning of investigations by the police.


In the Netherlands a file is opened as soon as a criminal investigation begins.


In Poland data to the Chief of the KCIK is transferred for inclusion to the prosecutions
database as soon as it is received, unless there is a legal obstacle (e.g. necessity to protect a
police informer). KSIP data is introduced by investigators as soon as an event triggers a new
investigation. Delays are observed in practice due to insufficient staff and heavy workload.


In Portugal a new entry to the database for investigations is made at the reporting stage. The
prosecutions database is updated as soon as a decision on indictment or shelving of the case is
made by the prosecutor’s office.


In Sweden local investigations databases include crimes from the moment that these are
reported to the police. However, the central MR register is updated with new entries when a
suspect for a crime is identified. The prosecutions database registers all investigations at the
time when investigations begin.


In the UK the national experts reports that the time of entry of data for proactive
investigations is not present in the public domain.


The comparative analysis of information on the time that data is entered to the national
investigations and prosecutions databases reveals a general consensus amongst the countries
under examination that investigations data must be entered at the earliest time possible, and
prosecutions data must be entered as soon as prosecution begins. There is little doubt
therefore that the usefulness of such data is optimised if it is readily available to the
investigations and prosecution authorities as soon as the event which initiates the
investigation triggers this procedure and as soon as prosecution begins respectively.


                                               45
Nevertheless, the time when investigations and prosecutions begin in each member state is not
a foregone conclusion. A group of countries the time of entry to the database for
investigations is vague and therefore investigating organs have some, albeit limited, discretion
as to when a new file will be entered in the database. In Bulgaria the database for
investigations is informed of a new file as soon as the pre-trial proceedings begin. In Cyprus
the database is updated in an early stage of the investigations. In Denmark this takes place at
various stages of investigations. In Hungary the entry is recorded within three days from the
event which triggers an investigation (in practice this may be later tan that). In contrast to this
vagueness of determination of the time of entry to the database, another group of countries
regulate very precisely when the investigating organ must record events: at the reporting
stage. This is the case in Belgium, Greece, Ireland, Portugal, Poland, and Sweden. A third
group of countries follows the middle way: entries are made at the beginning of formal
investigations whenever that is according to national rules of criminal procedure. This is the
case in Austria, Germany (at least in theory), Luxembourg and the Netherlands.


It would therefore be true and realistic to state that there is a common minimum denominator
in this point of our comparative research: databases for investigations are updated with new
entries as soon as possible and usually in the beginning of investigations procedures.


Similar levels of consensus amongst the countries under investigation exist with reference to
the databases for prosecutions. The vast majority of countries where such databases exist
(either in the form of automated electronic databases or even as simple records in paper),
entries are made when prosecution begins. Thus in Austria, Ireland, Poland and Sweden
entries are made as soon as the prosecutors are notified of the criminal offence by the
investigating organs. In Italy the entry is made as soon as the prosecutor becomes aware of
the crime from any possible source. In Germany, Greece and Portugal records are entered to
the systems when the prosecution begins. Notably, in Denmark the prosecutions database is
updated when the suspect is formally charged and only then.




5)   At which procedural stage is data erased for the databases?


In Austria erasure of data from the database for investigations takes place in two stage. In


                                                46
stage one the data is no longer accessible by the police but it remains within the system. The
data is erased after the lapse of an additional period of time in stage two of the erasure
procedure. In specific, files are withdrawn from the system (first stage of erasure) two years
after the end of the investigation (namely after the withdrawal of the court order, fiscal
prosecution authority or the equivalent order of a foreign authority; after the revocation of the
order of the security authority or the warrant; after the removal of any suspicion). Files are
withdrawn from the system at the latest five years after the introduction of the data into the
central information system. After an additional two years the second and final stage of erasure
takes place. In practice, the Austrian expert report inaccuracies in the system especially in
cases where erasure is dependent upon the decision of the prosecution to prosecute, as
communication between the investigating and prosecuting authorities falters. Erasure from the
database for prosecutions is undertaken ten years after the end of prosecution the data become
unavailable unless specifically requested.


In Belgium the database for investigations deletes details of files when they no longer serve a
concrete purpose for police missions.


In Bulgaria data is deleted via a court order for the acquittal or dismissal of the suspect for
lack of sufficient evidence.


In Cyprus data is erased if no evidence against the suspect is found. In case of conviction
erasure takes place between 5 and 7 years after the relevant criminal judgment depending on
the level of penalty imposed to the convicted.


In the Czech Republic data on investigations are erased at the end of the year after the year of
sentence. Data from the database for prosecutions is not erased.


In Denmark automatic erasure of entries from the database for investigations and prosecutions
database takes place two years after the death of the suspect or five years after the dissolution
of legal persons. Information on arrests without subsequent decisions or charges without
further action is deleted one month after the arrest was made or the charge was dropped.


In Germany investigation data must be erased as soon as the investigation ends either by
conviction or by acquittal. If there is no follow-up to the investigation data is erased two years


                                                 47
after their entry to the database.


In Greece data is erased when the subject dies or completes their 80th year of age. As there is
no provision on the new legislation concerning the establishment of a database for
prosecutions it is considered that erasure is not possible.


In Hungary data on covert investigations are erased two years after their entry. In the case of
conviction, however, the data is maintained for 20 years after the end of the consequences of
the penalty imposed on the convicted.


In Ireland criminal data is held indefinitely. In the case of acquittal the relevant data must be
destroyed promptly. CAB records are not erased until the investigations and any related
proceedings are completed. Prosecution records are not erased from the database maintained
by the D.P.P’s Office.


In Italy data is maintained for as long as required for the achievement of the purpose for
which the data was collected. The Italian expert reports that in the case of investigations and
prosecutions this time must be taken to signify the end of the relevant judicial proceedings.


In Luxembourg all data concerning criminal cases is erased either the last day of the year
following the year where a final and definitive judgment was made; or the last day of the year
where the statute of limitation of the prosecution (“prescription de l’action publique”) was
realized.


In the Netherlands data on investigations is erased when it no longer serves the purpose for
which it was collected. This occurs when the investigation is closed. Data retention rates are
described by law for the multiple Dutch registers and for permanent registers this period
varied between five and 30 years. For data on prosecutions there is a retention period of 20
years after the final sentence death of the convicted.


In Poland police maintains data in the databases for investigations until it is no longer needed.
The Polish expert reports that investigating officers tend to avoid erasure as one never knows
when data may be needed. The general rule is that data in the KCIK is kept in the system for
15 years.


                                                48
In Portugal data is maintained until no longer needed.


In Spain data is not erased.


In Sweden data from the register for investigations is erased at the end of the investigation, or
the withdrawal of the prosecution, or the pronouncement of the final court decision. Data
from the database for prosecutions is erased upon acquittal; or ten years after release of the
convicted.


In the UK there is no specific rule for erasure of data found in the multiple databases for
investigations and prosecutions. The general retention period is now ten years although
individual cases merit separate regulation. Police databases delete entries for investigations
ten years after conviction; five years after cautions; or forty two days after the end of
investigations when no conviction was made or for cases discontinued without caution.
Nevertheless, individual records could be considered for retention in case of specific offences
(e.g. sex offences, or acquittals or discontinuances because of a lack of corroboration).


The presentation of the national rules for the erasure of data from the databases for
investigations and prosecutions reveals an image of complete diversity. The approaches of the
countries under investigation on this issue differ to the extent that even grouping countries
together is near impossible.


In the case of databases of investigations a small group of countries hold the relevant data as
long as it serves a purpose. This is the case in Belgium, Italy, the Netherlands and Portugal.
However, the interpretation of this rule in practice leads to the non-erasure of data in Portugal
and to immediate erasure at the end of investigations in Belgium.


A group of countries introduces erasure of data upon acquittal of the suspect or upon the end
of investigations. This is the case in Bulgaria, Cyprus, Germany, Sweden. Another group of
countries introduces a short deadline for the erasure of relevant data upon acquittal or
conviction. This occurs in Germany (one month from arrest or drop of charges), and the
Czech Republic and Luxembourg (end of year after the year of sentence). In most countries
the erasure period ranges from two years from entry to the database in Germany and Hungary;


                                               49
four years after the end of investigations in Austria; five to seven years in Cyprus; five to
thirty years in the Netherlands; ten years in the UK; and twenty years after the end of the
sentence in Hungary. A number of countries maintains the data on investigations forever: in
Ireland, Poland, Portugal and Spain data is never erased. Similarly, in Greece data is only
erased when the suspect dies or reaches 80 years of age.


Databases for prosecutions are regulated in an even stricter manner. In a large group of
countries data is never erased: this is the case in the Czech Republic, Greece, Ireland, Portugal
and Spain. In the Netherlands the period of erasure is twenty years after the sentence is
pronounced. The rest of the countries where databases for prosecutions are available, the
erasure periods are smaller from ten years in Austria and the UK to fifteen years in Poland.


On the basis of this comparative analysis it would be very difficult to draw general
conclusions on erasure. Erasure from databases for prosecutions is ether impossible or occurs
after a long period of time. Erasure from investigations, however, tends to differ considerably
amongst the countries under investigations.


This variation in erasure periods creates great difficulties in the exchange of data from
investigations amongst EU member states. It is almost impossible for police authorities in one
country to know if and for how long data is kept in their EU counterparts. This, in
combination with the lengthy period of completion of data exchange procedures even within
the EU and the urgency of information required in investigations, renders coordination of
investigations across the border ineffective if not impossible. It seems that requests for data
from police authorities abroad are made with improbable results thus creating a perplex
situation as to the availability of data for national prosecutors.


The analysis of erasure periods reveals the national barriers of databases at a time when
transnational crime flourishes. National databases proceed to erasures without consideration
of the utility of the data elsewhere in the EU. Thus data may be erased if it is considered to be
of no use at the national level, when it can be crucial to investigations abroad. Surely, under
these circumstances national databases can not be considered as efficient a means for
combating transnational crime within the EU.


6)   What is the purpose of the databases as described in their founding instruments? What is


                                                 50
    their use in practice?


In view of the diversities in the existence of databases for investigations and prosecutions, the
time when new entries are recorded and, perhaps more so, the period of erasure within the
states under examination, the common goals that such databases are set to achieve in the
states under examination seem surprising.


One of the main aims of these databases is the better management of the files of the
investigating and prosecuting authorities. In other words, these databases are considered a tool
for quality control in Bulgaria, Denmark, France, Greece, Ireland, Italy, Spain and the UK.


In a large number of countries databases for investigations and prosecution aim to serve as an
internal tool for the completion of the tasks assigned to the police and the prosecuting
authorities within the states under examination. This is the case in Austria, Denmark, France,
Greece, Hungary, Ireland, Italy, the Netherlands and Sweden. Of course this aim is
accentuated in countries where databases are not available to the public and serve as a means
of observation of the process of the investigation or the prosecution, for example in Ireland
and Greece.


In Belgium, Bulgaria and Germany databases for prosecutions and investigations are also
viewed as a means of integration of the several divisions of the forces investigating and
prosecuting crimes. This aim is more prominent in countries with a federal system or in
countries where investigations and prosecutions are conducted by more than one authorities.


National laws in the countries under examination reveal a number of aims that national
databases are set to achieve:
      Assist per-trial proceedings (Bulgaria and Hungary);
      Collect all files concerning crimes of a single persons (Germany);
      Highlight repeat offenders (Ireland); and
      Employment vetting (UK).


Moreover, nobler causes served by the national databases for investigations and prosecutions
include:



                                               51
        Prevention and suppression of crime (Poland);
        Detection and prosecution of offenders (Poland);
        Preservation of public order and security (Spain); and
        Service to quick and effective proceedings (Hungary).


Furthermore, these databases serve statistical needs for the investigating authorities, the
prosecuting authorities and the state in general as noted by the introductory measures for these
databases in Denmark, Ireland, Hungary, Italy and Spain.


There could be no more complete a list for reasons for the introduction of an EU database for
investigations and prosecutions from the one offered by the national laws of the member
states under examination. Transferred to the EU level, the Belgian, Bulgarian and German
argument for the use of such databases in the integration, coordination and subsequent
efficiency of the many divisions of national forces involved in pre-trial criminal proceedings
is not only valid but timely. In the aftermath of the paedophilia case in Belgium the need for
coordination and collaboration of the national investigating and prosecuting authorities could
not be more obvious or more opportune. Similarly, the German and Irish line of reasoning for
the quick and easy identification of repeat offenders would be an excellent argument for the
creation of an EU database which could easily and quickly lead to the identification of repeat
offenders not only within each member state but also across the borders of the EU. Even the
UK call for complete files for employment purposes would be served by a database including
all investigations and prosecutions against a prospective employee irrespective of which
member state was the host of the relevant proceedings.


Perhaps more importantly, the general areas which are served by these databases at the
national level would be equally, if not more, applicable at the EU level. The need to prevent
and suppress crime, to preserve public order and security and to detect and prosecute
offenders in quick and efficient criminal proceedings could not be served any better but from
the introduction of a tool that would allow immediate access of the investigating and
prosecuting authorities to all relevant proceedings against a person within the whole of the
EU.


7)    Is there collaboration with foreign authorities for the acquisition of data on



                                               52
    investigations and prosecutions (please refer to Europol/Eurojust)? Which authorities
    have access to this data?


The comparative analysis of the national reports on the current mechanisms of collaboration
amongst national authorities for the transmission of data on investigations and prosecutions
reveals that there is a large number of instruments introducing exchange mechanisms. The
1959 European Convention on Mutual Assistance in Criminal Matters seems to be the current
main mechanism of collaboration amongst national authorities. At least Austria, Belgium,
Cyprus, the Czech Republic, Denmark, Finland, France, Greece, Germany, Italy, Portugal,
Spain and the UK make active use of this instrument. The 2000 MLA Convention has been
ratified and is reported to be in use in a number of countries under examination, including
Austria, Czech Republic, Germany, Greece, Ireland, Luxembourg, Spain and the UK. Interpol
and Europol are equally popular mechanisms of collaboration although Europol has a
narrower mandate since it relates to EU Member States only. Interpol was reported as a useful
channel of cooperation both for investigations and for prosecutions in Austria, Belgium,
Bulgaria, Cyprus, Greece, Hungary, Ireland and the UK. Europol was reported as a common
channel for exchange of data both on investigations and prosecutions at least in Austria,
Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Greece, Hungary, Ireland, Italy,
Luxembourg, the Netherlands, Poland and the UK. With reference to prosecutions Eurojust
also serves as a common channel of data exchange at least in Austria, Belgium, the Czech
Republic, Denmark, Greece, Hungary, Ireland, Luxembourg, the Netherlands, Portugal,
Spain, Sweden and the UK. Moreover, the Schengen agreement and the SIRENE database
seems to actively assist exchange of information for prosecutions as reported by the experts
from Austria, Belgium, Denmark, Germany, Greece and the UK. It must be noted that still not
all EU member states are signatory parties at least for the time being. Most states under study
have signed bilateral agreements for the exchange of data related to criminal investigations
and prosecutions and some experts report that this is a channel often preferred from other
established channels for the exchange of data within the EU.


It is quite important to establish that the relatively ample number of existing collaboration
mechanisms does not automatically signify effectiveness of the system. In fact, the national
experts note ineffectiveness due to a number of factors. First, each of these mechanisms has a
limited mandate as not all instruments of collaboration apply to all national investigative and
judicial authorities. Interpol, Europol and Schengen searches -which are the main tools of


                                              53
retrieval of data- apply to police searches only at least in principle. Requests of information
from prosecutors are undertaken via the MLA, whereas other national authorities which do
not fall within the field of application of either of these clusters of instruments are left with
the inability to recover information or with the option of requesting information from the
police or the prosecutors whose authority to release the relevant data is rather doubtful
anyway.


Second, not all of the countries under study participate to all mechanisms. Europol refers to
existing EU Member States and Schengen does not even include all EU Member States. In
fact, it can be argued that it is precisely the existence of so many instruments which renders
the system of collaboration -even within existing EU Member States- rather unworkable in
practice. This problem will continue to exist as long as the exchange of criminal data relies on
instruments of the third pillar or on mere international agreements.


Third, reliance on international instruments -such as Interpol- bears an unavoidable problem
of enforcement. There is little that one country can do if another country delays transmission
or refuses transmission altogether.


Fourth, even within the existing mechanisms of collaboration, national experts (at least from
Austria, Cyprus, France and Luxembourg) report real concern on the time required for the
completion of a transmission of data as well as on the complexity of the procedure involved.
This can be attributed to the focus of the current system, as reported by the French and Greek
experts, on detailed investigations rather than routine criminal records checks as a means of
combating organised crime. Apart from the main danger resulting from this mentality, which
is the inevitable discouragement of checks introduced by EU instruments related for example
to public procurement, this approach instigates neglect of prevention and focus on the
repression of organised crime within the EU. This is in direct clash with the policy of the
Commission and the Council in the field of organised crime as clearly stated in Tampere and
beyond. Fifth, the current system of data exchange relies on national laws and procedures
which are not standardised, let alone harmonised. Thus, national conditions of reciprocity,
data protection or additional safeguards (such as the Spanish requirement for judicial control
of any transmission of personal data) introduce further delays to the system, further demand
for resources and further hurdles to the quick and complete acquisition of data crucial in the
combat against organised crime. The incompatibility of national procedures for the exchange


                                               54
of data in combination with additional national inadequacies, such as the Polish lack of
coordination amongst the national data possessing units, lead to a discerningly slow,
ineffective and complicated procedure whose outcome, content and use can not be foreseen.


Fifth, there seems to be a reluctance in some member states to allow access to data on
investigations. In Austria, Belgium, Bulgaria, Germany, Ireland and Spain there is no
exchange of data on investigations. This may be due to tradition or a result of constitutional
constraints in the form of a strict application of the presumption of innocence. In a group of
member states mutual assistance is considered to be a right for national authorities. This is the
case in Austria, Belgium, Denmark, Germany, Hungary, Ireland, Italy and Spain. As a result,
foreign authorities may be refused cooperation, at least in theory. In fact an obligation to
provide the data requested by foreign authorities is noted only in a small group of member
states and only in relation to the criminal police. This is the case in Austria, Cyprus, the Czech
Republic and Greece.


Sixth, and perhaps most importantly if we are to draw conclusions on the efficiency on
current EU mechanisms of mutual assistance, most member states prefer to utilise bilateral or
international instruments rather than EU instruments for the request of information from
databases of investigations and prosecutions. Bilateral agreements feature prominently in the
requests made by Austria, Belgium, Bulgaria, the Czech Republic, Denmark, Germany,
Greece, Hungary, Ireland and Sweden. International instruments serve better Austria,
Belgium, Bulgaria, the Czech Republic, Denmark, Germany, Greece, Hungary and Ireland.


In fact, Europol and Eurojust seem to be utilised by national authorities very little, if at all.
Europol is a mechanism used for police cooperation but only for the crimes falling within its
competence and only via data transfer. Even this limited use is undertaken by a small group of
countries, such as Austria, the Czech Republic, Denmark, Greece and Ireland. Eurojust as a
means of accessing data on prosecutions is used in an elementary degree by Austria and the
Czech Republic, whereas a small group of countries are only now beginning to exploit its
potential. This is the case in Denmark, Greece, Hungary, Ireland and Portugal.


Seventh, member sates continue to afford mutual assistance under conditions and
prerequisites. The imposition of these inhibit the unhurdled practice of mutual assistance as
they deter its application in two main ways: first, it is possible that assistance will not be


                                               55
awarded if, under the uncontrolled subjective view of the executing state, the conditions are
not met; second, often the time needed for the control of the fulfilment of these conditions
delays the response to the request so much that the data can serve little practical purpose.
Amongst the conditions imposed one could refer to reciprocity (in Austria, Belgium, Cyprus
and the Netherlands) and data protection requirements (in Austria, Belgium, the Czech
Republic, Denmark, Greece, Ireland, Italy, Portugal and Sweden).


It is evident that the existing system of data exchange is not adequate. Denmark, Portugal and
Spain report satisfaction with the system perhaps as a result of their general reluctance to
afford further access to such databases. Austria, Germany, Greece, Ireland, the Netherlands
and the UK, however, report dissatisfaction with s system which does not serve as an
effective weapon against transnational crime, even though commonly the data already exists
at the national level. In fact, even this inadequate system is closed for some of the main
players in the combat against organised crime such as quasi-judicial bodies and bodies in the
sphere of criminal administrative law. Is there a way in which things can improve?


8)   In view of measure 12 of the mutual recognition programme (OJ C 12, 15.1.2001, p. 10),
     would linking national databases be an effective weapon against transnational crime or
     would an EU database on investigations and prosecutions from all EU Member States be
     preferable? What added value for your national authorities do you see in the setting up
     of a EU judicial database as foreseen in Eurojust and, if there are any, what would be
     the current legal difficulties to be upheld in your country for the connection to such a
     data bank?


As things stand there is no direct access to national databases for foreign authorities in the
vast majority of EU Member States. This is the case in Austria, Belgium, Bulgaria, Cyprus,
Czech Republic, Denmark, Spain, Greece, Hungary, Ireland, Italy, Portugal and the UK. In
fact, Germany seems to be the only member state awarding equal rights to access to foreign
authorities. Leaving access aside, as things stand, access to relevant data can only be afforded
via mutual assistance. This is also the case in Germany. Thus, linking the national databases
would not be a simple endeavour. Issues of access have to be addressed. Similarly, an EU
database on investigations and prosecutions would require resources and concessions from the
member states.



                                              56
It would be fair to state that the position of most member states in the dilemma between
linking national databases and creating a new EU database opt for the second. And indeed
they do so enthusiastically. Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, France,
Italy, Luxembourg, Sweden and the UK report that an EU database for investigations and
prosecutions would be a most effective weapon against transnational crime. A group of
member states, however, prefers the linking of national databases. This is the case in
Germany, Greece, Hungary, and Portugal feel that an EU database would duplicate the
laborious work undertaken for the maintenance of national databases. They eel that the
resources put in the creation of a new centralized database can not be justified, especially
when the need for added value is taken into account. Finally, a group of countries seem
indifferent to the choice. Denmark expresses doubts as to whether any measure is needed in
this area and expresses the view that the add on value of any new instrument would lie with
the prevention and combat of international crime. Ireland envisages difficulties with any
system of further data exchange as Irish law does not recognize erasure and therefore the need
to harmonize national databases or indeed entries in an EU database would be grave and
would result to significant amendments of national criminal law and tradition. In the
Netherlands, the method of data exchange is irrelevant but a legitimate and concrete
justification of any new measure is absolutely necessary for the reception of the new measure
by Dutch law. In Poland there seems to be a distinction between databases for investigations
and those for prosecutions: in the case of investigations the Poles prefer the linking of
national databases whereas in the case of prosecutions an EU database hosted by Eurojust
seems the preferred option. Spain and the UK make a case for a two stage approach, which is
also supported by the Commission in the case of an EU database for convicted persons too.
The proposal put forward by these two countries is to begin with linking national databases
and then to proceed to an EU database.


One immediate conclusion from this comparative analysis is that there is wide consensus that
knowledge of data from other member states on investigations and prosecutions is crucial in
the combat of crime, not only transnational and organised crime but also crime in general.
There is little doubt therefore that the unhindered and immediate access to such data from the
other member states would facilitate the work of investigators and prosecutors in the member
states thus raising the effectiveness of the combat of crime in the EU as a whole.


However, there is a clash between those who opt for a centralised EU database and those


                                               57
opting for linkage of national databases perhaps in the model of SIS. This difference of
opinion, be it inevitable in a Europe of 25, seems to stem from a disagreement as to the
content of the proposed database and the subsequent competence of its host. Austria wishes to
ensure that data on criminal organisations are included in the database. The Czech Republic
stresses that data on victims of crime are also to be included. Bulgaria wishes to see data on
drug trafficking, on trafficking of human beings and other crimes which seem to be in the
centre of the attention of the Bulgarian police and prosecuting authorities.


It seems therefore that the feasibility and acceptability of a database on investigations and
prosecutions would rely upon its content, the conditions for access and the added value that
the final scheme would present. The latter must take into consideration existing databases
such as the Europol Information System and the SIS which are already in the disposal of
national investigating and prosecuting authorities. The competences of both the EIS and SIS,
however, are rather limited. The crimes involved and the data which can be kept by both
systems do not refer to investigations and prosecutions at least not fully. Moreover, the
purpose of the proposed database for investigations and prosecutions would be much different
from the aims of the two existing databases. Coordination of national investigations and
prosecutions as a means of achieving effectiveness in the combat of crime, saving resources
from the duplication of effort of more than one national investigating and prosecuting
authorities, and indeed understanding of the full structure of criminal investigations which are
active in crimes other than those within the competence of Europol and Eurojust are aims
which, in the opinion of this horizontal expert, could well justify the addition of yet another
electronic system for data.


The question then is, what format would this electronic system take. There are two models
which can be used. First, an EU database in the model of the Schengen Information System
where there is one central register with data from all member states with direct access for all
national investigations and prosecutions authorities. The advantage of this system is
immediate access to information from all member states organised in a structure which is easy
to understand and easier to use as the data is organised in comparable categories engulfing
national laws. Second, there is the model of the Financial Intelligence Unit-Net (FIU-Net), a
data exchange network between national FIUs of the participating Member States based on
their respective national configurations, without any central system.



                                               58
The majority of national experts opt for the first model and support the view that this would
be more effective. Yet even supporters of the centralised model identify difficulties in
practice. There is an inevitable difficulty in the classification of data due to the lack of
uniform approaches to substantive and procedural criminal laws amongst the 25 member
states. The exact moment when an investigation becomes a prosecution and when criminal
proceedings begin is not the same in all national legal orders. There is no doubt that finding
corresponding terminology for suspected crimes and the suspected role of the person under
investigation or prosecution is a near impossible task, at least until the harmonisation of
crimes and penalties is achieved. There is therefore a strong argument for the adoption of an
EU database as the ideal and the acceptance of a network as a first phase approach. In fact, the
linkage of national databases can take the form of a gradual participation to the system, along
the lines of the Genson model.


There is of course the need for an allocation of immense resources in the linkage of national
databases. Although the SIS system can be utilised as a vehicle thus avoiding the creation of
new structural forms, agreement on the minimum data to be included in the national databases
participating to the scheme will result to the allocation of resources from the national side.
Even worse, where national databases for investigations and prosecutions do not exist or are
incomplete, they will have to be created under the requirements of the intermediary system
and then re-furbished to accommodate the final stage of the EU database. In view of this, it is
doubtful that the two stage approach, with all its benefits, should be undertaken lightly.


9)   Could the EU establish a database for investigations and prosecutions that includes
     relevant data on EU citizens, supervised by a judicial/quasi judicial authority be
     acceptable to your national legal orders? What problems, if any, would you foresee and
     how could they be resolved?


A Framework Decision on the proposed database, irrespective of the format that it will take
will be necessary for its reception by the national legal orders of the member states.
Supervision from a judicial or semi judicial authority is considered necessary by the majority
of national legal orders. Problems relate to the access awarded to the database and data
protection legislation must be in place to ensure that the balance between the need to combat
organised crime and the respect and protection of the civil liberties of EU citizens is
maintained.


                                               59
10) Could the EU database supply data to be accepted and used as indirect information or
    evidence before your national courts, or would your national laws limit its use to the
    support of investigations and prosecutions via the provision of soft intelligence?


Most national experts report that evidence deriving from an EU database on investigations
and prosecutions or indeed evidence stemming from a network of national databases could be
used as evidence before the criminal courts. This is the case with Bulgaria, Cyprus, the Czech
Republic, Denmark, Germany, Greece, Portugal, Spain, and Sweden.


Moreover, a number of member states foresee that there is a possibility that evidence from
such databases could be considered admissible in the national criminal courts, provided that
the latter can demonstrated flexibility and accept a broad interpretation of the current
provisions, or provided that the admissibility of such data as evidence is expressly introduced
in the EU instrument establishing the new database. Thus, Italian law considers admissible
only evidence obtained in trial, although letters rogatory have been utilised as evidence by the
Italian courts. Similarly, in the Netherlands the possibility of accepting this form of new
evidence is possible if introduced by law. In Austria evidence obtained by forbidden methods
is inadmissible: if the EU instrument establishing the new database were to render the use of
such data admissible, Austrian law would comply provided that the method of obtaining such
evidence was also regulated thus allowing the Austria courts certainty as to the legality and
legitimacy of the data.


A large group of countries, however, consider the admissibility of such evidence problematic.
Belgium, France, Luxembourg and Poland view the purpose of such evidence more as soft
evidence rather than evidence in court, as their national legal orders would face difficulty in
admitting such data to court. Hungary would consider such data inadmissible due to the
principle of immediacy which is prevalent in Hungarian criminal procedure. In Ireland and
the UK the hurdle lies with the principle of hearsay which would prevent the admission of
data from such databases in court.


Member states seem to be divided on this point. Although the majority can accept evidence
from the proposed database –whatever its form- for use before their national criminal courts,
groups of countries sharing similar criminal procedural laws make face considerable difficulty


                                              60
in utilising the data before their criminal courts. Nevertheless, it is now widely accepted that
if the admissibility of such evidence were to be expressly introduced in the EU Framework
Decision establishing the new database, must national legal orders could, if they wanted,
adapt to receive this provision.


11) Which crimes could be included in the EU database for investigations and prosecutions?
    Could it extend past the limited crimes included in the Europol/Eurojust mandate?


Member states appear to be divided in their perception of the types of crimes to be included in
the database for investigations and prosecutions. As could be expected, a number of countries
envisage that the database would be limited to crimes which fall within the competence of
Eurojust. This is the case with Cyprus, Denmark, Greece, Hungary, Ireland, the Netherlands
and Spain. There seem to be two reasons behind this view. First, the crimes included in the
competences of Europol and Eurojust have been selected on the basis of criteria which justify
their subjection to EU legislation. The principle of subsidiarity would allow EU legislation
only where national legislative approaches would be considered ineffective. It has so far been
accepted that this is the case exclusively with crime of an organised nature and indeed
transnational organised crime. Moreover, the principle of proportionality would prevent the
subjection of minor offences to Eurojust and Europol as it would be legally and financially
ineffective if minor crimes were to undergo elaborative analysis at a transnational or EU level.
Furthermore, the principle of legitimacy prevents the subjection to EU scrutiny of crimes
which do not fall within the competence of EU criminal law. Although the boundaries of EU
criminal law are constantly being stretched in order to accommodate measures which could
contribute to the effective combat against organised transnational crime, as things stand, it
would be difficult to find a legal basis for crimes which are not included in the instruments of
Europol and Eurojust. Second, it would be impossible to host this database by Eurojust or
even Europol if it included data on crimes falling outside their competence. Creating a new
agency to host this particular database would not be a viable option as it would lack add on
value.


Nevertheless, a large number of member states seem willing to depart from the obvious
Eurojust/Europol limited model. A surprisingly large number of member states seem ready to
accept a database involving all crimes. This is the case in Belgium, the Czech Republic,
Luxembourg, Portugal and the UK. The reasons behind this choice may be multiple. There is


                                              61
wider consensus on the need to proceed with radical prevention and combating measures if
the result in the combat against crime at the EU and indeed the national levels is to benefit the
“good guys”, the authorities and more importantly EU citizens. There is also wider consensus
that serious and transnational crime requires serious and transnational solutions. There is also
a need for a number of national laws to distinguish between the contents and scope of the new
database and the existing ones, at least if the reception of the new database by their national
laws is to be achieved with little difficulty.


In addition to the second category of member states a group of countries are willing to accept
any crime to be included in the proposed database, provided that certain conditions are met.
The selection of these requirements constitutes a fantastic guide as to the types of crimes that
countries open to the wider approach are willing to accept. Bulgaria proposes serious crimes,
Italy refers to crime of alarming social relevance, Ireland insists on the application of the
principle of proportionality, and Sweden excludes all crimes incurring penalties of less than
one year. Prof. Bollinger, the German expert, encapsulates these requirements beautifully
when he limits crimes to be included in the database to transnational, serious or organised
crimes.


There is little doubt that there is momentum for the inclusion of a wider circle of crimes in the
proposed database. If the format to be selected is that of a network of existing databases, then
it would not be cost deficient to exclude certain crimes from the network, as this would result
–at least in practice- to the creation of new national databases as components of the
centralised network. If the model of a centralised EU database is to be selected, then the call
for the inclusion of crimes beyond those included in Europol’s current information system is
louder. In any case, the majority of member states seem to agree on the need for wider
mandate especially since organised crime may utilise other forms of criminal activity rather
than those included in the competences of Europol and Eurojust. Equally, however, there is a
need to respect the same principles which led to the delimitation of the competences of
Europol and Eurojust: subsidiarity, proportionality and legality to name but a few. It would be
therefore wise to limit the crimes included in the database for investigations and prosecutions
to those considered to be of a transnational, serious or organised nature. In fact, the model
introduced by Prof. Magnusson would facilitate the classification of crimes as serious for the
purposes of the database. Crimes incurring penalties of less than one year should not be taken
into account for the purposes of the database. After all, crimes with penalties of less tha one


                                                 62
year would not be of increased social relevance and by definition can not be serious,
transnational or organised. Indeed, the Hansen proposal for the introduction of a code for
investigators and prosecutors utilising the database could prove very useful, especially if the
database is to take the form of a network of existing databases.


12) Which EU agency could be a suitable host for the EU database? Could Eurojust
    (pursuant to Article 14 of the Eurojust Decision) establish a database for investigations
    and prosecutions that includes relevant data on EU citizens, supervised by a
    judicial/quasi judicial authority be acceptable to your national legal orders? What
    problems, if any, would you foresee and how could they be resolved?


There is wide agreements amongst the national experts participating to this study that
Eurojust hosts the proposed database. The main advantage for Eurojust is that it is considered
a judicial or semi-judicial organ. As most national legal orders will not allow the hosting of
such a database by a non judicial authority Eurojust seems to be the obvious choice.


The alternative, namely the creation of a new agency as a host for this database, would lack
add on value and would perplex the already fragmented untidy system of EU criminal law
even further.


In fact, when the Constitution comes into force the role of Eurojust can be strengthened
further and its competences can be widened to engulf serious transnational and organised
crime. This regulation would put an end to the demand for further competences for Eurojust
and further databases referring to specific crimes and sanctions, such as paedophilia or
disqualifications.




Conclusions


Do we need a database for investigations and prosecutions?


There is little doubt amongst the participating experts and the persons interviewed for the
purposes of this study that there is a gap in the current legislation and practice of
investigations and prosecutions for crimes of a transnational nature. In order to respond to the


                                               63
question of the most effective means of ameliorating the current situation, one has to look to
the efficiency of national schemes.


Most member states maintain databases for investigations and prosecutions. In the majority of
member states these are kept separately, although there are countries which maintain a single
database for investigations and prosecutions. Even where two separate databases are kept,
questions arise as to when an investigation ends and a prosecution begins. From the point of
view of EU criminal law, the diversities in the national criminal law systems would render
any attempt to distinguish coherently between investigations and prosecutions a rather
impossible task. For this reason a single database must be considered.


What is the added value of such a database?

An argument for the establishment of such a database can be drawn from the national legal
orders of the member states which introduce such archives of data as a means of keeping a
track on proceedings, informing other relevant authorities at the national level on activities
initiated by other departments, and coordinating prosecutions and investigations at the
national level. In an number of countries an analysis of criminal organisations also takes
place. On the basis of national experiences the add on value of a database for investigations
and prosecutions lies with the novelty of its scope: record keeping of investigations and
prosecutions in all member states; providing information on investigations and prosecutions
initiated in other member states; coordination of multi-national investigations and
prosecutions, and indeed analysis of criminal organisations active in more than one member
states.

The format of the database


The format of the proposed database can be either a new EU centralised database or a network
of national databases probably maintained and organised under the auspices of an EU
institution.


Linking national databases seems an optimum scenario as it would not require harmonisation
or even approximation of national procedural and substantive laws. However, the
discrepancies amongst national databases –where existent- within the member states can not
and should not be underestimated.


Indeed there are profound complexities and diversities in the legal systems for databases for
investigations in EU member states. Not all member states maintain such databases although


                                              64
there is a trend for the creation of similar archives within the EU. Second, in many member
states the archives on investigations are fragmented and scattered in the regions often without
inter-linkage or interrelation of any sort. Many member states maintain a number of databases
for different purposes. Most investigations archives are kept by the national police authorities,
although some member states assign the prosecution or federal enforcement authorities. In
some member states the relevant archives are not automated and do not exist in an electronic
format.


Contents

However, consensus is possible and can be traced in a proposal following current practice in
the majority of member states. Indeed, most member states would agree without much
difficulty with a database for investigations which:
         Includes investigations and prosecutions
         Includes archives covering all regions of the state in question
         Is kept by a police or prosecution authority
         Is automated; and
         Includes criminal investigations only; personal data of the person under investigation;
          and information on the crime under investigation.


In the case of databases for prosecutions member states can not agree on the necessity for
such archives. A large number of members states already uses such archives whereas others
do not have them at all. In fact, the lack of agreement for the need for databases for
prosecutions lies exactly with the belief that yet another database apart from the one for
investigations would signify a duplication of effort which would also endanger the accuracy
and completeness of the contents of wither one of the databases or both. It seems therefore
that member states would oppose a duality of archives but that they would support a database
for investigations an prosecutions in which they could include whatever data is in the disposal
of national authorities be it investigation or prosecution authorities.

Access

Access to the database can be awarded provided that the EU laws on data protection are
followed. In principle, most member states would seem able to accept access for the
investigating and prosecuting authorities of the member states. The German model which


                                                 65
awards direct and equal access to EU and national authorities of the member states as a matter
of principle is indeed a commendable one and its express introduction would facilitate the
unhindered functioning of the database.

Moreover, most national legal orders would award access to the database to the subjects
themselves which would also be offered the right to appeal against false, incomplete or
incorrect entries. This would be impossible in the member states that utilise these databases
for internal monitoring purposes only. If the EU instrument introducing this database was to
follow the model of an archive simply for the internal use of EU and national investigations
and prosecutions authorities, then it would be possible to limit the access of subjects to them.
However, especially if the linkage of national databases is to prevail then access must be
introduced in order to ensure that the majority of national legal orders can receive the EU
instrument without major data protection concerns.


Furthermore graduated access for a wider circle of authorities could be possible but this may
be left to the national laws of the member states which could regulate where the data can end
after they are obtained by the national authority which is awarded full access to them. For
example, indirect access may be awarded to judicial authorities of the member states.


Time of entry


There is similarity in the practice prevailing in the vast majority of member states with
reference to the procedural stage when data on investigations and prosecutions are entered:
this takes place at the earliest possible time.




Time of erasure

However, there is no similarity in the national approaches on the time when an entry is erased
from the databases on investigations and prosecutions. Erasure from databases for
prosecutions is ether impossible or occurs after a long period of time. Erasure from
investigations, however, tends to differ considerably amongst the countries under
investigations.

Erasure from the database is an issue which is deemed to cause difficulty in any consultation


                                                  66
concerning the introduction of a new database. However, apart from the problems which will
undoubtfully occur there is a lesson to be learnt from the relevant national provisions. In
many countries the data is erased when no longer needed. There is no consideration of the fact
that the data may well prove very useful outside the national borders and within the EU. In
fact it is very possible that the combined use of data may be very useful for the country itself.

Aim and scope of the database

The aims of national databases are all or any of the following:
      better management of the files of the investigating and prosecuting authorities
      an internal tool for the completion of the tasks assigned to the police and the
       prosecuting authorities
      a means of integration of the several divisions of the forces investigating and
       prosecuting crimes
      assistance in per-trial proceedings
      collection of all files concerning crimes of a single persons
      highlighting of repeat offenders
      employment vetting
      prevention and suppression of crime
      detection and prosecution of offenders
      preservation of public order and security
      service to quick and effective proceedings; or
      assistance with statistics.


There could be no more complete a list for reasons for the introduction of an EU database for
investigations and prosecutions from the one offered by the national laws of the member
states under examination. The proposed database could aim:
      to assist with the integration, coordination and subsequent efficiency of the many
       divisions of national forces involved in pre-trial criminal proceedings is not only valid
       but timely
      to identify repeat offenders quickly and easily
      to provide complete files for employment purposes
      to prevent and suppress transnational and organised crime
      to preserve public order and security

                                                67
      to detect and prosecute offenders in quick and efficient criminal proceedings

But could all this be achieved via the current mechanisms of mutual legal assistance?

The comparative analysis of the national reports on the current mechanisms of collaboration
amongst national authorities for the transmission of data on investigations and prosecutions
reveals that there is a large number of instruments introducing exchange mechanisms.
However, this does not automatically signify effectiveness of the system.
       Inefficiencies identified in the study refer to:
      the limited mandate of the current instruments for mutual assistance which broadly
       cover either investigations or prosecutions
      the fragmentation in the implementation of mechanisms by the member states
      the lack of efficient enforcement mechanisms for international and bilateral
       instruments which seem to be the main tools utilised by national authorities
      the disproportionately long time required for the completion of a transmission of data
      the complexity of the procedure involved for the transmission of data
      the unfortunate reliance of the current system of data exchange relies upon the national
       laws and procedures which are not standardised, let alone harmonised
      the resulting reluctance of some member states to allow access to data on
       investigations
      the national conditions and prerequisites under which mutual legal assistance is still
       afforded.

A network or an EU database?

National experts and the author of this report find it difficult to view one solution as
prevalent. The advantages of a network linking national databases are evident. Existing
databases can easily be transferred to a network of databases without the need for
harmonisation of content, usage, access or erasure. The SIS model would be an obvious
choice and a formidable framework within which the network can function. There will not be
a need for additional infrastructure or resources, simply the new network can be installed on
the existing computers and administrated nationally by the same offices which administer the
SIS. A central office can administer, coordinate and supervise at the EU level. The network
could be established as soon as an instrument is agreed by the Council.




                                                68
However, there are some complications as the network will also present considerable
disadvantages. The lack of approximation of databases at the national level signifies
discrepancies in the content, classifications and scope of the national databases which are
bound to create confusions, inability of national authorities to identify the data offered to
them by the new network and inability to utilise the full potential of the new archive. Of
course this can, to a degree, be resolved by liaison officers and magistrates in Eurojust the
European Judicial Network or via personal contacts within the member states. This would
take us back to the inherent problems of mutual assistance in criminal matters that involve
delays, language issues, terminology discrepancies, and crucial differences in national
substantive and procedural laws.


It is, therefore, recommended that the Commission follows the model of the European
Criminal Records and views the introduction of the database in a two stage approach. In the
immediate future, the network will serve the EU and the national authorities well as it will
provide them with a wealth of information. However, in the long term it is a centralised
database which will tackle the need for clear, accessible and usable data on investigations and
prosecutions in other member states. The EU database can become a reality, and indeed
member states must begin working towards it, when national databases are harmonised to a
degree which will allow their incorporation in a system of national registries with similar
content, scope, access, usage, entries and erasures.

Could the EU establish an EU database under the supervision of a judicial authority?

The EU database, as well as the network, needs to be placed under the supervision of a
judicial or quasi-judicial authority. There is little doubt that the ideal host for this and other
similar archives would be the European Public Prosecutor’s Office in the format that may be
established after the Constiution comes into force and if its competences extend beyond the
protection of the financial interests of the EU. However, until this is established the host that
fulfils the requirements of national legal orders for supervision by a judicial or quasi judicial
authority would be Eurojust.


Could evidence from the database or network be used in court as evidence?


In the majority of member states this is possible and desirable. For the purpose of creating



                                               69
certainty in the law it is recommended that the Commission introduces an express provision
attributing admissibility to the data from the database or the network. At least this is the
request of national experts. However, it is doubtful that the competence of an EU instrument
could intervene in the national procedural rules of the member states unless the member states
themselves agree to this in the Council. Perhaps a two stage approach would be valuable at
this point. The network may function even if its constituting instrument allows member states
discrepancy as to the possible use of data from the network in court as evidence.


Perhaps an express provision rendering such data admissible to the national criminal courts
could be agreed upon once the harmonisation of national substantive and procedural criminal
laws are harmonised and the national requirements of member states concerning the legality
in obtaining the data included in the database can be met in all member states.


What crimes can be included in the database?

If the two stage approach is to prevail, the network may include all crimes. It would be
counter productive to link national archives as a means of avoiding harmonisation at this stage
and then introduce qualifications as to what data can be included in the national archives
which will constitute the components of the network.


However, the general principles of EU law require that the national investigations and
prosecutions authorities refrain from pursuing international investigations and prosecutions
for minor offences or crimes of a non transnational or organised nature. In order to ensure that
these principles are applied in practice it would be beneficial if a “code of best practice” was
introduced to ensure that national authorities utilise the data from the network or database in
cases of serious, transnational or organised crime only.


The supervising authority at the EU level, which may well be Eurojust, can ensure that the
code is followed and may consider appeals from individuals suffering injustice due to the
failure of national authorities to comply with the provisions of the code. One must always
keep in mind that breach of the code will need the participation of more than one national
authorities, rendering the possibility remote anyway.


Which agency could be the host of the network of database?


                                               70
Eurojust would be an ideal host, especially in view of its revised mandate. After all,
iinvestigations and prosecutions fall within its competence. However, in the long term a
European Public Prosecutor’s Office, when established, could also serve as a host.




                                              71
                                                     Table 1

                                        Databases for investigations

Country       Database   Central           Host                 Regional   Electronic     Criminal        Basis in
                                                                                        investigations   law/statute
                                                                                            only
AUSTRIA          Y         N        Ministry of Interior                       Y              Y              Y
BELGIUM          Y         Y              Police                               Y              Y              Y
BULGARIA         Y         Y                                       Y           Y              Y              Y
CYPRUS           Y         N              Police                                              Y              N
CZECH            Y         N              Police                                              Y              Y
REPUBLIC
DENMARK          Y         Y              Police                               Y              Y              Y
FINLAND
FRANCE           Y         Y                                       Y           Y              Y              Y
GERMANY          Y         Y       Federal criminal law            Y           Y              Y              Y
                                   enforcement authority
GREECE           Y         N              Police                   Y           N              Y              Y
HUNGARY          Y         Y        Ministry of Interior                                      Y              Y
IRELAND          N        N/A                                     N/A                        N/A            N/A
ITALY            Y         Y                                       Y           Y              Y              Y
LUXEMBOURG       Y         Y              Police                   N                          Y              Y
NETHERLANDS      Y         N                                       Y           Y              N              Y
POLAND           Y         N              Police                   Y           Y              Y              Y
PORTUGAL         N        N/A                                     N/A          N             N/A            N/A
SPAIN            N        N/A                                     N/A          N             N/A            N/A
SWEDEN           Y         N                                       Y           Y              Y              Y
UK               Y         N              Police                   Y           Y              Y              Y




                                                           72
                                         Table 2

                              Databases for prosecutions


               Database for       Central?            Host          Criminal        Basis in
Country       prosecutions?                                      investigations   law/statute?
                                                                     only?
AUSTRIA            Y                 Y                Public           Y               Y
                                                   Prosecution
BELGIUM            N                N/A               Public          N/A             N/A
                                                   Prosecution
BULGARIA           N                N/A               Public          N/A             N/A
                                                   Prosecution
CYPRUS             N                N/A                               N/A             N/A
CZECH              N                N/A               Public          N/A             N/A
REPUBLIC                                           Prosecution
DENMARK            Y                 Y               Central           Y               Y
                                                      Crime
                                                    Register
FINLAND
                   Y                 Y                Public           Y               Y
FRANCE                                             Prosecution

GERMANY            Y                 Y               Central           Y               Y
                                                      Crime
                                                    Register
GREECE             N                N/A               Public          N/A             N/A
                                                   Prosecution
HUNGARY            Y                                                   Y               Y
IRELAND            Y                 Y                Public           Y               N
                                                   Prosecution
ITALY              Y                 Y               Central           Y               Y
                                                      Crime
                                                    Register
LUXEMBOURG         N                N/A               Public          N/A             N/A
                                                   Prosecution
NETHERLANDS        Y                 Y                Public           N               Y
                                                   Prosecution
POLAND             N                N/A                               N/A             N/A
PORTUGAL           N                N/A                               N/A             N/A
SPAIN              N                N/A                               N/A             N/A
SWEDEN             Y                 Y                                 Y               Y
UK                 N                N/A                               N/A             N/A




                                             73
                                             Table 3

                              Access to databases for investigations



              Investigating     Other             Other        Individuals       EU         International
Country        authorities    authorities      authorities                   authorities     authorities
                               directly         indirectly
AUSTRIA            Y              N                 Y              Y
BELGIUM            Y              Y                 Y                         Europol         Y (limited)
                                                                             Schengen
BULGARIA           Y              Y                 Y
CYPRUS             Y              N                 Y                         Europol         Y (limited)
CZECH              Y              N                 N
REPUBLIC
DENMARK            Y              Y                 Y              Y          Europol      Y (when justified)

FINLAND
                   Y              Y                 Y              Y             Y                 Y
FRANCE

GERMANY            Y              Y                 N                            Y                 Y
GREECE             Y              Y                 Y              Y          Europol              Y
                                                                             Schengen
HUNGARY            Y              Y                 Y                            Y                 Y
IRELAND            Y              N                 N              N            N                  N
ITALY              Y              Y                 Y                            Y
LUXEMBOURG         Y              N                 N                           N                  N
NETHERLANDS        Y              Y                 N                           N                  N

POLAND             Y              Y                  Y                          N                  Y
PORTUGAL           Y              N                  Y                          N                  N
SPAIN             N/A            N/A                N/A           N/A          N/A                N/A
SWEDEN             Y              N                  Y                           Y                 Y
UK                 Y              Y                  Y             Y          Europol              Y
                                                                             Schengen




                                               74
                                          Table 4

                        Access to databases for prosecutions



Country       Prosecution     Courts              Other      Individual   EU    International
                                                 officials
AUSTRIA           Y         Y (limited)      Y (selected)        Y
BELGIUM          N/A           N/A                 N/A          N/A       N/A       N/A
BULGARIA         N/A           N/A                 N/A          N/A       N/A       N/A
CYPRUS           N/A           N/A                 N/A          N/A       N/A       N/A
CZECH             Y             Y                   Y
REPUBLIC
DENMARK          N/A           N/A                 N/A          N/A       N/A       N/A
FINLAND
                  Y             Y                   Y                     Y          Y
FRANCE


GERMANY           Y             Y                   Y                     Y          Y
GREECE           N/A           N/A                 N/A          N/A       N/A       N/A
HUNGARY           Y             Y                   Y                     Y          Y
IRELAND           Y             N                   N            N        N          N
ITALY             Y                                 Y                     Y          N
LUXEMBOURG       N/A           N/A                 N/A          N/A       N/A       N/A
NETHERLANDS       Y                                 N                     N          N
POLAND           N/A           N/A                 N/A          N/A       N/A       N/A
PORTUGAL         N/A           N/A                 N/A          N/A       N/A       N/A
SPAIN            N/A           N/A                 N/A          N/A       N/A       N/A
SWEDEN            Y             Y                   Y                     Y          Y
UK                Y             Y                   Y            Y        Y          Y




                                            75
                                             Table 5

                     Support for further facilitation of data exchange
                          for investigations and prosecutions




Country       Need for     EU database           Linking                    Requirements       Particular
               further                           national                                      problems
              measure                           databases
AUSTRIA           Y               Y                  Y               Data protection              N
                          for prosecutions          for           To include data on
                                              investigations       structures of criminal
                                                                       organisations

BELGIUM          Y               Y                  N                       Data protection        N

BULGARIA         Y               Y                  N                   Data protection           N
                                                                     Inclusion of dug and
                                                                     peoples trafficking and
                                                                      transnational crimes
CYPRUS           Y               Y                  N           For transnational crime           N
                                                                              only
                                                                  Hosted by Eurojust
CZECH            Y               Y                  N           To include victims of crime        N
REPUBLIC

DENMARK          N               N                  N                            N/A              N/A

                 Y               Y                  N               
                                                                   Protection of civil             N
FRANCE                                                                 liberties
                                                                Supervised by judicial
                                                                      authorities
GERMANY          Y               N                  Y             Data protection                 N
                                                                Eurojust to administer
GREECE           Y               N                  Y             Data protection                 N
                                                                Supervision by judicial
                                                                      authorities

HUNGARY          Y               N                  Y                   Hosted by Europol          N

IRELAND          Y           indifferent        indifferent                 Data protection    Erasure
                                                                                               unknown

ITALY            Y               N                  Y              Principles of:                  N
                                                                        
                                                                     lawfulness of
                                                                       processing
                                                                  Proportionality
                                                                Length of maintenance
                                                                  Transparency
                                                                   Independent
                                                                      supervision
                                                                 Security measures

LUXEMBOURG       Y               Y                  N                       Data protection        N

NETHERLANDS      Y           indifferent        indifferent                 Data protection    Need for a


                                               76
                                                                                  defined
                                                                                 legitimate
                                                                                  purpose
POLAND     Y           Y                Y                  Data protection            N
               for prosecutions        for
                                  investigations
PORTUGAL   Y          Y                 N            In the form of a network       N
                                                               registry
                                                    Supervised by judicial
                                                              authorities
SPAIN      Y           Y                 Y           Two stage approach             N
                  in the end        in the first     Judicial supervision
                                     instance

SWEDEN     Y          Y                  N                 Data protection           N

UK         Y          Y                  N                 As a medium step:        N
                                                               harmonised
                                                                recording
                                                            Notification




                                   77
                                         Table 6

              Can data from the database for investigations and prosecutions
                     be used as evidence before the national courts?




Country           Yes        No        Maybe                              Why?

                                         X         Evidence must not be obtained via methods forbidden
AUSTRIA                                                            under Austrian law
BELGIUM                       X
BULGARIA           X
CYPRUS             X
CZECH              X
REPUBLIC
DENMARK            X
FRANCE                        X                                   Only as soft evidence
GERMANY            X                                 Print-outs from the database can be considered a
                                                                        document
GREECE             X
HUNGARY                       X                                   Principle of immediacy
IRELAND                       X                                          Hearsay
ITALY                                    X                   Letters rogatory are admissible
LUXEMBOURG                    X
NETHERLANDS                   X                                Possible if introduced by law
POLAND                        X
PORTUGAL           X
SPAIN              X
SWEDEN             X
UK                            X                                          Hearsay




                                             78
                                          Table 7

                     What crimes can be included in the database?




Country       Eurojust       All crimes      Specific groups

AUSTRIA                                            Serious crimes
                                                   with a transnational dimension
BELGIUM                          X
BULGARIA                                     Serious crimes
CYPRUS           X
CZECH                            X
REPUBLIC
DENMARK          X
FRANCE           X
GERMANY                                            Transnational
                                                   Serious
                                                   Organised
GREECE           X
HUNGARY          X
IRELAND          X                           Porportionality to be respected
ITALY                                        Crimes of alarming social relevance
LUXEMBOURG                       X
NETHERLANDS      X
POLAND                           X
PORTUGAL                         X
SPAIN            X
SWEDEN                                       Crimes incurring penalties of more than one year
UK                               X




                                            79
Recommendations


1.    It is recommended that the Commission utilises their legislative initiative in order to
      submit to Council a draft Framework Decision on an archive for investigations and
      prosecutions
2.    It is recommended that the Commission proceeds with the establishment of this
      archive in a two stage approach, namely initially with the introduction of a network
      of national archives for investigations and prosecutions, and ultimately with the
      establishment of a centralised EU database for investigations and prosecutions
3.    It is recommended that the network and the database include both investigations and
      prosecutions
4.    The network and EU database may incorporated archives covering all regions of
      each member state
5.    The network and database must be automated
6.    The network and database must be limited to criminal cases
7.    Access to the network and database can be awarded to the investigating and
      prosecuting authorities of the member states
8.    Direct access may be awarded to relevant EU and national authorities
9.    Indirect access must be awarded to the subject
10.   Graduated indirect access may be awarded to other national authorities
11.   Entry of data to the network and database must take place as early in the process as
      deemed possible
12.   Erasure of data to the network must take place upon erasure from the national
      archives
13.   Erasure of data from the EU database may take place upon initiative of the national
      authority that initiated the investigation or prosecution and after notification of the
      other national authorities with direct access
14.   The aim of the network and the database is multiple and refers to assistance with the
      integration, coordination and subsequent efficiency of the many divisions of
      national forces involved in pre-trial criminal proceedings; identification of repeat
      offenders within the area of freedom, security and justice quickly and easily;
      provision of complete files for employment purposes; the prevention and
      suppression of transnational and organised crime; the preservation of public order



                                           80
      and security; the detection and prosecution of offenders in quick and efficient
      criminal proceedings
15.   It is recommended that the network and ultimately the database is supervised by the
      European Public Prosecutor’s Office as a quasi-judicial authority; until the latter is
      established, Eurojust may supervise
16.   It is recommended that the Commission encourages member states to use the
      evidence from the database or network in court as evidence
17.   The network may include all crimes included in the national archives to be linked
18.   It is recommended that only serious, transnational and organised crimes constitute
      the basis for action utilising the network and the database
19.   It is recommended that a code of practice be introduced for the benefit of national
      authorities
20.   The supervising authority may be given the task of judging appeals against
      investigations and prosecutions based on crimes which are not serious, transnational
      or organised
21.   The central authority for the network and ultimately the host for the database may
      be the European Public Prosecutor’s Office or Eurojust.




                                            81
                   AGIS PROJECT JAI/2003/AGIS/002
Feasibility study on the creation of a database on investigations and prosecutions




  Human Rights and Data Protection Report




                           By Prof. Patrick Birkinshaw


                        Institute of European Public Law
                                University of Hull
The project has examined the position in EU states relating to data bases existing at national
level for the purposes of criminal investigations and prosecutions. The study also examines
the feasibility of national systems being networked into a European wide data system or,
additionally, a data bank held by an EU institution for the purposes of criminal investigation
and prosecutions. The questions put to the national experts sought to acquire information on
the domestic laws relating to data retention, the extent of, and barriers to, data sharing, legal
barriers to data creation or retention, legal obstacles to domestic courts receiving evidence
from EU data banks and the position in relation to transfer of data across national boundaries
to or from EU institutions. Information was also sought on other areas as will be explained
below. The importance of this subject is testified by the national reports submitted to this
project. The Council of Europe has also recently produced The Interoperability of Information
Systems in the Justice Sector Rec (2003) 14.


It has to be said first of all that the reports are variable in their detail and helpfulness. This is
not because of any inherent lack of quality. It refers to several points. In the first place it is
clear that there is a considerable difference between the respective positions and
responsibilities of investigating and prosecuting authorities in EU states. It is only
comparatively recently that the investigating and prosecuting authorities have been split in
their operational duties in England Wales. In other EU states eg France, an investigating
magistrate presides over an investigation. There is no similar practice in England and Wales
although Scotland might superficially be closer to French practice. The differences in
structural organisation will have profound implications for data holding and sharing.
Furthermore, some reports had little to offer because they did not deal with matters of current
national interest.


Furthermore, it is not always clear that reports are talking about the same subject in the same
way, or that they are referring to the same object. For instance, when discussing the use by
courts of evidence from data banks it is not clear whether their use is for official recognition
of official decisions, such as convictions, or whether data is being used to confirm a
suspicion. The latter use would not be acceptable in UK courts (see the UK report for a brief
overview of the relevant UK nations and their legal systems). Some reports stated that such
data would be acceptable but without indicating in what capacity. It is doubtful that evidence
of suspicion would be allowed into a criminal court as evidence supporting guilt in an
unrelated prosecution. The importance of this information is as a source of intelligence to


                                                 83
inform the actions of investigators of the game plan of organised and transnational criminals
or criminal networks. In some cases, mention is made of foreign evidence being used before
conviction; surely it should mean before sentencing? A further consideration is that some
intelligence material could well be evidence but is not admissible in judicial proceedings:
intercepts is an obvious example in the UK although other systems do allow use of
intercepted evidence in criminal trials.


However, there are subtleties in the use of data that one must be alive to. While evidence from
data banks would not be admissible in a court of law if it merely related to suspicion, the
Court of Appeal in England has allowed the Home Secretary to detain foreign nationals after
certification where he believes that they are a risk to national security and whom he
reasonably suspects of being an ‘international terrorist’ under the provisions of the Anti-
terrorism, Crime and Security Act 2001 and related legislation. This is detention on suspicion
and without trial. Derogation had been sought successfully from the UK Human Rights Act
and Article 5 ECHR for such detentions. The evidence on which such detentions were based
had come, allegedly, from torture in Guantanamo Bay. The Court of Appeal by majority ruled
that the Home Secretary, and the Special Immigration Appeals Commission upholding his
certificate, were entitled to base their suspicion on such evidence providing it had not been
extracted by a British official. At a trial, the evidence would in all likelihood be ruled out as
inadmissible on the grounds of s.78 Police and Criminal Evidence Act 1984. Confessions by
the accused extracted under torture have been inadmissible since the early seventeenth
century in England. But this was not a trial but an administrative detention and evidence or
information came from third parties. The dissenting judge in holding that the SIAC had
breached Article 6 ECHR expressed the view that the law of Europe would prohibit such
evidence; the common law would not! [A & Ors v Secretary of State [2004] EWCA Civ 1123
para 474]


I mention this because there is an increasing likelihood that evidence from foreign data banks
may contain such data on suspicion of association and may be used for executive detention
where there are perceived threats to national security. Would there be a guarantee that it
would be confined to criminal trials where national rules would not allow such evidence to be
admitted? Furthermore, in the reports it seems in some situations that policing databases
include those that in other systems would belong to security and intelligence services and
whose privacy/secrecy is strictly maintained. These are kept separate from police databases in


                                               84
the UK. However, such services in the UK are assuming more responsibilities that were
previously the responsibility of the police in relation to organised and international crime and
not simply terrorism. The Serious Organised Crime Agency is to be established as a national
police agency by legislation presented to the House of Commons in November 2004. Its first
chairman is to be Sir Stephen Lander, former Director General of MI5 the UK secret service.
In a radio interview on BBC Radio Today (7 December 2004) he stated that the UK economy
lost £40 billion (sic) per year because of the activities of organised crime. We are likely to see
an increasing interrelationship between the police and security services. Additionally, while in
the UK, there is a fairly narrow view adopted on the police function, in other systems it
expressly includes Customs and Excise, financial affairs, immigration giving a meaning
similar to police administrative in French public law.


Existence of Databases and Data Protection Laws


Reports stated that there were laws in existence for the retention of personal data in every
national system. This included those who were newcomers to the EU such as Poland, Cyprus
and Czech Republic. In some systems, laws have to exist to allow retention of data for
criminal or criminal conviction purposes -- such a case is clearly spelt out by Denmark,
Luxembourg, Hungary and by Spain; in others laws regulate the holding of such data under
the terms of EC Directive and some laws pre-date the date for the implementation of the
Directive: France for instance although its law was modified in 2004 and this was subject to a
challenge before the Conseil Constitutionnel. In some cases, laws must authorise the holding
of data for specific purposes eg criminal investigation. In other situations, there is no specific
provision for holding data for identifiable purposes but their use is regulated by law and the
law may place restrictions on the rights of data subjects to access their personal data where
national security (virtually a complete exemption in the UK) is involved or criminal law or
legal enforcement.


The Questions


1)     Criminal investigation databases are a common feature but whether they exist at
regional or local level is highly variable according to the reports. In some cases there was no
distinction made between investigatory and prosecution files. Sweden had both regional
databases and a national database, the latter coming into play when a person was suspected of


                                               85
a crime. Details were then entered on the national system. Poland cited this to be the case in
its report and it also identified a strong police control of investigatory and prosecuting
processes. Investigation databases exist locally in Greece where the situation was described as
‘fragmented’. In the UK, a database exists nationally in the form of the Police National
Computer. But each force (there are 43 local forces plus the National Criminal Intelligence
Service and other special forces) possesses its own database and practices vary considerably
as to when information is placed on the system and when it is erased. The PNC only contains
verifiable data or ‘hard’ data. Local databases contain a great deal more ‘soft’ data ie
suspicion and intelligence. Specific crimes will generate their own databases. In Belgium
there is a national police database for investigations according to the Belgian report. In some
systems there is evidence of administrative matters being placed on such databases. In the
UK, Customs and Excise and Inland Revenue would have their own systems and would also
work in cooperation with police forces. Poland made explicit distinction between an
‘operations file’ to gain intelligence and a prosecution file which was governed by strict rules
in order to produce evidence to be used in proceedings. The operational database is under the
police and not, as some wished for, under the Ministry of Interior. The Netherlands referred
both to temporary databases and to permanent ones. There was also a regional and national
databases which may have different formats. Ireland possesses a national police database
although it is ‘not specifically a database for investigations’. It covers a range of operational
police requirements.


2)     The position was equally mixed in relation to databases for prosecutions. These exist
but in different capacities although in the case of Spain it was stated that there were no ‘web
interconnections’ between prosecutors but rudimentary databases exist for regional
prosecutors. The existence of strong regionalism is an important factor here and also in
relation to investigating databases. It was mentioned especially in Belgium where in relation
to prosecution databases it was admitted that they are seriously lacking with no national
database. But this is also shared by other systems, in particular the English and Welsh. In
Germany there are 16 laws relating to criminal databases modelled on a framework federal
law. In Germany, there is a central database for prosecutions separate from police regional
databases. The database for prosecutions is kept by the same authority that maintains the
register on convictions and sentences. Some of this data in England is kept on the PNC. There
appeared to be considerable differences in the uses to which prosecution data was put. In
some cases, it appeared to be used for investigation purposes. Some responses referred


                                               86
explicitly to such databases being used for internal efficient managing of case flows:
Luxembourg. In Sweden the public prosecutor’s database had entries for wire-tapping and a
security ‘diary’ concerning state security. In others it was used simply to help effective case
management, very important in those countries where a limit is placed on the deadline for
bringing prosecutions such as Scotland. In others they appeared to be used simply for
recording convictions. In England and Wales there is no national database for prosecuting
authorities; those that exist are regional and the Crown Prosecution Service shares the same
districts as local police forces. In some cases the legal base for such a data bank is specific; in
other cases it is general ie a Data Protection Law in accordance with EC Directive 95/46/EC.
Ireland has a national database for prosecutors maintained by the DPP but it is not clear who
has access to this. It is hoped there will be operational by the end of 2004 a criminal case
tracking system will operate country wide. In Hungary, the Prosecutor General may authorise
the linking of the prosecution database with other databases for crime prevention and national
security.


3.     There is widespread evidence of access to ‘foreign’ data held by different national
authorities ie international swapping of data not direct access. Other national authorities with
rights of access to investigation and prosecution databases (though this must mean by request
and not via terminals) are invariably prosecution authorities and security or intelligence
services are mentioned in some cases. Greece mentioned that access may be made by a person
with a ‘legitimate interest’ which no doubt is subject to heavy qualification. Germany was
strict in its insistence that only criminal prosecuting and investigating authorities could have
access. Administrative bodies and regulators could not gain access for the prosecution of
‘regulatory offences’ as they would be known in the UK. Interestingly, Germany cited use of
courts of databases on sentencing to gain relevant comparators for sentencing! In all cases, the
transfer is within the terms of the above Directive and permissible it was felt. In other
instances, international transfer results from specific implementation of measures such as
Schengen, the Europol Convention, the Convention on Mutual Assistance in Criminal Matters
and the Eurojust. Others included the Customs Information System and EURODAC on
asylum requests and illegal immigration and the database of OLAF in relation to corruption in
the EU institutions. In some cases, conventions have been implemented into national systems
and so they form part of national law. In other cases they have not. Even in the latter, there is
widespread evidence of data sharing by national authorities even though the third pillar
competencies have not been internalised. This can lead to very difficult legal situations.


                                                87
Investigating magistrates in other jurisdictions may find it more useful to make an Interpol
request which will go to NCIS in the UK rather than make a request under the Mutual
Assistance Programme which will go to the Home Office. On the extra EU dimension,
transfer may be treaty based or simply the result of cooperation. With regard to the UK, the
UK report identifies some specific provisions in relation to the role of the Information
Commissioner who is the UK authority on data protection (this is not a devolved matter in the
UK).


       ‘The UK Crime [International Cooperation] Act 2003 section 81 amends the
       Data Protection Act 1998 and inserts a new section 54A giving the
       Commissioner powers to inspect data in the Europol, Customs and Schengen
       Information Systems and to inspect test and operate equipment used for the
       purpose of data processing…is this just from a terminal in UK or is he
       seriously supposed to be able to do this at the place where the server is based?
       And do we give reciprocal rights to similar officers in other member States?


   Comment by horizontal reporter: There are savings for data required for the purposes of
 safeguarding national security it should be noted. The Act makes it clear that the power
 applies to the UK supply of data. It allows the Information Commissioner to inspect without
 a warrant personal data recorded in the UK sections of the three European information
 systems that are covered.




       Sections 13-19 of the same Act deal with requests for evidence from
       abroad…but do not refer to databases or information from the same, yet the
       process of obtaining the evidence will clearly involve the use by the territorial
       authority in the UK of database interrogation in the first instance…
       Section 14 gives the territorial authority power to obtain evidence where a
       request is made, if the authority is satisfied:


       “a) that an offence under the law of the country in question has been
       committed or that there are reasonable grounds for suspecting that such an
       offence has been committed, and



                                                  88
     (b) that proceedings in respect of the offence have been instituted in that
     country or that an investigation into the offence is being carried on there.”
     This covers administrative proceedings as well as criminal proceedings.’


The question asks which authorities have access to databases. Most responses stated that
sharing was restricted either to police requests or to situations where a ‘need to know’ would
have to be established. In the UK data sharing has been a much discussed topic in recent
years. Much of the concern has centered on crime relating to children and arises from high
profile murders and abuse of children, specifically the Soham murders by Ian Huntley, which
involved the murder of two young girls, and the enquiry into the death of Victoria Climbie.
Belgium has also had to readjust data sharing as a result of the Dutroux case. As the UK and
Belgium reports indicate, there has been a national demand for more coherent and rational
approaches to linking up data. The UK report is helpful in indicating the official response to
problems of data sharing. In Scotland, there is a national intelligence police database whose
introduction was prompted by the Cullen inquiry into the shootings of numerous children at
Dunblane. A comprehensive use of police databases has been made by the Bichard inquiry
into the Soham incident (HC 653 (2003-04)). I quote from the UK report:


         ‘This raises a related issue, that of datasharing in the public sector. A
         debate has been initiated by the recommendations of the Cabinet Office
         Performance and Innovation Unit report “Privacy and Data Sharing: the
         Way Forward for Public Services”. Available at:
         http://www.number-10.gov.uk/su/privacy/pdf.htm


         The response from Liberty is available at: http://www.liberty-human-
         rights.org.uk/resources/policy-papers/policy-papers-2002/pdf-
         documents/jul-2002-privacy-data-sharing.pdf
         And the Department for Constitutional Affairs has provided an update as
         of November 2003 at:
         http://www.dca.gov.uk/majrep/datasharing/update.htm
         The intention is to bring forward legislation on data sharing. The working
         group has rejected the idea of a general power to share data with consent
         and is examining the idea of legislation to create a general power to set up
         data sharing gateways via secondary legislation.


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         The Home Office has produced a model protocol for data-sharing available
         at:
         http://www.crimereduction.gov.uk/infosharing21-00.htm
         and a Government data standards catalogue is available at:
         http://www.govtalk.gov.uk/schemasstandards/eservices.asp
         There is a standard for information security management: ISO
         17799/BS7799’


There are several statutes that specifically allow data to be shared between authorities dealing
with childcare: most recently the Children Act 2004. The Cabinet Office and Department for
Constitutional Affairs have identified the difficulty in a British framework as one of
administrative law: do you as an authority possess general, specific express, or implied
powers to share data? The Data Protection Act itself provides wide powers of data sharing
(see ‘processing’ in s.1 DPA and Schedules 2 and 3 ibid). Some statutes give specific
authorisation and there may be implied powers. In all cases, the limits of the Data Protection
Act itself, the extent of the Human Rights Act 1998 (which incorporates the ECHR into UK
laws) the extent of the law of confidentiality and the common law of fairness will all have to
be considered. Needless to say this is a very difficult area, not simply in the UK but in other
regimes as well. In Ireland investigating authorities had their own databases without any
specific provision allowing datasharing although presumably requests are made.


4.     The evidence varied widely once again as to when information was introduced on
either database. In some systems, information is introduced when a crime is reported -- Italy.
It is not so clear whether this also applies to an investigation database. The Bichard inquiry
into the use of data by police forces in England found that whereas for national databases
there was a clear point of entry, for local systems it varied. On the PNC entry was either at
charge stage or caution. In the Soham case, vital information about a suspect had been
overlooked or erased so the murderer was appointed to a position with children after an
inadequate vetting process. The general approach seems to be that police databases will in
local situations have entries on various items of suspicious behaviour; and they will keep
information after an acquittal if it falls into clearly defined categories involving children. The
PNA as stated above will contain hard data. In prosecution cases, the use of such data for
case management usually means information will be placed on file at the time of charge.
Several reports then spoke of the evidence being handed to the prosecutor by the police in


                                               90
paper form. Spain spoke of information being introduced at the investigation level without
further specification. Reports invariably spoke of entry at time of notification to the police
and when the investigation commences -- Sweden, Italy and Ireland (and Poland seemingly) -
- or when the case dossier is opened. The latter two countries also stated that data was entered
on eg the DPP or Prosecutor’s files when notified to the office. Germany reported that it was
entered on a police file when the investigation started but only on a prosecution file when the
records were handed to the prosecutor by the police. Denmark spoke of investigations being
entered at various stages but data would only be entered on a prosecutor’s database when an
individual was charged with a criminal offence. Greece also distinguished between time of
transfer to prosecutor for data to be entered as distinct from the ‘start’ of investigation for the
investigator’s file but arrest was also mentioned for the latter. Belgium indicated that the
collection of information was ongoing and covered information on ‘suspicion’ as well as
other items. Hungary reported on data being introduced ‘within three days’ of the launch of
the investigation or judicial decision.


5.     Evidence from the reports differed widely on this aspect viz retention and erasure.
There seemed to be widespread practice of retaining some data on convictions until the age
of eighty or seventy, or death. Retaining data until the age of 100 years was also referred to
where the victim was a child or young person. Some systems make specific provision for
‘spent convictions’ so that evidence of these will lapse after a fixed period. In Cyprus,
evidence of conviction seems to disappear on conviction except in specific categories of
cases where sentence is more than two years! However, several responses stated that more
evidence of convictions is being retained where individuals have committed offences relating
to children or vulnerable persons, or violent crimes and this will have to be disclosed to
prospective employers under the terms of eg, the Police Act 1997 (England and Wales) and
the Criminal Records Bureau.


6.     As mentioned above, some legal authorisations give specific authorisation for
investigating or prosecuting databases, indeed national laws may require this. Other systems
only have a law regulating data holding within the framework of the EC Directive. Where
those systems are limited by specific provisions, there are usually strict limits on who may
have access. In some systems data sharing may be more widely practised so that there will be
‘joined up’ approaches involving wider sharing obligations. This is likely to be true of closer
links between police, health, education and social services authorities. One question raised by


                                                91
this, but not specifically referred to in the returns, concerns the implications of such
developments in some systems and the access ‘rights’ they will confer to extra jurisdictional
authorities. So for instance will national access by social services authorities to police
information accord similar rights to international requests? Several reports indicated
problems with sharing that was perceived to be too wide; in England there were misgivings
about second party disclosure of Europol data. The strict approach adopted to sharing with
national authorities in some jurisdictions was noted above.


7.     Virtually all reports specified that cooperation in such matters was widespread,
especially via Europol and via national representatives/members on Eurojust. Some said such
cooperation would have to be supported by a Treaty. For EU members such a treaty exists,
although some states have implemented its provisions; others have not. The practice of such
sharing seems widespread and understandably so. As mentioned above, it raises some very
difficult legal questions. National Data Protection Authorities will wish to have oversight
under the terms of national legislation and international agreements. The UK Information
Commissioner has published guidance on Europol, Eurojust and other EU bodies (European
Law Enforcement Agencies, IC)


8.     Once again, the position was varied. The position in the UK was mentioned above. It
is unclear and imprecise in the UK and the general thrust seems to be in the direction of a
general power of data sharing for the protection of specific interests. There is every chance
that such a law will be challenged under the Human Rights Act 1998 for unjustifiably
permitting invasion of personal privacy. In Germany it seems the law only allows prosecutors
to have access to data on criminal law enforcement. Other systems suggest a ‘need to know’
basis. Some systems make provision for a ‘licence’ for sharing to be given by the Data
Protection Commissioner (Cyprus). In Belgium, only four authorities have access to criminal
intelligence and access may be delayed where this could interfere with a criminal
investigation.


9.     There are inevitably laws that regulate the holding or creation of databases for specific
purposes. It would be anomalous were such domestic provisions to prevent the establishment
of such databases given that such creation is implied by EC Directive 95/46/EC. Once again,
however, the position is complicated by different legal traditions in each member state. In
Italy the constitutional protection of privacy was mentioned although laws exist to allow


                                              92
retention of data. The position of the Data Protection Commissioner (or equivalent) is
important although the EU databases in this report do not have to be reported to the DPC for
approval, although they may have rights of inspection. Ireland also guarantees constitutional
protection for privacy as does Germany so existing laws would have to conform with
constitutional protection. The same is true of Hungary. Even within constitutional traditions
placing a high premium on protection of human rights, there are disparities in whether a
specific law needs to authorise creation of databases or whether laws merely regulate that
holding, processing etc of personal data. In terms of Schengen information, a Parliamentary
committee exists with oversight responsibilities in this area in Italy and its remit was
extended to cover Europol. General principles of law were referred to such as proportionality
as well as transparency. In some systems, internal regulations for holding criminal data are
not published - Poland was one such example; this would probably be the ground for a
successful challenge in other countries and also in the Court of Human Rights in Strasbourg.
The EU Constitution will be relevant when ratified and effective both in terms of the Charter
of Human Rights in Part II and in terms of the EU’s accession to the ECHR. The areas of our
present project fall within the competence of the EU Constitution and within the jurisdiction
of the ECJ and national courts. National Parliaments have investigated aspects of this subject
including the House of Lords Select Committee on the EU (Eurojust Twenty-third Report
(2003-04)). It only remains to be stated that there can be profound constitutional implications
in implementing laws in this area: in France the loi of 15 juillet 2004 modified the procedures
for personal records and the law of 1978 but the 2004 loi had to await approval by the
Conseil Constitutionnel.


In the UK, it is not unusual for courts to show considerable leeway to national and public
security and to allow authorities to engage in practices which might not be tolerated in other
countries. The point has been made that Britain is stable politically and has been for
centuries. Political power is less likely to be abused, so it is felt, and courts are more
indulgent in allowing invasions into human rights involving Article 8 and Article 10 ECHR.
In R (S) v Chief Constable South Yorkshire [2004] UKHL 39, the House of Lords (our
supreme court) ruled that retention of finger prints, DNA non intimate samples and DNA
profiles under s.64(1A) Police and Criminal Evidence Act 1984 from parties who were not
convicted in a court proceeding was not a contravention of Article 8 rights. Retention of such
samples after acquittal ‘save in exceptional circumstances’ did not engage Article 8(1) and
whether Article 8(1) was engaged was a matter which should receive uniform interpretation


                                              93
throughout EU member states ‘unaffected by different cultural traditions’ the court ruled.
Rigorous standards were in place to safeguard against abuse and the retention of these
samples did not have an impact on the private lives of individuals. The policy was lawful. Its
target was the prevention of crime, the investigation of offences, the facilitation of
prosecutions, and the speedy exculpation of the innocent and correction of miscarriages of
justice. See Lord Steyn at para 1 on the benefits of investigatory authorities using up to date
technology.


10.   As we have seen, different systems have different requirements vis a vis investigatory
and prosecutorial databases. Data protection laws require safeguards in the holding, retention
and processing of such measures. But in compliance with EC Directive 95/46/EC there will
be exemptions from subject information provisions and the non-disclosure provisions and
possibly other aspects of the data protection regime. The terms of the exemption may be
differently drafted within different regimes. So ‘public interest’ would be too broad for the
Czech regime and specific exemptions would have to be in place. The same is likely to be
true for Germany. In Sweden a special secrecy law attaches to such databases (sekretesslagen
1980) so there is no need to rely upon broad exemptions such as public interest. In Poland,
laws on secrecy seemed to protect data. The answer from Spain appeared to confuse the
question.


11.   Many of the reports appear enthusiastic about the benefits of linking national
databases. Poland was cautious pointing out the difficulties of incompatible software and
sensitivities concerning police security. The UK report also had similar misgivings based on
the real difficulties that incompatible systems had presented in the past and present even
within a national context. There was also unease about the use that others may make of
information and how widely it might be disclosed. In terms of an EU wide data base there
was not so much enthusiasm. Several such databases have been cited already as seen in
paragraph 3. Sweden thought a common data base would cause difficulties because of
different legal systems. The Netherlands was not enthusiastic on either front stating that the
real level of interest was in sorting out sharing arrangements within the Netherlands.
Luxembourg felt that the Europol IS was entirely satisfactory for crimes within Europol’s
remit. This begs the question of whether additional crimes would be covered by a EU
database? If so what and why? Luxembourg did address the features that a common system
might possess and was very helpful in this regard. The UK report also addressed these


                                              94
questions. The interoperability of national systems that exist at present should be subjected to
detailed inquiry.


The Irish report stated:


     ‘In data protection terms linkage raises some concerns. Account must be taken
     of the fact that legal regimes differ across Europe in terms of definitions of
     offences, criminal procedure and rules of evidence. Secondly, given that there
     is no legal provision to allow for the erasure of a criminal record, Ireland
     would have a potentially far more extensive criminal database than countries
     that have a provision for spent convictions. A person in Ireland with a very
     minor criminal history might look more serious when compared with a person
     in another member state where they do have provision for eliminating spent
     convictions. A third concern would be in relation to accuracy and reliability.
     The likely accuracy level of each national database would need to be
     ascertained before allowing for automatic sharing.’ (p.12)


Germany


     None of the interviewees sees much sense in establishing an extra and
     centralized EU database: It is considered as doubling of efforts and
     expenditure while at the same time doubling the risk of fallacy, mistakes and
     even abuse. For example: they see the danger of one agency keeping a
     database being left out in favour of the superior one – leading to
     incompleteness of one of the databases. On the other hand the process of
     erasure would be much more complicated. They all profess for a linear and
     hierarchical system inside a member state with "head station" databases of the
     EU member states being inter-connected online.

     Furthermore the use of a central database in the EU is estimated to be limited
     as the data that could possible be obtained from it would be quite limited. As
     in the national investigation database a EU database could only include names
     of perpetrators, the date and time of perpetration and the legal definition. The
     prosecutors in charge would, within the legal framework of ‘International



                                              95
     Legal Assistance Law” (IRG - Gesetz über Internationale Rechtshilfe – see
     Annex) still have to inquire directly in order do find out details about the case.
     The problem is also that this kind of information is not considered to be
     admissible proof at the criminal court. Some experts think that the introduction
     of a EU database could reduce the need for inquiries in the framework of the
     IRG. But this ‘progress’ could just as well be achieved by networking the
     national investigation databases



Cyprus was enthusiastic about an EU database and Denmark felt that the experience of
Eurojust was very positive and should be extended. The Belgian experience of Eurojust was
also very positive and enthusiasm was shown for extending the practice into a database held
by an EU institution. In terms of the UK, the following extended quotation is very
informative. The horizontal reporter believes it best to leave the matter in the words of the
national reporter:



     If there were to be an EU judicial database, what would it contain? There is a
     feeling in the UK that a comparative law database is increasingly needed. If
     such a database included judicial decisions this would be especially useful
     given the move of the EU to framework decisions which produces 25 different
     national implementations which in turn produces a need to know what the
     differences are between the different implementations.          A database that
     provided that information would be extremely useful.


     Measure 12 asks how best the competent authorities in the European Union
     should be informed of investigations or prosecutions outstanding in respect of
     a given individual, covering, in particular, the categories of offence potentially
     concerned and the stage of proceedings at which the information process
     should start. It should also consider which of the following would be the best
     method: (a) to facilitate bilateral information exchanges; (b) to network
     national criminal records offices; or (c) to establish a genuine European central
     criminal records office.




                                               96
The grammar of the measure is odd. Presumably, it means, how can the
competent authorities find out if a given individual has an investigation or
prosecution outstanding against them? Or does it imply that a passport or
identity card check should immediately and automatically throw up this
information as a result of a barcode scan that would link into a closed and
secure network in some way.


Where an investigation of a serious crime is underway, surely the last thing
that an investigator would want is that a routine check of a person’s
documentation led to behaviour on the part of a uniformed police officer that
informed the person being investigated that such an investigation was under
way? Investigating organised crime involves surveillance and identifying an
individual’s contacts without alerting them to the fact that they are under
investigation.


If the intention is to apprehend an absconder, then that is a totally different
matter.


Is, however, what is required a system that throws up information on
investigations or prosecutions underway in other Member States against an
individual into whom an investigation has been opened or whose name has
come up in the course of an investigation? If so, the existing Sirene Bureaux is
the appropriate system upon which to build, but with an improvement in
accessibility for investigators at lower levels than the national as long as it has
provision to warn other investigators that access has been made, so that on-
going investigations are not compromised. There will need to be a body and a
procedure to deal with such conflicts as to which investigation and which
country has priority and this will almost certainly mean a role here for
Eurojust and for Europol.


Presumably what we are looking at is something that would benefit a hands-on
investigator. And the question that needs to be answered is what we would
need above and beyond the SIS (Schengen Information System). The Europol
database is a good one but it is not supplied with sufficient data and it can only


                                          97
be accessed via national units. The existing databases need a greater quantity
of data supplied and they need the possibility of wider access to improve the
possibilities for a hands-on investigator. Access is the fundamental problem,
as opposed to the architecture of the databases. The level at which access can
be made needs to be determined. As mentioned above, there also need to be
dispute resolution procedures in place. The greater the access, the more likely
it is that investigations will conflict, and the greater the likelihood of security
being breached.


The problem for a hands-on investigator is not so much access to data on
prosecutions and convictions, but to data on intelligence. For this reason a
European version of the UK National Intelligence model is required together
with a 5x5x5 test of reliability [top grading for reliability]. The legal problems
of empowering direct access to such data on the part of an investigator from
another country are the ones that need to be addressed, rather than data on
convictions. Often what is required is to know what an individual is suspected
of in order to know what to look for in their relations with other individuals
and organisations. The creation of a UK intelligence database needs to parallel
those similar databases that already exist in other member States. The
interviewees thought that the data protection issues here would be fairly
difficult to overcome.


The prevailing IT doctrine in the UK is, however, changing as the following
quote shows:
“I think today we are looking at a far more information centric architecture
which provides information as the entity which is common across the entire
environment, whereas in the days of NSPIS, it was a far more systems-based
structure where people had individual systems and they would talk to each
other, whereas now we are looking at far more commonality of information,
perhaps in central databases or centralised databases, where the information is
shared.” Mr. Webb of PITO Bichard Inquiry March 23rd 2004


The EU needs to go through the intermediate step of a common data recording
strategy. When all Member States record the same data in the same format, it


                                          98
     will become possible to move to central databases.


A comment here is that this may mean common practices as to when data are first stored and
erased.


     Most so-called transnational crime actually consists of regional groups trading
     with other regional groups. The Europol Joint Investigative Team with a case
     specific approach seems adequate enough and databases for individual
     investigations are more rational. Although there is now software available in
     the US, apparently, that can search databases much more quickly than has
     previously been possible, the principle of Occam’s razor remains an excellent
     one.


     An EU database will only be efficient if there is an obligation to notify which
     is then followed through. Irene, OLAF’s database has been plagued by a
     failure to notify of offences of fraud. Multiply that by 50 other major offences
     and there will be lots of gleaming machinery and very little data. Tupman and
     Tupman discussed the EU database strategy in 1999. The same shortcomings
     are still apparent:


     The following thoughts from the present author [UK reporter], written in 1999
     have been updated slightly to take account of changing names of
     organisations.

     “The Database Strategy
     In default of a European FBI, all attempts at cross-border police organisation
     since 1985 have centred on the creation of a networked computer database. A
     number of such cross-border databases and database-related communication
     systems have now been established as necessary prerequisites for risk-
     assessment together with offender and offence profiling. Their advantages are:

   offender profiling is vital for identifying individuals and organisations who
     commit relevant types of offence - fraud, smuggling, trade in people;

   offence profiling ensures that investigators are up-to-date with the modus


                                              99
      operandi of the various offences being committed and with the organisational
      structures required to commit them;

   risk-assessment enables proper targeting of scarce resources, both for
      prevention and successful investigation;

   information technology enables rapid exchange of relevant intelligence
      between investigative organisations across frontiers and removes bureaucratic
      obstacles with regard to provision of evidence. At the same time officers
      remain accountable to existing command structures.

      All cross-national database schemes have had problems achieving their
      original goals. The major problems have been:

   compatibility between EU Member States' software and hardware;
   judicial acceptability of on-screen communication in place of paper;
   data-protection and privacy;
   analytical software for profiling;
   consistency of reporting of offences by individual countries and organisations.

The report continues to make several further points of interest on linked up EU databases.

12.    Why is Question 12 restricted to European citizens? Should it not cover those resident
or present in EU member states? The German report made the following points:


      ‘Data on citizens [same query] under surveillance – usually probation
      (Bewährungshilfe, Sect. 56 StGB) or tight supervision (Führungsaufsicht, Sect.
      68 StGB) which are in Germany administered by the justice authorities - are to
      be kept in the BZR (national criminal record), accessible for all law
      enforcement agencies and authorities. As said before (11.) it is by all the
      interviewees considered preferable to link up these national databases as well.
      This, of course, presupposes that all the member states have similar data bases.

      The main concern shared by most interviewees and by myself is that the high
      standards of data protection as established and accepted in Germany would
      possibly be lowered by a central EU data base. It is foreseen that the creation
      of such a database would force the Member States to homogenize their



                                                 100
      pertaining laws, resulting in downgrading German rule of law standards
      according to the actual principle of the ‘minimum common denominator’. The
      almost universal vow is to keep national authority over databases and allow for
      certain divergences between Member States.

For the UK, the problem was not so much legal as political. Generally, were such powers to
exist, reports showed that they would wish for an independent judicial authority to exercise
supervision and to impose accountability according to clear criteria.



13.    It has already been pointed out that this question may have been misunderstood partly
because of its ambiguity but also because of the different legal procedural traditions. The
general thrust seems to be that in cases where information is being used as evidence to
establish the case of guilt, there would be serious restrictions on the use of evidence in
criminal trials. Where information constitutes hard data such as convictions then it may be
admissible as evidence but presumably only for purposes of sentencing, not for conviction
although issues of similar fact evidence may be relevant. Some interesting questions would be
raised in relation to evidence that was scientifically reliable for DNA or comparable purposes.
The distinction would be made between ‘hard fact’ and softer forms of evidence. Particular
problems might attend receipt of evidence in breach of hearsay rules and the requirement for
cross examination of witnesses. Most of the reports indicated that investigatory reports were
restricted to investigatory and criminal intelligence matters.



14.    The Czech report stated that if an international treaty extended the remit of existing
provisions that would be acceptable. Sweden wanted a crime to be punishable for at least one
year’s imprisonment for it to be included; in a UK setting this would include a good number
of relatively minor offences. Spain saw no reason to extend present arrangements. There was
a difference of opinion between authorities in Poland and the Netherlands was agnostic on the
question. Luxembourg said that an extension of crimes would justify a separate body to hold a
database and they would approve consideration to ‘serious criminal offences’. Italy suggested
crimes of ‘alarming social relevance’ or ‘severe forms of criminality’ such as organised
crime. Ireland thought that if such a database were feasible it would be restricted to Europol
crimes. Hungary agreed. Greece believed that it should be restricted to Art 4 of Eurojust’s
mandate. Germany was not in favour of a EU database and preferred linking up existing


                                               101
databases. Germany felt that beyond the ‘core’ serious crimes there were no benefits in
homogenising approaches to crime. Denmark felt that cross boundary crimes within Europol
and Eurojust’s remit would suffice. Belgium’s laws allow for transfer of criminal data outside
the framework of EU measures and a broad approach was preferred. The UK report stated that
one has to be clear what purpose the data is attempting to serve by asking what a successful
investigation of ‘organised crime’ requires. The UK Prime Minister has observed that in
relation to the European Public Prosecutor positioned within the EU draft constitution, the
remit covered ‘serious crimes affecting more than one member state as well as fraud against
the Community budget’. It was better to start with a limited number of crimes and to aim at
proactive investigation rather than reactive thinking, it was felt.

15.      The basic safeguards all seemed to turn around procedures built on national
mechanisms of a judicial or quasi judicial nature which exist in relation to domestic Data
Protection mechanisms which should be shadowed by an EU body to deal with data retention
by any EU institution. Clearly the provisions of EC law, ECHR law and domestic laws would
all be relevant in this respect.

16.      The UK report suggested the National Intelligence Criminal Service or Police
Intelligence and Technology Organisation for this task. Belgium also felt that the relevant
police authority should take the lead on this. The Danish Register of Crimes is under the
national police commissioner and this would be his responsibility. Germany and Cyprus,
opted for relevant Criminal law bodies and Greece seemed to prefer a judicial body taking
responsibility here although it acknowledged the obvious police interest. Hungary saw it as
the responsibility of the International Law Enforcement Centre and Ireland saw it as a police
matter although the Data Commissioner should be informed of rules relating to transfer. The
UK Information Commissioner would want more than simply to be informed. Direzione
Nazionale Antimafia was Italy’s preferred choice; it was the Prosecutor General in
Luxembourg, the National Police Agency in the Netherlands. In Poland a conflict between the
Ministry for the Interior and the police left the police in charge of data bases and this task
would be their responsibility. In the Czech Republic it would be shared between the Ministry
of the Interior, the Public Prosecutor’s Office and the relevant police authority. In Sweden,
there were three returns from different bodies but they all recommended the National Police
Board.

17.      In terms of access, there should be access to all authorities engaging in criminal
prosecution was a common theme in answers to this question although in the UK it was NCIS


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and possibly the Scottish Procurator via a police officer. Some included judicial authorities,
and in the case of Italy emphatically so; others rejected them in favour of the police alone --
Poland; Europol appointees -- Ireland. In Germany, the persons would be those entitled to
access under German domestic law and Greece made a similar reply in relation to its national
law. Belgium wanted the widest access possible for police, judicial and prosecuting
authorities. But in a British framework, courts would not want such information; police and
prosecutors would require it. Again, the different legal traditions in Europe lead to different
suggestions.

18.     Eurojust was the preferred agency for Sweden, Ireland, Belgium and Spain but the
Czech Republic did not think this possible. Poland felt Europol was the appropriate body to
fill such a role and Hungary and Cyprus agreed with this. The Netherlands saw the question
as idle. Luxembourg would see Eurojust as the appropriate body subject to adequate judicial
supervision and Greece would also wish to see adequate judicial protection. Germany was
unconvinced for the need for such a body but if pressed would opt for Eurojust. Italy also had
faith in Eurojust and added:

      ‘A fundamental tool for a better coordination of investigation could be the
      development of a computer data base such as for example the access to
      national crime data base or the realization of a general centralized data base
      for pending penal proceedings. This will have to be an area where Eurojust
      will operate. As far as the level of protection guaranteed to the citizens by
      Eurojust data formulation, and despite the explicit reference to the principles
      enforced by the Convention of the European Counsel of 21/8/1981, a
      particular critique has been [made] about the compatibility of art 18 par. 8 and
      art 20 par 2 of the decision of Eurojust and the Italian Code of Privacy (art
      145 ‘’ rights of art 7 may be enforced in front of the Judicial authority with or
      without recourse to the Garante’’ and art 152) …….. For the existence of such
      data base, whenever a citizen may feel that its rights might have been offended
      , there is the possibility for the offended citizen to recur to a judicial body.’

Denmark offered the following:

      If one or more of the current institutions would be the most suitable host for a
      database or if an all-together new institution should be created for this purpose
      is difficult to assess. Again it should be assessed on what level the information


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      is necessary. A central database on investigations should be hosted by the
      authority conducting investigations. It could therefore be suggested that the
      Europol, as the European law enforcement agency with a potential extended
      mandate to investigate in all cross border crimes, is the most suitable host for a
      database on investigation and persecutions. The Eurojust, which main purpose
      is to improve cooperation on investigation and prosecution among the member
      states and facilitate mutual legal assistance could therefore enhance its role in
      the prosecution process and host a database on decisions and final judgments.



The UK response was:

      ‘The Directorate General of Justice and Home Affairs within the Commission
      would have to create and build a new database. It would make sense to put it
      in Strasbourg alongside SIS2.       There are two major systems, the visa
      information system at Salzburg and SIS2 in Strasbourg. In Strasbourg is the
      backup for Salzburg and in Salzburg is the backup for Strasbourg, if you
      follow me, the online site for each of these databases is in a different place to
      the backup site.


      It would be a good idea to have a system that could capture criminal
      convictions based in either Strasbourg or Salzburg. There is in place a new
      system       S   (for   secure)   TETRA        [TErrestrial   Trunked     RAdio]
      http://www.tetramou.com/ . This is a network that will enable the exchange of
      information and may be able to search SIS2 and any criminal convictions
      database.’


The English response is that we need integration, harmonisation and consolidation of existing
IT systems, NOT yet another one. STETRA is the most sensible and rational next step
forward.


19.    There was generally agreement that such a database could have desirable effects in the
war against crime. Spain’s reply was difficult to align to the question. Hungary added it
would like to see existing EU weapons made more effective. Belgium was a little more



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guarded anticipating the next question posed by Greece. Greece saw clear advantages but
wanted to see greater harmonisation in criminal laws and procedures. Germany saw no
advantages in a EU database over linking national databases. The UK which has not signed up
to Schengen expressed the following:

     ‘the feeling among investigators is that any more information would be useful.
     Ideally, a proper evaluation needs to be done as to what a separate database
     could achieve that improved cross-border access to national databases
     couldn’t.

     The danger is that such a database would be used against immigration and
     political dissidents rather than criminals. The profiling and analytical software
     isn’t there yet and the storage capacity doesn’t yet exist. Cross-border
     networking between police officers and prosecutors together with Joint
     Investigative Teams is more likely to work at this stage of European
     Development.

     A sex offenders database is more likely to be successful in the first instance
     and likely to be accepted as legitimate by the European public at large.’

20-23 There were similar points made in relation to the political opposition to such a
database, the public perception of crime, and reduction of police powers all of which are
instructive. In Spain, terrorism understandably had the highest rating in citizen’s list of fears
whereas in Germany fear of unemployment ranked more highly than crime as did national
security. The general view was that there would be political opposition from the left, human
rights groups and from right of centre anti European parties. The EU constitution and the
European Arrest Warrant have been attacked in the British press as an assault on Magna Carta
and Habeas Corpus! A great deal of advantage has been taken of people’s ignorance and
fears. In relation to crime there were fears about security, and the occasion of any mass
attacks will have a crucial impact on such a fear. But in the UK, the greater current fear is of
anti social binge drinking and drunkenness rather than organised crime as such. Crimes
against children are high profile (this is true in Belgium and elsewhere) and citizens are
prepared for drastic measures to be taken against perpetrators of such crimes: removing
confidentiality, data sharing and so on and the trial of the accused (and convicted) male who
murdered Caroline Dickenson in France led to calls for a Euro wide database of sex offenders.
People trafficking offences from East Europe and elsewhere are beginning to attract high


                                              105
profile attention. The general impression from virtually all the reports is that police powers
had increased -- this is certainly the case in the UK -- although there is generally firm political
support for such increases in police powers. Rehabilitation (and I share the scepticism of the
national report which failed to see the link in this question) is widely encouraged but very
difficult to assess in terms of efficacy. It is also related to such developments as restorative
justice. Less reliance on custodial sentences could increase the need for more efficient and
larger databases on criminals allowed into the community. The link between security and
national identity cards is made very forcefully by Blair’s government. The Polish report
provide some statistics on perceptions of crime in Poland that may be helpful. The general
tone here is impressionistic.

Any other comments. I found the UK observations here interesting but leave their utility to
others to decide:


     Alternative routes forward:


     A system of separate databases for separate purposes could be set up in order
     to satisfy the legal requirement that data placed on a database can only be
     accessed for the purpose the data was originally entered. The legal basis here
     needs clarifying but several documents from the European Parliament suggest
     that this is an important consideration in many continental European
     jurisdictions. This would have the advantage of satisfying human rights
     concerns but the disadvantage that it would be expensive and would hamper
     cross-border investigation. On the other hand if any other system means that
     evidence so obtained cannot be presented in court, then economic cost cannot
     be used as an argument to outweigh human rights costs and the ultimate
     benefit of successful prosecution.


     The European Commission proposal to change the purpose of the Schengen
     Information System from a control system i.e. a system that exists primarily to
     prevent the admission of “undesirables” to the European Union to a more
     investigative system is one that is inevitably going to succeed given the growth
     in the use of the database for enquiries about wanted persons, evidence and
     objects. The problem that was not anticipated when SIS was set up was that



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there might be individuals, such as football hooligans who it might be
necessary to prevent crossing internal frontiers at specific times, or such as
paedophiles, whose movements need to be monitored. The English view that
the author of this report has encountered seems to accord with that of the
Commission, that the Schengen Information System should be developed for
investigative purposes.


There is not such support for a European Criminal Records database and more
support for the idea of a procedure by which individual Member States’
criminal records databases can be accessed via the SIS. Whether the attitude
would be different if it were to turn out that not all member states have
Criminal records databases at national level would need to be explored, but
support is more likely for the creation of individual national databases that an
all-European one at this point. The UK is strongly in favour of taking a Third
Pillar approach to Criminal Justice matters, while accepting that immigration
requires a centralised approach.


A prosecution database at European level is equally unlikely to find favour,
although access to individual member States databases via SIS would be
acceptable. The Home Secretary has proposed a European DNA database, but
whether Parliament, particularly the House of Lords would in practice pass
such legislation will be a question for future empirical verification. [Comment:
This would depend on which House a bill was introduced into]


A database for investigating terrorism and organised crime, where a definition
could be agreed for entry purposes is a possible step, but a database for
intelligence, in the sense of investigative intelligence, not security services
information will require a European version of the UK National Intelligence
Model.


Interface between databases is the favoured UK approach, preferably via direct
access terminals with such access recorded and monitored. A series of bureaux
on the lines of Sirene would be seen as a retrograde step. A further possibility
might be that Member States databases develop sections that would be all-


                                        107
European access, with judicial supervision of the rules for data entry and
occasional regular inspection by an appropriate data protection officer. Access
level is probably the issue that most interests UK investigators.




                                         108
Recommendations


        Efforts should be made to coordinate the criteria and details under which data are
         retained for investigative and prosecutorial duties covering such items as purposes
         and objectives, timing, access and sharing rights. There should be coordination
         between local, regional and national databases. Methodology and technical questions
         will have to be addressed. In this regard, Art III-176(2) and (3) EU draft constitution
         should be examined, but the terms of Article III-173 must also be noted.
        All parties agreed on the need to share data more effectively in the effort to combat
         serious, organised and international crime. This cooperative spirit must be built
         upon.
        Data to which only criminal investigators should have access should be clearly
         defined. What arrangements need to be in place for social workers, administrators,
         teachers and those who deal with children?
        All data will be subject to Data Protection laws, subject to exemptions based on
         Directive 95/46 EC. This is the position currently for EU Member States.
        The question: why should a new database for an EU criminal agency or body need to
         be established? must be addressed. Can existing databases and agencies deal with
         any additional requirements if a need is made out? What classes of information
         should be covered that are not already subject to retention? What time limits should
         be placed on holding data and how would such decisions be reached? Again, Art III-
         176(2) and (3) of the EU draft constitution should be examined.
        Any databases that are built upon or created must be subject to effective EU and
         national supervision. This does not have to be by a judicial body initially but a
         judicial element should be in place at an appellate level. The EU constitution will
         have a considerable impact here in relation to data protection and human rights but
         even without the constitution such protection needs to be in place as a legal
         requirement. From a national perspective the Crime (International Cooperation) Act
         UK 2003 offers a useful example of the investigatory powers of the UK Information
         Commissioner.


If new databases are created, who from a national perspective should have access to them?
Should it be coordinated through a national agency? If so, which?



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                   AGIS PROJECT JAI/2003/AGIS/002
Feasibility study on the creation of a database on investigations and prosecutions




      Political Reviser’s Horizontal Report




                            Dr Constantin Stefanou
               Sir William Dale Centre for Legislative Studies
                     Institute of Advanced Legal Studies
                             University of London
1       Introduction


The aim of this Report is to examine the feasibility of the creation of a database for
investigations and prosecutions from a political point of view. The basic reasoning behind the
creation of such a database is relatively straight-forward. Mutual legal assistance mechanisms
within the EU need strengthening, especially with reference to the pre-trial procedures. The
introduction of EU criminal databases is offered as a solution to this real, existing and
difficult problem.


Broadly speaking, at the moment problems in mutual legal assistance at the EU level result
either in duplication of effort as a result of uncoordinated multiple prosecutions/investigations
in different jurisdictions or in failed investigations/prosecutions due to lack of evidence,
which is readily available in other jurisdictions but has not been sought by national
authorities. The practical problems limiting mutual legal assistance mechanisms are well
known and include non-ratification of EU and international instruments, dual criminality,
reciprocity, grounds for refusal, linguistic/translation issues, existence of different legal
processes in the Member States and problems emanating from the re bis in idem principle.
The traditional approach has been that basically the mechanisms for cooperation are in place
and that it is up to individual jurisdictions to make the best of them. The assumption was that
mutual legal assistance was hampered mainly because of the inefficiency of relevant national
authorities, either as a result of inadequate training or because they were not adequately
staffed. In other words, that the problems were purely practical and that given enough time
national authorities would wake up to the opportunities offered by the existing instruments
and start utilising them fully.


Given that the first attempts for mutual legal assistance date back to the beginning of the 20 th
century and that one-hundred years later, despite technological advances and advances in
management, little progress has been achieved it beggars belief that the long-held view that
inefficiencies exist because of “practical difficulties” is still accepted in a “matter of fact”
manner. Interviews with officials in Ministries of Justice or Interior Ministries around Europe
sooner or later result in anecdotal stories of legendary individuals who, because of their
linguistic skills or personal contacts or good understanding of foreign jurisprudence, were
able to get results and wrap-up a difficult mutual legal assistance case in five minutes with
one phone call when it usually took months of tedious and fruitless correspondence. These


                                              111
anecdotal stories usually end with the painful reminder that once these legendary individuals
left the service “practical difficulties” prevailed once again.


Of course, there is a reasonable excuse for the traditional relaxed approach to mutual legal
assistance. Until the introduction of the European single market, the Member States had many
and varied restrictions to transnational and transeuropean economic activity so the cases
where there was a need for mutual legal assistance were few and in many ways “exceptional”
cases and, therefore, were not seen as demanding special attention. Despite the fact that since
1958 the number of such “exceptional” cases increased steadily it was the creation of the
single market that resulted in an explosion of transeuropean economic activity and an
increased need for mutual legal assistance. Unfortunately, by then the established attitude to
mutual legal assistance had taken root and was difficult to change. In many ways it is the
growth of transeuropean crime, e.g. money laundering, that has forced national authorities to
re-examine existing practices and seek ways to modernise and improve their approach to
mutual legal assistance.


The implications emanating from the creation of such a database are quite important both in
practical and theoretical terms. The legal experts have concentrated on the practical
implications. From my point of view, the creation of such a database will have important
repercussions for the Europeanisation of the Third Pillar as well as the Europeanisation of
national administrations. Yet, the aim of this study is not to consider the creation of a database
for prosecutions and investigations as a way of by-passing the legal problems emanating from
the 25 different EU jurisdictions. Doing so, at this stage, is impossible and unwarranted. After
all the aim is not to destroy and level legal traditions in the Member States. Rather the aim
should be to create a database that can operate along the existing different jurisdictions.
Obviously there will be a need for some adjustments in some jurisdictions. However, we
should be very careful here. The database, useful it might be, should not be seen as the bed of
Procrustes against which jurisdictions will be measured on the altar of Europeanisation.


There are of course many such databases in most Member States. However, as the experts
have noted not all of them are in digital format, most of them are “stand-alone” (i.e. cross-
referencing is not done) and their contents are not available to all national enforcement
authorities, let alone enforcement authorities from other countries. The latter will change from
1 January 2008 when the exchange of information will be governed by the “principle of


                                                112
availability”,1 and enforcement officers in one Member State who need information to
perform their duties will be able to obtain information from law enforcement agencies in other
Member States, taking into account the ongoing investigation in that Member State.


2       Problem Identification


Assessing the political parameters of this feasibility study is not straight-forward because the
issues involved are not easy to define. What complicates things is the fact that legislation
varies from one Member State to another and that many Member States are in the process of
revising or updating their relevant statutes. In addition, while some Member States are well
versed in the use of many national databases other Member States are still getting to grips
with their national or local databases.


From a political point of view there are two main issues/questions:


   The first concerns the willingness of Member States’ national governments and EU
    citizens to accept in principle the desirability of cooperation in this field through the use of
    databases. In other words, in principle acceptance that the strengthening of mutual legal
    assistance mechanisms with specific reference to the pre-trial procedures through the
    creation and EU-wide use of a database for investigations and prosecutions is desirable
    and acceptable.
   The second, and more specific to this study, concerns the readiness of Member States’
    national governments and the EU citizens to accept the repercussions from the three main
    issues to consider in assessing the feasibility of a database on investigations and
    prosecutions:
        (i)     contents of the database;
        (ii)    access to the database; and
        (iii)   use of the database.


In order to examine these two fundamental questions it is necessary to look at the answers
given by national experts to specific questions.


1
  See Council of the European Union, “Draft Multinational Programme: The Hague Programme; strengthening
freedom, security and justice in the European Union”, 13302/2/04, REV 2, JAI 370, 22 October 2004, p.22.


                                                   113
3         The Experts’ Opinion


3.1       Political Opposition


TABLE 1
Do you foresee political opposition, in your country, to a move for the creation of a database
on investigations and prosecutions either by political parties or by human rights groups?

Austria                  Yes     By human rights groups and probably by the Social Democrats
                                 and Greens.
Belgium                  No      In recent years political parties are in favour of police and
                                 judicial cooperation through Eurojust. However, strict controls
                                 by the EP or the ECJ must be in place.
Bulgaria                 No      Just some concerns about the practical application of data
                                 exchanges because of the current lack of a legal framework.
Cyprus                   No      But issues concerning contents, access and use of data should be
                                 clarified.
Czech Republic           No      Not by the current governing coalition but opposition parties are
                                 likely to object.
Denmark                  No      If the limitations of article 8, paragraph 2 of the European
                                 Convention on Human Rights should be observed.
Finland
France                   No      The public and the political parties seem to be in favour of more
                                 action to combat crime.
Germany                  Yes     By human rights groups and by the Free Democratic Party, the
                                 Green Party and parts of the Social Democratic Party.
Greece                   No      But human rights groups and left wing parties would strongly
                                 oppose.
Hungary                  No      As long as human rights issues are respected
Ireland                  No      But issues related to security, transparency, content, access, use
                                 and confidentiality were respected.
Italy                    No      But human rights groups will protest.
Luxembourg               No      Little opposition is foreseen.
Netherlands              No      But there is concern about human rights issues which should be
                                 closely monitored.
Poland                   No      There is concern in Poland about international crime and most
                                 political parties would be in favour, provided there is respect for
                                 human rights.
Portugal                 No      Although opposition should be expected from leftwing parties
                                 and human rights groups
Spain                    No      Such is the concern is Spain about crime and terrorism that it is
                                 unlikely to meet serious opposition.
Sweden                   Yes     Very strong resistance from both political parties and human
                                 rights organisations.
UK                       Yes     Mainly because of the UK’s Euroscepticism and the tendency to
                                 oppose anything concerned with the EU. Biggest opposition
                                 from the Conservative Party.




                                              114
The degree of political opposition to EU proposals is always an important parameter. At a
general, macro-level it indicates how in touch the Commission is with the ideas and concerns
of the European citizens. It also gives an overview of the difficulty that the Member States’
governments will have in supporting this and similar issues in their Parliaments and their
electorates. At a more detailed, micro-level it speaks volumes about the actual proposal itself
and its possible acceptance by pressure groups that are in a position to influence public policy.


As can be seen in Table 1 serious political opposition is only foreseen in four Member States:
Austria, Germany, Sweden and the UK. The national experts from other Member States also
noted the possibility of token opposition from human rights groups but did not expect that
their opposition would be serious enough to block the proposal for the creation of the
database. From the four countries, where serious opposition is expected, the views of the
German national expert are worrying because any such database relies on the cooperation of
large Member States such as Germany. Moreover, the fact that the two smaller parties
(Greens and Free democrats) as well as parts of the governing Social Democratic Party may
oppose the creation of the database indicates that a special effort is needed to enlighten the
political parties and the pressure groups on the merits of the database.


The Austrian expert has also commented on the possible opposition by political parties on the
left of the political spectrum and human rights pressure groups and so has the Swedish expert.
Whether the Austrians and the Swedes will continue to object if the overwhelming majority of
the Member States want to proceed is a matter of speculation. The tendency in Council
negotiations is to follow the views of the majority unless there are serious difficulties
concerning the substance of a proposal, e.g. existing national legislation forbidding in
principle the implementation of a proposal. No such difficulties exist in Austria and Sweden
and, therefore, possible opposition by some parties and pressure groups is mainly based on
broad opposition to proposals which “open files” on citizens, who have not been convicted by
a Court. Such sensitivities are not unique to Austria and Sweden and despite the views of the
national experts I do not foresee serious problems. After all, Sweden and Austria have
accepted the creation of other databases and exchanges of information, e.g. “Proposal for a
Council Decision on the exchange of information and cooperation concerning terrorist
offences”2 and so did Germany and the UK. In this sense neither the Austrian nor the Swedish

2
 Communication from the Commission to the Council and the European Parliament on measures to be taken to
combat terrorism and other forms of serious crime, in particular to improve exchanges of information, “Proposal


                                                     115
nor the German governments will be asked to accept what in the past had been seen as
“unacceptable”. On the contrary, the creation of a database for prosecutions and investigations
must be seen as just another step on the harmonisation, if not Europeanisation, of mutual legal
assistance.


The case of the UK merits some attention because the UK is often perceived as the EU’s bête
noir because of its fondness for opt-outs and its Euroscepticism. However, appearances can be
deceptive. The interesting thing here is that the UK is actually very positive when it comes to
initiatives, such as the creation of databases which can assist with terrorism, organised crime
and mutual legal assistance. Irrespective of the motives behind the UK’s support for such
measures at the EU level the fact is that the UK is unlikely to oppose this particular proposal.
Despite the Euroscepticism which permeates the British press – as pointed out by the UK
national expert – the current position of the British government, especially if it wins this
year’s general election, will not affect an overall positive stance towards mutual legal
assistance in general and the creation of this database in particular.


3.2     Is crime perceived as a serious problem?


This is a rather rhetorical question in present day Europe since hardly a day goes by without
some sort of a report in one or more national newspapers about the dangers from increased
crime. Indeed, as Table 2 confirms, crime is considered as a “serious” problem in all countries
except Germany. If anything, the latter is more surprising given the recent headlines in
German tabloids.


What is often forgotten, though, is that the average citizen equates crime with violent crime.
In fact, it is violent crime that tends to attract the headlines and it is violent crime that people
tend to be most fearful about. For example, in Belgium, Denmark, France, Germany, Greece,
Italy, Sweden and the UK violent crime figures prominently in people’s concerns. In this
sense the problem with the proposed database is that it will mostly involve so called white
collar crime and might, therefore, not be seen as a measure that has a direct effect on crime –
and by extension on the individual citizen.



for a Council Decision on the exchange of information and cooperation concerning terrorist offences”,
COM(2004)221 final,2004/0069 (CNS), Brussels, 29/3/2004.


                                                116
TABLE 2
Is crime seen as a serious problem, by the media and the public, in your country?

Austria               Yes        By all political parties and the media. Especially cross-border
                                 crime is seen as a serious problem. Judicial cooperation is
                                 favoured.
Belgium               Yes        Especially the Dutroux trial has increased the insecurity of the
                                 public and fuelled the media hype.
Bulgaria              Yes        As a result of media attention terrorism and the so-called
                                 “serious crime” is seen as a serious problem.
Cyprus                Yes        Organised crime and transnational crime has increased during
                                 the last 10 years. Media tends to focus on organised crime
                                 activities.
Czech Republic        Yes        This includes financial crime and corruption. The media tends to
                                 focus on organised crime activities.
Denmark               Yes        However, media hype seems to be connected to this. Recent
                                 media attention on biker gangs and organised crime led to knee-
                                 jerk reactions and new legislation.
Finland
France                Yes        However, there’s insecurity about violent crime rather than
                                 organised crime activities. Media reinforces this.
Germany               No         There is some media hype despite a reduction in some violent
                                 crimes. However, on the whole crime ranks as 3rd behind
                                 unemployment and national security in peoples’ priorities.
Greece                Yes        There has been a dramatic increase in serious crimes (including
                                 violent and organised crime) over the last 10 years. There is
                                 some media hype but the figures speak for themselves.
Hungary               Yes        Crime is seen as a serious problem by the media and the public.
Ireland               Yes        It is seen as a serious problem by the media and the public and
                                 often ranks highly in opinion polls.
Italy                 Yes        Organised crime, economic crime, violent crime and terrorism
                                 are seen as problems.
Luxembourg            Yes        Prevention of serious crime and related activities is considered
                                 as an important matter by political parties and the media.
Netherlands           Yes        Although some types of crimes are dropping but some parts of
                                 the media and political parties regard crime as an important
                                 priority.
Poland                Yes        There is widespread fear about crime and safety. Political parties
                                 and the media echo people’s fears.
Portugal              Yes        Despite the fact that statistics don’t show any serious increase
                                 media hype is adding fuel to peoples’ insecurities.
Spain                 Yes        As in most countries the media reinforce peoples’ insecurities.
                                 There is certainly fear of terrorist attacks.
Sweden                Yes        Crime is seen as a serious problem by media and the public.
UK                    Yes        But it is petty crime and anti-social behaviour and fear of crime
                                 that are the big issues not transnational crime.




                                              117
Nevertheless, as the database has crime-minimising potential it can and should be presented
as such. The conclusion that should be drawn from Table 2 is that as a crime-minimising
measure the database does address the individual citizens’ concerns and will, therefore, have a
positive psychological effect as an additional measure designed to combat crime. It is
interesting to note that in some of the new Member States organised crime features as a
serious concern, e.g. the Czech Republic and Cyprus. In the former probably as a result of the
problems experienced during their transition to a free market economy while in the latter
probably as a result of special circumstances concerning the establishment of off-shore
companies.


3.3    Police powers


The issue of police powers has traditionally been a difficult one in Europe. With any new
innovative approach to judicial cooperation, such as the creation of new databases, there is
some public concern about their arbitrary use by enforcement authorities. In addition the
storage and availability of such information is sometimes seen as incompatible with the
promotion of the rehabilitation of offenders.


As can be seen in Table 3, the first impressions is that Europe seems to have turned a new
page when it comes to police powers. From the anti-establishment 1960s and 1970s the
beginning of the 21st century has seen a widespread acceptance of the need for more police
powers – with the possible exception of Sweden. As the national experts have pointed out this
is connected to a perception by the public (fuelled by the tabloid press) that crime rates are
rising and that it is necessary to give police more powers in order to protect the public.
However, if one reads Table 3 carefully the picture that emerges is rather more complicated.
While , with exception of Sweden, there is no move for a reduction in police powers in most
Member States the move is for better regulation of police powers and only in a few Member
States is there a move for an increase in police powers, and even in those Member States
special circumstances seem to have played a role, e.g. Belgium and the Dutroux case. What
becomes evident is that the European public is in a dilemma. On one hand there is the post-
war liberal tradition and on the other there is fear about rising crime. At this stage it is evident
that what the public want is a police that is ready and able to react rather than a police with
more powers.



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TABLE 3
                    Is there a move in your country towards:

                 the reduction of police powers?          the promotion of the
                                                          rehabilitation of ex-offenders?
Austria          No                                       Yes
                 The high crime rates have led to         A good example is the introduction
                 calls for increases in the powers of     of “diversion” in 2000.
                 the police.
Belgium          No                                       Yes
                 But since the Dutroux trial there is a   Belgian      prisons    now      have
                 move for a clearer legislative           “restorative justice consultants” and
                 framework       concerning     police    there is a tendency for non-custodial
                 activities.                              sentences (e.g. community service
                                                          since 2002).
Bulgaria         No                                       No
                 More of an attempt to modernise          There has been an attempt to
                 the Bulgarian police.                    modernise the Bulgarian prison
                                                          system. However, the system is still
                                                          moving slowly.
Cyprus           No                                       Yes
                 Police in Cyprus has less powers         Currently Cyprus is reviewing its
                 anyway when compared to other            prison system towards less custodial
                 Member States.                           services (e.g. the introduction of
                                                          community service).
Czech Republic   Unknown                                  Unknown
Denmark          No                                       No
                 Political focus seems to be on           But Denmark has a good prison
                 enforcement rather than crime            system already.
                 prevention or rehabilitation.
Finland
France           No                                       No
                 The new law of 9 March 2004              Organised and financial crime
                 “adapting justice to new forms of        concerns have turned the discussion
                 criminality” reinforced the power of     on     enforcement     rather     than
                 the police.                              rehabilitation.
Germany          No                                       No
                 Fears about terrorism an the general     Since the 1990s there has been a
                 climate towards tougher sentences        definite swing of the pendulum
                 coincided with calls for more police     towards more punitive forms of
                 powers.                                  sentencing with longer sentences.
Greece           No                                       No
                 Despite the fact that the protection     Although stressed as a priority it has
                 of citizen’s rights and the limitation   not been strongly promoted.
                 of police powers have been a
                 crucial part of legislation following
                 the experiences under the military
                 dictatorship
Hungary          No                                       No
                 The police rid itself of its state       Despite existing legislation this
                 administration tasks in order to         activity does not seem to be the
                 allocate more of its resources to law    integral part of the activity of the
                 enforcement and has obtained more        prison service.
                 powers.


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Ireland                   No                                       No
                          They are set to increase under the       There is very little progress in this
                          proposed Criminal Justice Bill           field.
                          2003.
Italy                     No                                    Yes
                          The recent terrorism issues have      The application of sentences
                          ensured that police powers remain     alternative to imprisonment has been
                          as they were.                         a feature of the Italian system for
                                                                many years.
Luxembourg                No                                    Yes
                          But there is a move for clearer Luxembourg has adequate provisions
                          conditions of law enforcement (Service d’exécution des peines).
                          activities as well as their control
                          measures.
Netherlands               No                                    Yes
                          There is even discussion of There is a tradition of non-custodial
                          increasing police powers to combat sentences.
                          terrorism.
Poland                    No                                    No
                          In the last five years there has been In fact it is often suggested that the
                          a     clear     tendency      towards punishments applied should be more
                          strengthening law enforcement severe and prison conditions should
                          agencies.                             be less comfortable for the inmates.
Portugal                  No                                    Yes
                          In 1987 the new Code of Penal There is a strong tradition for
                          Procedure decreased police powers. leniency going back to the 19th
                          The existing set up is regarded as century.
                          adequate.
Spain                     No                                    No
                          No such move has been reported.       But Spain has a very liberal prison
                                                                system.
Sweden                    Yes                                   Yes
                          There is a move for less police Sweden has a long tradition of
                          powers.                               positive prison system innovations.
UK                        No                                    Yes
                          Even though speed cameras tend to At the moment an important case is
                          cause grumblings in pubs.             under appeal.




The question about rehabilitation of offenders is always very important with reference to the
creation of new databases because scripta mannent and inclusion of individuals in databases
might have a negative effect in their rehabilitation, especially their employment prospects. At
the moment there are some problems with the inclusion of certain offences in national
criminal records,3 even though these are final decisions by a Court. The inclusion of

3
  See “The use of criminal records as a means of preventing organised crime in the areas of money laundering
and public procurement: the need for Europe-wide collaboration”, FALCONE PROJECT JHA/1999/FAL/197,
Institute of Advanced Legal Studies, University of London. Also see “A European Criminal Record as a means
of combating organised crime”, FALCONE PROJECT JHA/2000/FAL/168, Institute of Advanced Legal
Studies, University of London.



                                                    120
individuals in databases, even though there has not been a final Court decision against them,
might be seen as a serious breach of human rights unless great care is taken with access and
use of the database.


As can be seen in Table 3 the answers of the national experts are indicative of the recent
change of attitudes in Europe. Two decades ago the answer to such a question would be a
foregone conclusion and most –if not all – national experts would have answered positively.
Today most Member States appear not to have major concerns about rehabilitation. This may
be the result of a change of attitudes or indeed the success of previous efforts concerning the
rehabilitation of offenders




4      Analysis


The creation on databases which keep information on individual citizens is a very sensitive
point for many Member States connected to their past experiences as well as more
contemporary approaches to human rights. Throughout the 20th century various authoritarian
regimes in many European states consolidated their grip on power through the increased
powers of police forces, especially the secret police, who kept files on citizens’ actions and
beliefs. This lasting memory seems to have created a strong resistance especially by left-wing
parties and NGOs – who tended to be at the receiving end of such actions – to moves by the
state which recreate the “filing” of information on individual citizens. Consequently, any
proposal for the creation of a new database must pass this psychological test and alleviate any
fears concerning the general use of such data. To put it in more precise terms the citizens must
be assured firstly that there is need for such a proposal and secondly that there will not be any
misuse of information. In order to satisfy this need attention must be placed on three aspects:
contents, access and use.


4.1    Contents of the Database


The first point that should be made here is that there is need to distinguish between the
content of existing national databases and the proposed database on investigations and
prosecutions. Most Member States’ existing legislation allows for a database which includes
criminal investigations as well as personal data of the person under investigation and


                                              121
information on the crime under investigation. However, given that a new investigations and
prosecutions database will increase an existing heavy load, most national authorities would
have some doubts concerning the need for yet another database. In addition, there might be
some concerns about the nature of the data included. To alleviate such fears, a very good
solution would be to allow national authorities to use and transfer data from the existing
national databases. In this way national authorities will (a) have control of the information
kept on their own citizens and (b) require minimum administrative upheaval. Perhaps more
importantly, citizens of individual Member States will still be able to appeal against illegal or
false entries by appeal to national courts using national legislation, which they know and
understand better. Of course, issues of data transfer compatibility might play a role here since
national authorities often use custom-made rather than commercially available software.
Nevertheless, this solution sill avoid duplication of effort and easily pass the “psychological”
test mentioned earlier.


4.2     Access to the database


There are two models here. The first is the German model, which allows equal access to EU
and Member States’ national authorities as a matter of principle. The second model – the one
followed by most Member States – is more selective concerning who has access to nationally
collected data. An additional issue concerns access of individuals to their own records.
Generally speaking data collected by national authorities for internal “monitoring purposes” is
not available to individuals while data collected for use in court must be available. The
Commission will have to take an early decision, concerning the proposed investigations and
prosecutions database, on whether this data will be regarded as data collected for “monitoring
purposes” because there seem to be serious data protection concerns at the national level with
reference to the transmission of such information. One solution might be to allow national
authorities to decide which data can be transferred. However, such a solution might jeopardise
the functionality of such a database as some Member States will transfer full records while
others might only transfer minimum information. It is for this reason that the Commission
must set out at an early stage the precise terms of access, which should also include
provisions on “entry” and “erasure” of data. As it is often the case, the “bottom line” when it
comes to allowing access of national to other states data tends to be the involvement of
judicial authority.



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4.3    Use of the database


The use of the database can become a serious issue if not handled carefully. Clearly the aim of
the proposed database on investigations and prosecutions is to keep national investigating
authorities informed of prosecutions and investigations in other Member States, within the
wider context of preserving law and order. But what else can this database be used for? For
example, can it be used for employment vetting purposes or assistance in pre-trial proceedings
or the detection and prosecution of offenders? The use of the database must be compatible
with existing national provisions concerning use of nationally collected information and must
be able to deal with the current constraints in the field of mutual legal assistance.


4.4    Creation of a Network


The choice of network for the proposed database is an important element in its acceptance by
the Member States. Ideally there should be a central unit administering this database,
preferably based at Eurojust – which is a judicial authority and would therefore elicit few
objections by the Member States. However, as the experience of the European Criminal
Record indicates the Member States tend to be reluctant to accept such sudden changes. The
solution offered by the Commission in the case of the European Criminal Record was the
introduction of a two-stages process in which the first stage was the sharing of some of the
nationally collected information through the introduction of a network. The second stage
would involve the creation, maintenance and administration of a specialised database. By
using the same approach the Commission can by-pass the immediate fears by some Member
States. As it is often the case the positive effects of cooperation at the EU level tend to
become evident later rather than sooner. In this sense the Commission has time on its side.


5      Political Will and “added value”


In principle acceptance about the desirability of such a database is, of course, at the heart of
this proposal. Unless the Member States can be convinced about the usefulness of the
database it is unlikely that there will be support when the proposal is first presented to the
Member States in the Experts meeting. By looking at the experts’ opinion it becomes evident
that the political will is there but, as usual, it is in the details that problems might arise. What
Member States want is a solution that will pose the minimum of changes at the national level


                                                123
and will offer the maximum rewards in the field of mutual legal assistance. Purely legal
objections often hide more practical concerns about cost or administration. The tried and
tested two-stages approach mentioned earlier will undoubtedly alleviate some of these fears.
Some Member States might also have different views on the database because they might feel
that some of their existing projects might be in jeopardy (a good example was the German
reservations during the European Criminal Record experts meeting because of the existence a
similar Frnco-German project).


The added value of this proposal rests with its attempt to offer a European solution to a
problem that exists for over 100 years. Solutions at the national level, through bi-lateral and
multi-lateral mutual legal assistance mechanisms, have been tried for over 100 years and yet
the problems persist. In this sense the subsidiarity principle cannot possibly be offered as a
stumbling block. The creation of a database on investigations and prosecutions is, therefore,
recommended because at this stage it offers the only viable solution to the failing mutual legal
assistance mechanisms.




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Recommendations


   That the database for investigations and prosecutions is introduced using a two-stage
    approach.
   The database should in the long term be hosted be hosted by Eurojust.
   That access to the database is granted to judicial authorities.
   That the contents of the database are those that national authorities can transmit according
    to national legislation.
   That the Commission begins without delay informal consultations with the member states
    to assess what is acceptable.
   That the Commision looks closely at the objections raised by Germany and the UK.
   That the database on investigations and prosecutions is presented as a “crime buster”
    rather than yet another chance to open files on the citizens.




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