EUROPOL: WHAT IS THIS BABY GOING TO LOOK LIKE, ONCE IT IS BORN?
In Maastricht, the decision was taken to set up "Europol". But little is said in the Treaty on Union on what will be the real role of this new institution of European police cooperation. Merely a center for the exchange of experience and information among the various national police forces or a centralized European apparatus with own policing powers and outside democratic control?
A working document of the European Parliament's Committee on Civil Liberties and Internal Affairs (Rapporteur: Lode van Outrive) raises a lot of questions about the future role and organization of Europol. These questions will have to be answered clearly and the development of the project submitted to public debate at each step, if the already heavily shattered democratic and institutional credibility of the Maastricht process is not to suffer a further - and maybe deadly - blow. One lesson to learn from the Danish people's No to European Union is that evading public debate on long term political goals by a tactic of step by step information and "ad hoc" arrangements leads to institutional chaos and popular distrust in the long run.
A synopsis of the van Outrive document on Europol
Article K.1(9) of the Treaty on European Union (Maastricht treaty) provides for "police cooperation for the purpose of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime (...), in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol)".
In the Declaration on Police Cooperation, which follows the text of the Treaty, the signatory states further state that they are willing to envisage the adoption of practical measures in areas relating to the following functions in the exchange of information and experience:
- support for national criminal investigation and security authorities, in particular in the coordination of investigations and search operations;
- creation of databases;
- central analysis of data on national prevention methods for forwarding to Member States and for drawing up Europe-wide prevention strategies;
- measures relating to further training, research, criminology and forensic matters.
The Member States further agree to consider - during 1994 at the latest - whether the scope of such cooperation should be extended.
The European Council instructed the TREVI Ministers, in collaboration with the Commission, "to take such measures as were needed to allow Europol to be set up at an early date".
Since the early 1970s, the main impetus for the creation of a "European FBI" has come from Germany's BKA (Federal department of criminal investigation). The Under-Secretary of the German Ministry for Home Affairs, Schreiber, argues: "We Germans, with our federalist state structure, have considerable experience with security issues. We should apply the approach used in Germany at European level." It was, accordingly, the German Chancellor Kohl, who proposed the setting up of Europol at the Luxembourg Summit.
The future form of the Europol police structure is unclear and actually depends in large measure on the future form of the Union (federation, confederation, decentralization?).
The question of Europol's institutional framework will pose problems. Does it make sense to limit participation with Europol to the Member States of the European Union, when the main goal is combating international "organized crime"?
In short: do we want a Europe-wide police area or a common police organization of the European Union?
Who will further take responsibility for membership of Europol at national level? The national police forces? Will other forces and administrations dealing with internal security also be involved?
Who will do what and what resources and powers will they have?
According to the treaty on European Union, Europol, in its initial phase, will be based on a European drug unit (EDU) and specifically the gathering and exchanging of information.
What sort of information will be processed? The Schengen Agreement provides for the exchange and collection of information far beyond material criminal suspicion (e.g. covert or targeted surveillance of persons to "prevent crime and danger to public security"). Will Schengen serve as a model for Europol? Already now, work is in progress within the 1992 TREVI working party on a Europe-wide information system (EIS), to be based on the Schengen Information System (SIS) model.
This leads to the question in the van Outrive working document: "Should we not be wary of the unregulated growth and overlapping, with all these different information exchange systems? In addition to the SIS and the EIS, referred above, Interpol also has an information system, not to mention SCENT and DAF, and so on. How can these systems be kept separate, or, if necessary, be geared up to another properly?"
Van Outrive also wonders, what sort of protection for privacy will be built in and if systems differ in this field as well.
Another aim for Europol is to set up a network of liaison officers to combat drug trafficking (in an initial phase).
Van Outrive points out that the German BKA already at present deploys liaison officers in such non-EC countries as Turkey, Brazil and Argentina. Will such countries also be part of an exchange of liaison officers in the framework of Europol? What will be their status in the host country? Will they have executive police powers? Who will monitor them?
Some suggest that Europol should develop joint tactics and strategies for combating and preventing crime and should have own investigatory powers. This could lead to Europol conducting investigations itself or issuing instructions to police officers from the Member States. Such a development would constitute a shift from the declared aim of mere "information exchange" to a sort of a common general staff of European police forces with strong executive powers. Would this not lead to the need for the creation of a European Public Prosecutor's Office (the equivalent to the German Federal Prosecutor General (Bundesgeneralanwalt)? If so, before what court of law? In other words, who is to judge whether the actions of Europol officers are lawful, and before what court of law?
Drug trafficking is the first field in which Europol will operate, but it is quite obvious that the "fathers" of the Europol project wish to massively extend the field of operation as soon as possible.
The following crimes were mentioned at the European Council of Luxembourg in June 1991:
- organized crime (unspecified)
- trafficking in human beings;
- economic crimes;
- environmental crime;
Other lists of crimes to be dealt with in the framework of European police cooperation were drawn by the Council of Europe and the European Parliament, but, according to van Outrive, "on the whole, the Member States have not done very much detailed research in these fields". This, van Outrive says, calls for the selection of criteria which can be used to pinpoint priority areas and for a clear definition of a number of key terms. The lack of a clear legal definition of terms like "danger to public order", "public security" and "organized crime "opens the door to extensive interpretation.
It is proposed in the working document that the definition "could be modelled on the interpretation under Community law of the term "public policy" in, for example, an existing directive".
(Article 3 of Council Directive (64/221/EEC) of 25 February 1964 on special measures concerning the movement and residence of foreign nationals on public policy, public security or public health grounds stipulates that such measures "shall be based exclusively on the personal conduct of the individual concerned" and that there must be "clear evidence to show that the person concerned is a danger to public policy or public security. Suspicions are not enough.")
[Ed. note: This definition is far more restrictive than the Schengen provisions allowing for covert surveillance and preventive exchange of personal data among police forces of the Member States].
With regard to the protection of privacy, van Outrive suggests that in Europol's initial stages, if it transpires that not all Member States have sound laws in this area, a distinction could be drawn between, for instance, members, provisional members and non-members.
Concern is expressed in the working document with regard to the weakened position of defence: "But should not the defence have independent access to the cooperation networks, to obtain the information it needs on an independent basis? This implies that the defence should be in a position to carry out some type of monitoring if the trend towards stepping up the exchange of information between the police forces persists."
"This would also entail a set of international regulations on the legal consequences of unlawful or improper actions on the part of the authorities responsible for investigation and prosecution."
The fundamental question remains how a European police staff with some operational powers could be conceived against the background of the "considerable differences between the criminal law systems of the various Member States" (van Outrive). Wouldn't a single European criminal law be a precondition for the setting up of such a common police structure? And would, in its turn, such a uniformization be desirable, considering the differences in criminal law culture, which "form an integral part of the national culture of a particular country"?
Van Outrive also expresses concern for the democratic deficit in setting up European police cooperation: "Negotiations on Europol have so far been held within a sub-group of TREVI [thus, at an intergovernmental level and in a climate of confidentiality]. Would it not be appropriate to involve the national parliaments and the European Parliament in further negotiations and decision making? Should not information be passed on to the parliaments directly?"
The working document raises the question of monitoring and control. How can adequate monitoring and control be carried out to guarantee justice and human rights? Who will be able to monitor the anticipated intensification of police cooperation? Will the the judicial power, the magistrature, have the capacity, in terms of international organization, staff and equipment, to carry out monitoring? Which court will be responsible for judicial control of international policing activities within the framework of Europol?
How will international "preventive" police strategies and tactics, and administrative measures be monitored?
Growing police internationalization has so far not been matched by judicial or parliamentary monitoring.
Van Outrive suggests that the national parliaments and the European Parliament should be involved in practical decision-making and proposes the setting up of an ad hoc parliamentary police monitoring committee.
The Europol document of the Committee on Civil Liberties and Internal Affairs ends with a crucial question: "Finally, how are the European public and their various interest groups to be able to follow developments within Europol and react to them?
N.B.
Source: European Parliament, Committee on Civil Liberties and Internal Affairs: Working Document on Europol, rapporteur: Lode van Outrive (Doc EN\DT\205180, PE 200.599 Or. NL).