30 January 1992

Doc. 6557

1403-29/1/92-2-E

Report

on police co-operation and protection of

personal data in the police sector

(Rapporteur: Mr STOFFELEN, Netherlands, Socialist)


PROBLEMS AND SOLUTIONS

      The increase in international and organised crime requires a more effective police co-operation. For this an exchange of data in the police sector is needed and the formation of a European information and intelligence centre (Europol). At the same time one should ensure, adequate protection of the personal data kept and exchanged internationally by the police. The principles laid down in Recommendation No. R (87) 15 of the Committee of Ministers of the Council of Europe on "regulating the use of personal data in the police sector" should therefore be introduced in a binding legal instrument, that is a convention of the Council of Europe.

I. DRAFT RECOMMENDATION

1.        As a result of the Schengen agreement the European states co-operating in that agreement will proceed with the exchange of automatically processed personal data in the police sector. It is most likely that such an exchange will cover the whole of the European Community after the disappearance of frontier controls at its internal borders.

2.        Nowadays there is already an intensive exchange of data in the police sector among Council of Europe member states on a bilateral or multilateral basis and through Interpol.

3.        It is of vital importance for an efficient combat against international crime that it is fought at national and at European level.

4.        An efficient fight against crime implies an exchange of data in the police sector.

5.        In this respect it is useful to recall the Assembly's Recommendation 1044 (1986) on international crime and its plea for a European information and intelligence centre (Europol) and Recommendation No. R (87) 15 of the Committee of Ministers to member states of the Council of Europe "regulating the use of personal data in the police sector".

6.        Yet it is necessary that there be adequate protection of personal data in the police sector and one may note with satisfaction that the Council of Europe concluded, in 1981, a European Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. However, in order to be fully effective, it is not sufficient that this convention has now been ratified by eleven member states only.

7.        The Assembly therefore recommends that the Committee of Ministers:

i.        draw up a convention enshrining the principles laid down in its Recommendation No. R (87) 15;

ii.        promote the application of these principles in the exchange of data in the police sector between member states and between member states and third countries via Interpol. In this respect the implementation of the following principles is of the utmost importance:

a.        data should be accurate, relevant, not exceed the purpose for which they are stored and, where necessary, kept up to date;

b.       they should be screened before they are stored;

c.        an individual should have the right to know whether personal data concerning him are kept;

d.        he should have an appropriate right of access to such data;

e.        he should have the right to challenge such data and, if necessary, have them rectified or erased;

f.        individuals who are denied access to files relating to them should have a right to appeal to an independent authority which has full access to all relevant files and which can and should weigh the conflicting interests involved;

g.        there should be an independent authority outside the police sector responsible for ensuring respect of the principles laid down in such a convention;

iii.       appeal to member states to ensure that data in the police sector may only be exchanged with other member states and with Interpol on the lines provided for in the proposed draft convention.

II. EXPLANATORY MEMORANDUM

by Mr Stoffelen

      I.        Introduction

1.1       When, in September 1986, the Parliamentary Assembly adopted its recommendation on international crime, it expressed its concern about the alarming increase of transfrontier criminality. In that recommendation the Assembly made a very concrete appeal to the Committee of Ministers and the governments of member states to combine efforts for an effective fight against this kind of criminality. In the same recommendation and in its explanatory report the Committee on Legal Affairs and Human Rights noted the absence of a decent European agreement to lay down the rules, principles and conditions of bilateral and multilateral police co-operation, including adequate European protection of personal data in the police sector.

1.2       Since 1986 international crime and especially internationally organised crime worsened and the need to fight it effectively as well as the need for co-operation increased. Yet, the protection of personal data should prevail. Thus there is a certain tension between the need for data protection and the need for international co-operation. This will be the subject of my report which will deal with the present day situation of international (organised) crime (para. 2), the best way to combat such crime (para. 3), the need to protect privacy (para. 4), the actual situation concerning co-operation of police and law enforcement authorities as well as the protection of privacy (para. 5) and finally draw its conclusions (para. 6).

      II.        Present situation of international (organised) crime

2.1.       I submitted on behalf of the Committee on Legal Affairs and Human Rights a report and a draft recommendation on international crime (1). In this report I described the situation based on the latest facts. I have no reason to believe that there is less crime since then - on the contrary! The report defined international crime as such crime or criminality which is operating at an international level, irrespective of whether it is organised or not. It indicated that the manifold possibilities for rapidly transferring information, money, people and goods around the world provide an excellent opportunity for certain specific kinds of crime.

2.2       In respect of drug traffic the report mentioned that one can only make a rough estimation of the total production and traffic of opium (and its derivates heroin and morphine), cannabis, cocaine and psychotropic substances. Rather optimistic estimations of the total seizure of drugs by police indicate that 10% out of the total traffic is seized. Another estimation indicates that of the total production of cocaine in the world some 2% are seized by the police or customs offices. The gains involved are tremendous. The total turnover of drug traffic in the United States was then estimated at some 70 billion dollars.

2.3       As far as the illegal arms trade is concerned, the report mentioned that, according to information given by Interpol, the illegal trade in arms - especially fire arms - is very extensive and serious. A distinction should be made between large-scale traffic and small-scale traffic. The large-scale traffic is in the hands of suppliers (for example fire arms retailers, or even senior employees of firms manufacturing arms and in some countries even government agencies) and the middle men. These middle men maintain close contacts with official agencies, with the leaders of organised groups specialising in terrorism and with the ordinary criminal underworld. This lucrative market is in the hands of a relatively small number of people. The small scale traffic too is very profitable and extensive. Certain links do exist between traffic in fire arms and traffic in other goods such as drugs, counterfeit currency, stolen cars, etc.

2.4       In as far as terrorism is concerned we had to remark that it is very sad that, despite the increased efforts of justice and police authorities in our member states and despite many recommendations of our Assembly, terrorism is still a very serious problem. Now, in 1991, we cannot arrive at another conclusion. Terrorism is an ongoing most serious problem. In my 1986 report I made a remark which is in my view still relevant, namely that there is rather clear evidence about links between different terrorist groups. In this report I also described the depressing facts concerning trade in women, economic criminality, air piracy and the traffic in stolen art objects.

2.5       In some countries a study was made of the serious problem of organised crime. As far as possible in this public document I shall briefly give a few facts.

      One of the most common definitions of organised crime is that the crime or the criminal group meets the following criteria (2):

      1.       The group is characterised by a more or less hierarchic structure and a more or less constant composition;

      2.       in the group a system of sanctions is in force (threats, ill-treatment, executions);

      3.       the gains and profits of the crime are to a certain extent invested in "legal activities" (white washing);

      4.       more than one type of criminal acts are committed by the group;

      5.       the group bribes civil servants and/or staff of private enterprises.

2.6.       According to the first and preliminary investigations in the Netherlands about 190 criminal groups are active in a professional and structural way in committing serious, very lucrative crimes. About 15 groups have a hierarchic structure and an internal sanction system. Three (important) groups do meet all the 5 criteria. A high percentage of the criminal groups is internationally active (57%). According to estimations at least 300 million Dutch guilders earned by organised crime (some estimations are much higher) are invested (with the additional infiltration) in several sectors of society. The influence of organised crime is constantly increasing.

2.7.       In a report of the Home Affairs Committee of the House of Commons in the United Kingdom (3) the following remarks were made: "Last autumn the committee produced a major report on Drug Trafficking and Related Serious Crime. It was clear to us from our inquiry that drug trafficking was a major international criminal activity involving a significant degree of organisation. It had the grave potential of escalating in importance"..."The events of the past few months have emphasized once again the importance of co-operation in Europe against the terrorist threat"... . "Less dramatic than drugs or terrorism, but equally important as an international crime is major fraud. The city of London police drew our attention to "high technology crime" involving the use of the international banking system. According to the Association of Chief Police Officers (ACPO) it may be "greatly under-reported" and the Centre for the study of Public Order at Leicester University pointed out that the "relative invisibility of white-collar international crime made it particularly difficult to detect. Sums involved can be in excess of £100 million, and the prevalence of these frauds is increasing. Co-operation in detecting this sort of fraud is not confined to the EC countries, but involves, for example, Swiss and American Banks and financial institutions". The Home Affairs Committee reports about the fraud made of European Community subsidies "although it is difficult to make accurate estimates of the amounts involved - some have spoken of billions of pounds - it is clear that recent improvements by member states in the detecting and reporting of this type of fraud has led to the recovery of even larger sums of money ...". The committee further reports on other (international) crimes.

2.8.       In an impressive German report (4) a description and estimations are given about organised crime. Apart from a picture of the serious present day situation it gives an indication of future developments. The report speaks about a further professional development of organised crime and the possibility that influences from outside, especially political, social and economic developments, will have their impact on size and structure of organised crime. In the nineties organised crime will further increase. According to experts this trend is mainly influenced by European developments (the Common Market in 1993) and further international factors: the opinions of the experts vary from a prediction of a small increase with a temporary slowdown to a prediction of a very great increase, which may - according to a few experts - be followed by a small increase either caused by the success of the fight against organised crime or by the fact that the market is "saturated". The experts mention as specific grounds for this increase the freedom to go wherever one wants, mobility, additional opportunities to act, sale and camouflage chances and the lack of or deficiencies in international co-operation and co-ordination of police and law enforcement authorities.

      III.       What is needed for an effective fight against international (organised) crime?

3.1.       The developments mentioned in the previous paragraphs, make it clear that, even more than in 1986, there is an urgent need to fight in a determined and effective way against increasing international criminality whether it is organised or not. We have to show the political will and to take and promote all the legal and other measures needed for a combined effective effort. In essence the whole crux of the desirable approach is twofold:

-        one has to fight crime wherever it takes place: for international crime the scale is worldwide, therefore at least at a European level;

-        one has to take at national and at European level all the measures needed for an efficient co-operation of police and justice, with at least an exchange of all the information needed: the "hard, objective" information and the "soft criminal and political intelligence data".

      If I study and evaluate the international literature, such as the documentation edited by the Dutch Criminal Investigation Information Service, the reports of the Bundeskriminalamt, and the reports of the Home Affairs Committee of the House of Commons, I see endorsement of the ideas and measures mentioned in our report and recommendation, with two important additional ranges of suggestions.

3.2.       In brief the desirable approach is as follows:

A.        In our Recommendation 1044 (1986) we recommended, inter alia, that the Committee of Ministers, in as far as national legislation and the national situation in member states is concerned:

i.        invite the governments of the member states, if and when proceeding to a review of their penal law, to take penal provisions in other member states into account, so that it may be easier to compare penal provisions from one country to another;

ii.        invite the governments of the member states to give special attention to the possibilities for better harmonisation of the legislation on the possession of firearms, and to the issue of unfalsifiable passports and/or other identity papers;

iii.       invite the governments of the member states to consider the feasibility and modalities of legislation providing for the seizure of assests of unverifiable or illegal origin (bearing in mind the Italian "Anti-Camorra Act").

      In as far as the police and practical measures for co-operation and organisation are concerned:

i.        envisage the formation of a European information and intelligence centre;

ii.        in the meantime, encourage police co-operation against terrorism among member states, inter alia by organising informal consultations and talks among government officials in charge of the suppression of terrorism;

iii.       invite the governments of the member states to conclude a European framework agreement to promote bilateral or multilateral co-operation, in order to lay down the rules, principles and conditions of practical and pragmatic police co-operation between member states and the exchange of information on the daily situation, with special regard to transfrontier movement of terrorists and other serious criminals, to harmonise the methods of search for objects like weapons, passports, etc., and to establish secure telex lines between national police centres;

iv.       consider the possibility of a European agreement (in principle) on transfrontier co-operation of police forces, provided that the national police force in the country is informed about the activities of a foreign policeman, gives its consent, co-operates and is responsible for any formal executive action;

v.        promote mutual agreement to track down criminals, and to arrive at the harmonisation of practical police rules and the equipment of police officers;

vi.        invite the governments of those member states which do not (yet) feel able to adhere to the European Convention on the control of the acquisition and possession of firearms by individuals, to exchange informally informations on the purchase of firearms by foreign individuals.

B.        The Bundeskriminalamt recommends a European comparison of penal law "A European Penal Law would really facilitate the international fight against organised crime marked by co-ordination and co-operation. As an example the BKA mentions the need to harmonise the rules concerning pursuit across the border. A police expert whose name is not mentioned in the BKA report, recommends "a European co-operation of police and justice with a united harmonised legislation concerning organised crime". Very useful are a range of suggestions in order to prevent corruption in the police and the administration:

-        setting up an independent "internal revision" group;

-        rotating the civil servants who take decisions concerning benefits/concessions/the awarding of contracts/licences;

-        distributing among various individuals the responsibility for awarding contracts, examining the costs involved and approving the work commissioned;

-        strengthening the cartel authorities to enable them to act on their own initiative;

-        prohibiting invitations to tender on terms which have proved conductive to corruption (restricted invitation of tender).

      Moreover the BKA recommends a solid common definition of the phenomenon "organised crime". On that basis an international concept may be conceived, characterised by the following elements:

1.        improving the general legal provisions in the field of penal law and law of criminal procedure;

2.        setting up and extending, throughout Europe, flexible, efficient units for investigating organise crime, provided with skilled staff and adequate equipment;

3.        shifting the emphasis of police efforts to preventive measures, intensifying undercover investigations and stepping up the investigative activities of the police;

4.        setting up and extending a (Europe-wide) information network extending beyond the domain of the police;

5.        launching, in collaboration with the mass media, long-term, large-scale information programmes about organised crime;

6.        initiating an extensive exchange of information and opinions among all relevant organisations and institutions about the phenomenon of organised crime.

C.       Recently Ministers of the Netherlands and the state North-Rhine-Westphalia made a plea for a kind of European Police Service. The Minister of Justice of the Netherlands underlined the necessity of a European Police Information Centre, in an interview about the Netherlands presidency of the European Council (5). The Minister of Home Affairs expressed the view that a European Police Service is needed (6). He too apparently hinted on the "Europe" of the twelve EEC countries. He argued that in a plan with three phases the first phase would be the creation of a European Police Information Centre; in the second phase this centre could have the task to co-ordinate with limited executive competences. In the third phase the Police Force Centre would be turned into a European Police with competence to examine criminal cases independently.

      IV.        Rules needed to protect personal data in the police sector

4.1.       Thus a much more co-ordinated and effective fight is needed against serious and increasing international crime. We have to take all the required measures, and thereby overcome national sensibilities. At the same time this European co-ordination and approach has to be organised in a decent way, with respectable rules and agreements and with due respect for personal data.

      The present paragraph deals with the question which kind of protection would be needed. As I explained in para. 1 there is a growing tension between, on the one hand, the need to intensify and improve international co-ordination and co-operation in the fight against crime, and, on the other hand, the lack of decent rules to protect personal data in the police sector.

4.2.       Summarised the picture is as follows:

a.       to a certain but limited extent the European Convention on Human rights is relevant for the protection of privacy - as I shall explain later;

b.       of rather great importance is the European Convention for the protection of individuals with regard to automatic processing of personal data (7), but this convention was ratified by eleven member states only;

c.       very important and relevant is the recommendation of the Committee of Ministers on "Regulating the use of personal data in the police sector" (8);

d.       the Commission of the European Communities submitted, on 24 September 1990, a proposal for a Council Directive concerning the protection of individuals in relation to personal data, applicable to all personal data files in the public sector with the exception of files relating to activities which do not fall within the scope of Community Law;

e.       the Commission of the European Communities also proposed a draft resolution of the member states of the Communities in which they undertake to apply the principles contained in the Directive also to those parts of the public sector which do not fall within the scope of community law;

f.       the attempts, so far, to arrive at an adequate common protection of privacy in the Schengen agreement have not been succesful. If one studies the problem which kind of rules would be needed for the protection of personal data in the police sector the answer is rather clear. My brief explanation is to a large extent based on a thorough study: "The Schengen Information System, also a question of data protection" by Douwe Korff (9).

4.3.       At a meeting of data protection authorities of the five countries of the Schengen agreement (Belgium, France, Germany, Luxembourg, Netherlands) a declaration was adopted concerning a Schengen Information System (SIS) (10). This system should be subject to:

-        a clear, restrictive and definitive definition of the contents of the file;

-        the existence of a right of access, a right to rectify information and a right to delete non-relevant information;

-       the existence of an independent governing authority in each country concerned;

-        the establishment of a joint assessment and standardisation organ composed of representatives of the national governing authorities;

-        participation of existing governing authorities in preparing the SIS;

-        inclusion of the provisions of the Council of Europe Convention for the Protection of individuals with regard to Automatic Processing of Personal Data, which shall serve as minimum restrictive obligations.

4.4        The relevant norms can be summarised as follows:

1.       Under the Human Rights Convention the collection of, passing on and use of data by the police is an "interference" with fundamental rights which must be based on law "and justified as - inter alia - being proportionate" to a legitimate aim (11).

2.       What is "proportionate" in respect of the collection of passing on and use of data by the police can be classified by reference to data protection norms.

A.       Criteria concerning the kind of data which may or may not be collected.

-        In accordance with Article 5 (b) of the Data Protection Convention it could be argued that it should be a general rule, also to be applied under the Human Rights Convention, that personal data shall be obtained and stored for specified and legitimate purposes only and not used in a way incompatible with those purposes.

-        With reference to Article 6 of the Data Protection Convention it could be argued that it would be a general rule that certain particularly sensitive types of personal data, including data revealing religious or other beliefs, shall be subject to special safeguards.

-        With reference to Principle 2.4 of the recommendation on police data it could be argued that "the collection of data on individuals solely on the basis that they have a particular racial origin, particular religious convictions, sexual behaviour or political opinions or belong to particular movements or organisations which are not prescribed by law should be prohibited."

B.        Criteria concerning the quality of data which are collected and        stored.

-        In accordance with Articles 5 (c) and 5 (d) of the Data Protection Convention, it could be argued that it should be a general rule that personal data shall be adequate, relevant and not excessive in relation to the purposes for which they are stored as well as accurate and, where necessary, kept up to date.

-        The recommendation on police data assumes that a screening take place of any data which have been collected by the police before they are stored in police files.

-        In accordance with Principle 3.1 of that recommendation would be the rule that the data "be limited to accurate data and to such data as are necessary to allow police-bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law".

C.       Criteria concerning the passing of data

-        In accordance with Article 5 (b) of the Data Protection Convention it could be argued that it should be a general rule that personal data shall not be passed on by a data user unless this is compatible with the purpose for which the data were stored.

-        The recommendation on police data contains several very useful principles. It would take me too far to mention all these principles in this report, which is supposed to be brief.

3.       Under the Human Rights Convention individuals should in principle have a right of access to files relating to them.

      Such access could be denied if this would be necessary and        proportionate in the interest of some other legitimate aim (such as the prevention of crime) (12).

4.       The nature and scope of the right of access to police files can be clarified by reference to data protection norms.

a.        The right to know whether data are held

-        Exceptions to this general rule should be provided by law and should constitute a "necessary measure in a democratic society" for the fulfilment of certain specified legitimate aims. Principle 2.2 of the recommendation on police data stipulates that a person should be informed of the fact that data on him are held in police files, as soon as the object of the police activities is no longer "likely to be prejudiced" and "unless data are deleted".

b.       The right to have access to data

-        Principle 6.2 of the recommendation on police data reads as follows: "The data subject should be able to obtain access to a police file at reasonable intervals and without excessive delay in accordance with the arrangements provided for by domestic law"

-       According to Principle 6.4 "the exercise of the rights of access, rectification and erasure should only be restricted insofar as a restriction is indispensable for the performance of a legal task of the police or is necessary for the protection of the rights and freedoms of others."

c.       The right to challenge data and to have data rectified or erased

-       Data should be adequate, relevant, not excessive, accurate, up to date, necessary in respect of the police task concerned, adequately screened and classified (on the basis of distinctions as to degree of accuracy and reliability and of distinctions between facts and opinions) and "objective".

5.        Under the Human Rights Convention, individuals who are denied access to files relating to them must be able to appeal to an independent authority which can (and should) weigh the conflicting interests involved.

6.        The proper nature and function of the "independent" authority can be further clarified by reference to data protection norms.

-       According to Principle 1.1 of the recommendation on police data: "Each member state should have an independent supervising authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation."

-       The supervising authority should have sufficient resources to enable it to be effective.

-       A data subject should be able to appeal either to the supervising authority or to a court or tribunal.

-       It is apparently clearly intended that the supervising authority and/or the courts or tribunals appealed to should always have full access to the contested files, even if they are of course not always obliged to pass on the contents of this file.

      V.       Actual situation concerning police co-operation and data protection

5.1.       In the previous paragraphs I described firstly the present day reality of crime and criminality and that an effective fight against international crime has to take place. In paras. 2 and 3 I indicated what is needed for such a succesful fight against international crime and which consequences it should have for a decent protection of personal data in the police sector.

      Before arriving at my final conclusion I would like to describe and evaluate a bit the present day situation concerning police co-operation and data protection. In this brief description I shall deal with the following institutions: Interpol; Trevi, Pompidou Group and the Schengen agreement.

5.2.       INTERPOL

5.2.1.       Interpol is a worldwide police organisation founded in 1923 by twenty European countries which created the "Commission Internationale de Police Criminelle" with Vienna as its seat. At the end of the thirties 34 countries were member of this organisation which had become a symbol of police co-operation. In the Second World War the CIPC was taken over by the Nazis. In 1946 after this terrible experience a kind of rebirth was organised . The statute was changed by the acceptance of an article which forbids nowadays Interpol to interfere or be active in cases with a political, religious, racial or military character. According to information given by its Secretary General to me that same article apparently prevented Interpol in the seventies, to be helpful in the attempts I made as rapporteur of the Committee on Legal Affairs and Human Rights to have Klaus Barbie extradited by Bolivia where Barbie was living according to information given by Simon Wiesenthal.

      In 1956 the name was changed into Interpol.

      In 1984 the French Government granted certain immunities to Interpol which had 147 member states in 1988. The highest organ of Interpol is the General Assembly. This assembly elects an Executive Committee and the Secretary General.

      The General Secretariat which has nowadays its seat in Lyon

(France) has 5 sections:

      - policy and management

      - research and studies

      - police

      - administration

      - support division.

5.2.2.       The National Central Bureaux of Interpol are the central points in international police co-operation. Although Interpol is clearly very useful in the worldwide co-operation between the police forces in the different countries, it cannot be denied that in many countries some rather serious criticism is uttered. Remarkable is the ressemblance of the criticism in different countries. An outstanding European expert, Professor Fijnant, who published many books and articles about organised crime and European Police Co-operation - described the situation as follows (13):

      At the moment that Interpol had its greatest success in Europe there was an outburst of criticism: Interpol is functioning too administratively, it does not meet the needs of the executive national police forces, it does not take enough initiatives etc.

5.2.3.       The Home Affairs Committee of the House of Commons, which visited several countries (14) during its preparation of the report remarks inter alia "Interpol's performance was subject to considerable criticism in evidence and in the course of our visits". These criticisms focused on three main levels. Interpol's speed of response, the formality of its procedures and its poor level of security.

      The City of London Police described the existing arrangements within Interpol as "bureaucratic and laborious". It was suggested by the association of Scottish Police Superintendents that Interpol's formalities are restrictive and do not allow for contacts between police agencies in different countries, a view also reflected in evidence from the Scottish Police Federation. Most significantly, the Metropolitan Police special branch questioned Interpol's security:"Interpol staff are not experienced in affording the proper protection to classified material, do not possess the requisite security clearances and the politics and motives of some of its member agencies are, to say the least, questionable in this context."

5.2.4.       These criticisms of Interpol are not limited to the United Kingdom. They are reflected in conversations I hold with senior police officers in other European Community countries. The committee remarks that Interpol questioned the validity of this perception and "felt that much of what was said of Interpol with the police service was completely incorrect. "The British government told the committee: "Police officers often criticise Interpol fro being too slow. Very often the fault lies not within Interpol as such, but rather within the NCB in the receiving country or the agency to which request has been passed by the NCB". Moreover Interpol stressed that the requesting country maintains control over information. It can decide which countries receive their information which is not automatically made available to all member countries. Communications are encrypted to prevent interceptions and the changes outlined will improve the security of communications.

5.2.5.       Similar or even more serious criticism was uttered in several articles in the police press (15) and in American journals reporting on soundings of the opinion of the American police (16). Despite all these sometimes really serious criticisms I would like to remark that Interpol is useful in the fight against international crime. The great advantage of Interpol, but at the same time its disadvantage, is that Interpol is operating worldwide.

5.2.6.       Nevertheless another problem is that the rules concerning the protection of personal data of Interpol are extremely rudimentary and primitive and do not meet at all the requirements indicated in para. 3. There are three articles in the agreement between France and Interpol which deal with data protection. An evaluation of all relevant aspects leads to the conclusion that despite the great value of Interpol, Europe needs its own European Police Information Centre and its own European Police Co-operation as far as possible in the framework of the Council of Europe, or of the European Communities.

      There are three rather pragmatic reasons for this.

1.        Essential for an effective fight against international crime is, inter alia, an exchange of all relevant data and information, that is to say objective data and the criminal and political intelligence data. This is only feasable between countries who share the same ideas and principles, theory and practice of the rule of law and respect human rights and freedoms in an institutional framework, with sufficient political influence and participation of their own governments and adequate parliamentary control, that is to say, either in the framework of the European Communities or of the Council of Europe. It is out of the question that anyone would encourage the use of institutions as Interpol for this form of exchange.

2.        It is certainly very desirable that in a common European battle against organised crime an exchange of information and of co-operation beyond the police field takes place. This is only thinkable and feasable in the framework of European Political Co-operation.

3.        It would be an almost total neglect of the political realities in Europe to think that the government and parliaments of member states who already face serious problems when considering and, possibly, approving police co-operation and privacy protection in the framework of the Schengen agreement, the European Communities or the Council of Europe, could be willing to offer information and co-operation to a worldwide organisation.

5.3.       TREVI

5.3.1.       Relevant in this respect is - extremely briefly indicated -the history and impact of Trevi, the Pompidou Group and Schengen. Trevi is an intergovernmental forum with meetings at ministerial level in which the member states of the European Communities can discuss "co-operation at a practical, operational level against terrorism, drug trafficking and other serious crime and public order problems. Trevi was established in 1976. All member states of the European Communities are members of Trevi but this does not mean that Trevi forms part of the European Community.

5.3.2.       The advantage of Trevi is that this kind of co-operation can or could include all necessary exchange of information and is under parliamentary control of most, if not all, parliaments of European Community member states. The disadvantage of Trevi is twofold. The first disadvantage is that the use of Trevi outside the field of terrorism is either absent or successfully hidden for European citizens. I share the major part of the conclusions and suggestions of the Home Affairs Committee of the House of Commons: "We conclude that Trevi has great value in matters which specifically concern European Community states, in its political dimension and in the area of terrorism. We recommend that its activities be restricted to these areas".

      Therefore terrorism and not much more. The second disadvantage is that the fight against terrorism has not been extremely successful in this way and - even more important - it is impossible or very difficult to accept the idea that terrorists would be willing to stop their activities or restrict themselves to the territory of the European Communities.

5.4.       THE POMPIDOU GROUP

      The Pompidou Group is an example of rather successful co-operation in the framework of the Council of Europe in the fight against drug problems. The advantage is - as has been stated in several reports of our Assembly - that the problem can be tackled at an European scale and in co-operation with the United Nations. The disadvantage is that the influence and control of our Assembly have to be improved.

5.5.       SCHENGEN AGREEMENT

      The Schengen agreement, signed at Schengen in Luxemburg in 1985 between Belgium; France, Luxembourg, Germany and the Netherlands on the gradual abolition of checks at common borders, is a very relevant and, at the same time, rather irrelevant example of the problems dealt with in this report. I restrict myself to a few lines on this subject, which merit however a much more detailed discussion. The Schengen agreement is an example of the good and bad aspects of the consequences of the diasppearance of internal borders and of the possibilities and problems of the common fight against crime. So far it appeared to be impossible to agree on a common acceptance of decent rules for the problem of privacy and an acceptable and feasable common machinery to deal with the due respect for the European principles of fundamental human rights and freedoms and the rule of law.

5.6.       At the Conference of the European Council on 9 and 10 December 1991 in Maastricht the Heads of State and of Government of member states of the European Community discussed and agreed on a text on co-operation in the field of justice and home affairs. In a declaration of the conference concerning police co-operation (Art. A. pt.8) the member states expressed their willingness to consider concrete measures concerning several tasks in the field of exchange of information and experience:

-       assistance to national bodies and authorities in charge of criminal prosecution and security, especially in the field of co-ordination of investigation,

-       establishment of data banks,

-       centralised evaluation and supervision of information in order to get a survey of the situation and to examine which methods of investigation are applied,

-       collection and supervision of information on the national working methods in the field of prevention in order to inform member states and arrive at prevention strategies at European level,

-       measures concerning additional training, investigation, criminology and judicial anthropometry.

      The member states agreed to consider in 1994 on the basis of a report whether whether to extend this range of co-operation.

      As a Rapporteur I restrict myself to two comments: the first is that quite clearly the member states of the European Community are making progress on their way to effective police co-operation and the setting-up of a Europol. My second remark is that my report, based on the advice of many police experts is much more concrete and therefore could eventually be helpful for the governments of not just the Community countries but all member states of the Council of Europe. I fully understand the necessity to come to an effective police co-operation and fight against criminality in the Europe of the Twelve. At the same time it is our duty to make a plea that this effective fight against criminality not be restricted to the Community but as far as possible be extended to the whole of Europe, united in the Council of Europe.

      VI.        Conclusions

6.1.       In this report an attempt was made to describe the present-day situation of international (organised) crime. More than ever an inspired and effective co-operation in the common fight against this crime is needed. It has to be fought at least at a European scale. It is therefore necessary to organise and to have an exchange of all relevant objective, police, criminal and political informations - and to introduce as far as feasable a kind of practical European co-operation of police and justice, as we indicated in our report on international crime. We are justified to make that claim if we make a plea, as we should do so even apart from this need for increased co-operation, to organise our co-operation in a decent way, with due respect for the protection of personal data.

6.2.       Relevant of course is the institutional framework. In as far as the European Police Information Centre is concerned we have to repeat and endorse our appeal for a Centre in the framework of the Council of Europe to fight criminality wherever it takes place. In as far as possible we should organise arrangements of police co-operation on an all-European scale. I give this description because I need to combine two deeply felt and at the same time pragmatic conclusions:

      i.       It would be a tremendous gift and pleasure for international criminals if we were to restrict the fight against international (organised) crime to the European communities. I am not eager to accept this idea.

ii.       It is a fact of political reality that a kind of real police co-operation will be organised in 1993 or soon afterwards in the European Communities in the framework of the European Political Union. Hence there is a need to endorse what the Assembly submitted in 1986 in its report and recommendation on international crime and to express the opinion that, as far as feasible, the common fight against international crime has to take place on a wider scale, in the framework of the whole of Europe, that is to say the Council of Europe. Essential is at the same time to solve the problem of the tension between this increased need to fight international criminality and to do so in a decent way with due respect for the protection of personal data. What would then be more justified and logical than to make a plea for a European convention, if possible as an additional protocol to the Human Rights Convention, following mostly the ideas and principles already laid down by the Committee of Ministers of the Council of Europe in its Recommendation No. R (87) 15 "Regulating the use of personal data in the police sector". We have to recommend such a convention and the practical implementation of the principles laid down in such a convention.

NOTES

(1)       Report on international crime, Rapporteur Mr Stoffelen, Assembly Doc. 5417, 4 September 1986

(2)       Georganiseerde misdaad en strafrechtelijk politiebeleid (Organised crime and criminal police policy)

Prof. Dr. C.J.C.F. Fynant, J.B. van den Brink en Co., Lochem, 1989

(3)       Practical Police co-operation in the European Community, Home Affairs Committee of the House of Commons, session 1989-1990, Seventh report, Volume I and II

(4)       Bundeskriminalamt - Forschungsreihe "Organisierte Kriminalität, wie gross ist die Gefahr", "Organisierte Kriminalität in der Bundesrepublik Deutschland ". Wiesbaden 1990

("Series of scientific research" "Organised Crime; How dangerous is it ? Organised crime in the F.R.G., Wiesbaden 1990)

(5)       Minister of Justice of the Netherlands, Radio programme, 6.1.1991

(6)       Minister of Home Affairs of North-Rhine-Westphalia, in a speech in Venlo on 18 April 1991

(7)       European Treaty Series No. 108

(8)       Recommendation No. R (87) 15 - see Appendix

(9)       "Dissonanten in het akkoord van Schengen", (Discords in the treaty of Schengen), 1990

(10)       Declaration of a meeting held in Luxembourg on 17 March 1989

(11)       Leander judgement of the European Court on Human Rights, Matme and Sunday Times judgements

(12)       Leander judgement and the Gaskin judgement

(13)       Towards a European FBI, Article No. 13 in a Dutch book,

"Grensverleggende recherche" (shifting criminal investigations), J.B. van den Brink, Lochem

(14)       Practical police co-operation in the European Community, Home Affairs Committee of the House of Commons, Session 1989-1990, Seventh report, Vol. I, page XXV, XXVI, XXVII

(15)       "Interpol", article in the Dutch magazine for the police, 1986

(16)       The Washington Times, The Los Angeles City Journal, 3 April 1991

Reporting committee: Committee on Legal Affairs and Human Rights.

Budgetary implications for the Assembly: None.

Reference: Doc. 6354, Reference No. 1712 of 28 January 1991.

Draft recommendation: unanimously adopted by the committee on 20 December 1991.

Members of the committee: Lord Kirkhill (Chairman), Mr Altug (Vice-Chairman), Mrs Ekman (Vice-Chairwoman), MM. Akçali, Amaral, Arnalds, Bindig, Brincat, Collette, Colombo, Columberg, De Decker, Espersen, Esteves, Fodor, Fuhrmann, Ghalanos, Gundersen, Stig Gustafsson, Hyland, Jansson, Karcsay, Mrs Lentz-Cornette, MM. Meimarakis, Negri, Nunez, Oehry, Petitpierre, Pontillon, Posluch, Rodotà, Rokofyllos, Ruiz (Alternate: Cuatrecasas), von Schmude, Schwimmer, Sir Dudley Smith,

Mrs Soutendijk-van Appeldoorn, Mrs Staels-Dompas, MM. Stoffelen, Vogel, Ward, Worms.

N.B. The names of the members who took part in the vote are underlined.

Secretaries to the committee: Mr Plate and Ms Coin.