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  • Europol in the context of police co-operation inside and outside the EU

    Heiner Busch

    CILIP, Berlin

    Europol is intended to fulfil three basic functions: (1) to act as a relay station for the rapid exchange of information, (2) to co-ordinate ‘operational’ measures, for example controlled deliveries; without, however, having any executive power of its own, and (3) to carry out evaluations at central, EU level.

    As Mr Storbeck has already indicated, if the Convention is ratified, Europol will be the first institution for police co-operation to operate on the basis of an international agreement. In the absence of such an agreement, Europol entered into its first phase in January 1994 on the basis of a ministerial agreement alone. In practice, the first two functions of this new organization are as a result already being fulfilled. Work is now being commenced, prior to the entry into force of the convention, on the development of a EU central computer system which will become operational immediately after ratification has been completed. This will consist of
    – reference data files containing information which is by no means limited to convicted criminals but also includes suspects and potential suspects,
    – analytical data files compiled for the specific evaluation purposes for example with regard to a case file or the existence of a suspected organization into which information concerning contacts, accomplices (possible) victims, (possible) witnesses, etc. can be entered.

    The ground is now being laid for the organization to carry out its third task. You can now see for yourself the importance of the Convention and, by extension, of the legislative bodies involved. I will not go into any further detail concerning the text of the draft convention, since this has been sufficiently well covered by Tony Bunyan and Thilo Weichert. My task today is to place present and future Europol operations in the context of international police co-operation. If I fail to cover this point comprehensively for you in the next 20 minutes, the fault may lie partly with me. Some of the blame, however, undoubtedly lies with the confusion concerning the various bodies and organizations and forms of bilateral police co-operation which have emerged in the last two decades, as evidenced by the following:

    1. Until the mid-70s the International Criminal Police Organization (ICPO-Interpol) was by and large, the only international police organization. Since then a veritable proliferation of similar bodies and institutions has occurred.
    Interpol came into being in the 1920s and, despite the absence of any basis in international law, subsequently acquired a monopoly for the transmission of information between the national central bureaux (NCBs) belonging to the national police forces. In the 1970s, the organization became the target of severe criticism from the highly professional and technically advanced Western European and North American police forces which were well ahead in the field. Interpol was accused of being inefficient, too slow to respond and unable to be entrusted with confidential information since too many police forces were involved, not all of them trustworthy. It was also lagging behind technologically, the police forces in the poorer states being unable to keep step with the latest developments. Above all, however, the organization was excluded from investigating crimes of a political nature, in other words matters of state security.
    However, international police co-operation in the 1970s centred on measures to combat terrorism. It was not by chance that the bodies and institutions which emerged in the 1970s for the purposes of co-operation are mainly concerned with matters of state security. One of the most important of these new bodies was the TREVI Group, created in 1976 by the EC Member States, which was subsequently incorporated into the justice and home affairs pillar of the Maastricht Treaty. In the 1980s, co-operation centred more on measures to combat drugs. About a year ago the head of the German Criminal Investigation Office (BKA) Mr Zachert, indicated that the BKA was on more than 20 working parties in the anti-drugs area alone. This is sufficient to give you an impression of the veritable jungle of bodies involved.

    2. These bodies vary greatly in nature concerning both their political affiliation and their tasks and their geographical make-up. The various organizations, bodies and networks involved in police co-operation are not subject to any system or established hierarchy.
    Many of the new bodies are concerned with intergovernmental co-operation and are headed by ministers (for home affairs or justice), while the police, and to a certain extent the secret services, are involved at operational level. This applies for example to the Vienna and Berne clubs founded at the end of the 1970s, consisting initially of the five Alpine countries alone (Germany, Austria, Switzerland, Italy and France), their objective being co-operation to combat terrorism. The TREVI Group and with intergovernmental co-operation as defined under Title VI of the Maastricht Treaty are organized along similar lines. Unlike the TREVI Group, in which co-operation was specifically intended to be informal and ‘spontaneous’, the new Council structure, like the Schengen Group, is mainly responsible for negotiating conventions.

    In addition to bodies concerned with co-operation at regional or EC/EU level, a number of bodies exist for the purposes of cross-border co-operation, for example the working party of senior police officers at the border between the Netherlands, Belgium and Germany in Aachen (NEBEDEAG-POL) or various regional subgroups belonging to the Standing Working Party on Drugs (STAR). While the STAR is attached to the BKA, the regional groups are under the authority of the relevant German ‘Laender’ Criminal Investigation Office. In addition, agreements or arrangements have been concluded on local frontier police traffic, for example between France and Germany in 1977 or between Germany and Poland under the agreement concluded this year.

    In addition, a number of international bodies exist which consist exclusively of police representatives:

    – various conferences in the framework of Interpol,

    – HONLEA (Heads of Narcotic Law Enforcement Agencies), conferences of national police chiefs engaged in combating drugs under the auspices of the UN Drug Control Programme (UNDCP) or

    – the International Association of Airport and Seaport Police etc.

    Many international bodies have also formed regional or local branches which meet frequently. Police representatives from not only European countries but also the USA and Canada are also to be found on other international police bodies, for example the international Working Group on Undercover Policing consisting of heads of unit responsible for undercover operations from about ten (not only EU) countries, the FBI and the Canadian gendarmerie.

    Increasing importance is being assumed by bodies concerned with customs co-operation such as the Customs Co-operation Council which has recently changed its name to the World Customs Organization which is more or less the customs equivalent of Interpol, or the Mutual Assistance Group (MAG) a forum of EC Member State customs investigation authorities embodied in the third pillar of the Maastricht Treaty.

    In addition the work of a number of political bodies have implications for co-operation between police forces, for example:

    – the Council of Europe’s legal policy organizations which have spawned about 20 agreements on legal aid and extradition

    – the Financial Action and Chemical Action Task Force within the framework of the Group of Seven major industrial countries, which in the early 1990s, issued a number of major recommendations concerning money laundering and the surveillance of drug precursors,

    – the above mentioned UN Drug Control Programme etc.

    The above list, while not exhaustive, clearly illustrates that the EC/EU is by no means the only framework for police co-operation and that the structure of the third pillar accordingly encompasses only one area of co-operation between European police forces.

    3. Most of these organizations and bodies are for the purpose of ‘comparing notes’ rather than practical co-operation in the course of investigations. This does not, however, mean that they are either insignificant or innocuous from the point of view of protecting civil rights.
    Nearly all these bodies meet in camera, any information filtering out to the public generally taking the form of insubstantial press releases once more indicating the need and the will to achieve greater co-operation. This secrecy however is only one of the reasons why we know so little about the decisions of these working parties. Efforts to discover what specific decisions have been made by them are frequently fruitless, since no such decisions have been reached.
    In view of the lack of specific decisions and the ‘disorganized nature’ of the bodies which I endeavoured to indicate at the outset, such exchanges of information are not without importance.
    Firstly, it serves as a vehicle for the transfer and harmonisation of policing methods and techniques. At the beginning of the 1980s, controlled drugs delivery was a method regularly used by only a few police forces and customs authorities. Today it is standard procedure.
    Secondly, political recommendations to widen the scope for police action are transmitted through such working parties, although they are not officially involved at political level via ministries. The overlap between the lists of members of individual bodies in no way detracts from their functional efficiency but, on the contrary, actually increases the importance attached to their recommendations. Although a recommendation may have come from basically the same group of people, whether in the framework of TREVI, the EU, Interpol HONLEA, or the Vienna club or simply a meeting of senior police officers from various countries, the recommendation in fact achieves greater significance not only at international level but also for the internal policies of the countries concerned.
    Thirdly, the impact of such meetings is enhanced by their informal nature since they enable the necessary contacts to be made and give police officials from various countries the opportunity to meet each other and exchange telephone numbers. These informal contacts are of immense importance for co-operation at operational level – for the rapid exchange of information, cross-border observations and controlled deliveries.

    4. Formal provisions are of only secondary importance for the purposes of undercover, that is to say covert, operations. To begin with, hardly any exist and, where they do, they frequently only take the form of recommendations, the actual modus operandi being decided by the police forces themselves.
    Rules concerning the use of undercover agents and investigators will scarcely be found in international treaties. At the most, a mention may be made of controlled deliveries, which frequently involve the use of undercover investigators. Article 11 of the 1988 UN (Vienna) Convention concerning measures to combat trade in drugs calls on the signatory states to use such methods insofar as they are compatible with their own laws and the requirements of the individual case. Article 73 of the 1990 Schengen implementation agreement scarcely goes beyond this, while national legislation varies widely. In Germany the use of undercover investigators is covered by the 1992 law on measures to combat organized crime and by ‘Land’ laws on police procedures. Controlled deliveries are referred to only in the ‘directives on criminal procedures and fines’. In fact, the relevant German legal instruments, while wordy, contain few hard-and-fast rules, while French legislation, on the contrary, is extremely succinct, simply indicating that controlled deliveries (without undercover units) and monitored deliveries (with undercover units) are legal procedures. In the other Schengen member countries the matter is covered by internal directives only.
    What finally counts is that this method is not prohibited in principle. The details are covered by the relevant police forces by means of practical rules, developed either simply as a result of informal contacts, by means of handbooks setting out the relevant legal provisions, the competent authorities and the availability of direct contacts or through liaison officers able to establish direct contacts without delay and ensure that requests by their own authorities are taken seriously by the recipients.

    5. Almost all western European police forces now make use of such liaison officers who, on the one hand, fulfil the roles of ambassadors and, on the other, establish informal contacts on a more official basis. The fact of bringing them together under one roof for example in the framework of the Europol Drugs Unit enables them to operate more effectively.
    The BKA alone has stationed liaison officers in 40 countries, particularly for the purposes of combating drugs. A BKA officer has also been stationed with the Special Branch of the London Metropolitan Police Force for a number of years and is mainly involved in state security matters. Within Europe BKA liaison officers are seconded to the police headquarters of the countries concerned while outside Europe they are attached to the German embassies, where they also help with the co-ordination of backup provided by Germany in the form of equipment and training.
    In the latter half of the 1980s efforts were made within the framework of the TREVI Group to create a common network of EC liaison officers, thereby limiting expenditure for individual Member States and increasing the number of countries in which EC liaison officers were stationed. Officers from one EC Member State were to keep not only their own police forces but also those of other TREVI/EC countries informed and pass on requests for information. The project failed however because of the language problem and the different laws applying in different Member States. Only the Scandinavian countries, where the linguistic and legal differences are not as great, use such joint liaison offices in third countries. Although the posting of liaison officers has for years been an established practice, the 1990 Schengen Convention includes an article specifically relating to this. While this constitutes a formal basis for the work of liaison officers from the Schengen countries the others, that is to say the majority, simply work on the basis of an administrative agreement. In practice, this does not give rise to any differences.
    The El Paso Intelligence Centre in the USA, which combines liaison officers from all federal anti-drug authorities so as to ensure the rapid transmission and more effective assessment of information, provides a model for international pools of liaison officers as well as the projected Europol network of liaison officers which is also being planned along these lines.
    The European Liaison Office (formerly the European Secretariat) of Interpol, situated in the Interpol General Secretariat in Lyon, includes pools of European liaison officers although not from every country. The liaison officials in Lyon correspond to ‘contact officers’ in the national central bureau (NCBs). Europe in this case means not only the European Union but all other European members of Interpol, including the Eastern European countries.
    In this case also the objectives are a rapid exchange of information and its assessment. As in Europol, the experiences of the Dutch and British police forces in ‘crime analysis’ provide a model. Not only situation reports but also broader evaluations of case files are drawn up. A special section was created for this purpose involving the exchange of sensitive information.
    Liaison officers also operate in the field of customs. This is organized not only at national but also at international level. The World Customs Organization has a network of such contacts in Eastern Europe and elsewhere.

    6. In addition to conventional exchanges of information, international data collections and the technical resources for the exchange of information existed even prior to the Schengen information system (SIS) and the projected Europol data files.
    In fact, the SIS is the first supranational police data system which can be acceded on line by terminals in the Member countries when controls are carried out and into which data can also be entered on-line through central computers in the Schengen countries. For the member countries – seven of the nine Schengen countries – this search procedure replaces the Interpol system – although only insofar as the search covers a Schengen country. If the German police are seeking somebody in Poland it must still go through the Interpol central bureau in Warsaw. With the SIS a number of intermediate steps involved in entering or accessing data can be omitted. SIS search procedures are also more comprehensive than Interpol’s, including not only criminals and suspects, as do national search procedures, but also migrants or asylum-seekers to be deported or sent back over the borders.
    Prior to the SIS, electronic procedures could also be used in searching for objects. As early as 1978 the TREVI ministers recommended that Member States pool their resources in this area by means of on-line access for the national central bureaux. Germany has extended this recommendation to all European members of Interpol. Depending on the state of the art in each of the partner countries, this can be done either by computer link-ups or by telex. Problems concerning data protection are not considered although it is rare for data used in searching for objects to exclude all personal data.
    Despite initial delays in developing a data processing system, the electronic age also reached the Interpol General Secretariat after its move to Lyon in 1989 at the latest. The Interpol General Secretariat has a criminal information system (CIS) which is only available to its staff. In addition, some of data contained in the CIS can be accessed on-line by national central bureaux through an automatic search facility (ASF). The data stored there belongs to the police forces of the member countries which entered it. They decide whether the data is to be made available for all, some or none of the NCBs.
    In the field of customs co-operation, electronic communications and supranational assessment procedures have become established, particularly for the combating of drugs. Since the end of the 1980s a number of measures were taken in the context of the Customs Co-operation Council:

    – a ‘Balkan-Info’ service for information on the smuggling of heroin along Balkan routes and

    – a ‘Cargo-Info’ service providing information on the smuggling of drugs through air freight.

    The MAG (or the working party on customs issues, following the entry into force of the Maastricht Treaty) launched:

    – a ‘Mar-Info’ service to provide information on smuggling on freight vessels and

    – a ‘Yacht-Info’ service relating to private yachts.

    The German customs criminal investigation office acts as a host for all four data systems. There are only minimal differences between those involved in each case and the system launched by the MAG extends beyond the EC/EU Member States. The System Customs Enforcement Network (SCENT) operated by the EU customs authorities can be interrogated via telex by third-country customs authorities. SCENT became ‘operational’ for the first time in 1993 for Operation Octopus, a major maritime operation. Such major operations have been repeatedly launched by customs administrations at intervals. In each case intelligence systems, that is to say data concerning suspects are used.
    Data concerning suspects is also exchanged by TREVI liaison offices by national security and secret services. TREVI liaison offices were established for this purpose in 1976. In the latter half of the 1980s the network was consolidated by means of a safe, encoded, fax network. Centralized evaluations in the area of EC state security co-operation were already being called for at the end of the 1980s for example the ‘Palma document’, produced by the ‘Group of Co-ordinators of Free Movement’, now the K4 Committee, which does preparatory work for the Council of Ministers of Justice and Home Affairs. Two years after the ratification of the Europol Convention at the latest the network of TREVI liaison offices will form part of the new European Police Bureau.
    The Europol data files, which are now being compiled are by no means the first international collections of police data and they will not replace, but rather supplement, existing data files. While the EU police forces will undoubtedly make greater use of Europol data files than of Interpol evaluation resources, the latter will not disappear because they can also be used by third country police forces. The current rivalry between the two and Interpol’s resentment at the low level of consultation by Europol will gradually be replaced by co-operation. The necessary conditions already exist. The Europol Convention enables the Director of the Bureau to conclude agreements with international and foreign police forces.
    In view of this the value of a formal agreement as a basis for Europol’s future work will be limited particularly since the instrument in question lacks conviction, giving police forces considerable powers without even attempting to establish realistic limits. The ‘residual’ areas of police co-operation which are not covered by such a formal agreement will not disappear as a result.
    There should be no mistake about the fact that international police co-operation is governed by informal structures. Accountability to parliaments and the general public which, as we have been forced to remark, is deplorably lacking at international level, is, in this context, also a foreign concept.

    Heiner Busch has graduated in political sciences and is one of the editors of the publication Burgerrechte und Polizei.