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(Hazánkért Online, April 2nd, 2003) The European Union Criminal Code that will overthrow
Habeas Corpus and Trial by Jury in UK
Part 5
CORPUS JURISØ Part 1. CRIMINAL LAW
[Offences
and Penalties] Ø Part 2. CRIMINAL PROCEDURE
[Investigation and Trial structures] Ø
Part 3.
Commentary COMMENTARY
[Dated: 1/1/1999] Ø Part 4. Resolution on the Corpus Juris Report Ø Part 5. Increased state surveillance EU gives go-ahead for increased
state surveillance
13th June 2002
On May 30th the European Parliament voted in support of a
Commission and Council proposal that will give law enforcement agencies the right to monitor telephone, internet and e-mail traffic. Under the new EU directive, the police and other state agencies will be able to oblige internet service providers and
telephone companies to keep
data on all citizens in EU member countries with
whom they are communicating with and what they are downloading from the
internet. Tony Bunyan of Statewatch - the human rights group that monitors
the EU - commented, just before the European Parliament decided to
support the Council of Ministers on this issue: "The vote in the European Parliament and
the final decision on this issue will be a defining moment for the future of
democracy in the EU. If all telecommunications - phone calls, e-mails, faxes,
and internet usage - are placed under surveillance not only will data
protection be fatally undermined but so too will be the very freedoms that
distinguish democracies from authoritarian regimes." The British Greens, Liberal Democrats, and UKIP voted against
this measure, whereas, with the exception of one MEP (Lord Stockton), the
Conservatives voted for it, as did Labour. One Labour MEP, Arlene McCarthy,
abstained (Guardian, May 31st 2002). The UK government enthusiastically
supported the measure when it was voted on in the Council of Ministers. This reverses the EU's original directive on data protection
that compelled companies that provide communications services to destroy the
logs of their customers within two months. "This issue will be a defining
moment for the future of democracy in the EU. If all telecommunications –
phone calls, e-mails, faxes, and internet usage - are placed under
surveillance not only will data protection be fatally undermined but so too
will be the very freedoms that distinguish democracies from authoritarian
regimes." Tony Bunyan - Statewatch Within days of the vote in the European
Parliament, the British government has announced that it intends extending
the Regulation of Investigatory Powers Act (RIPA) that will come into
force in August. Now government departments, local councils and
individual NHS authorities, as well as law enforcement agencies, will be able to
compel companies, without court order, to provide detailed information on
individuals. This measure could face a legal challenge
on the basis that it violates article 8 of the European Convention of
Human Rights, as now incorporated in to UK law through the Human Rights
Act. Since EU law takes precedence over domestic statutes, it will be very
interesting to see what happens if British judges, or failing that, the
European Court of Human Rights in Strasbourg, rule that this new EU law is
in breach of the ECHR. On Sunday June 9th, The Observer
newspaper revealed that this new civil liberties-violating law follows the
preparation of a secret document by the EU's own police force, Europol at its
headquarters in The Hague. The proposals in this paper for a 'common
code' on data retention were drawn up at a conference on how to increase state
surveillance. Representatives of police forces, the intelligence services,
and customs services from the EU member states attended. Apologists for Europol have always
claimed that it would be nothing more than a 'clearing house for information'.
Yet, this document reveals that Europol is initiating changes in policy
and is in the vanguard of moves to increase the power of the authorities
over ordinary citizens within the EU. The strategy document proposed that
'Companies that run internet sites will be required to retain passwords used by
individuals, record which website addresses are visited and keep details of
web pages looked at and any credit card or bank details used for
subscriptions.' Europol can hold information on
individuals that includes their 'sexual orientation, religion, or politics',
as well ethnic origin, age and address. Under article 8.4 of the Europol Convention
there is a catch-all category of 'additional information' that could include
hearsay and unsubstantiated allegations. The implications are very sinister. As
confirmed by current Labour party chairman Charles Clarke, when a Home
Office minister, in a response to Tory MP Jacqui Lait in July 2000, Europol
can hold information on individuals on its Central Information System
database that includes their 'sexual orientation, religion, or politics', as
well ethnic origin, age, address, and so on. Indeed under article 8.4 of the
Europol Convention there is a catch-all category of 'additional information'
that could include hearsay and unsubstantiated allegations. Individuals
included in the database need not have been convicted of committing criminal
offences under national law or be thought likely to have carried out crimes
for which they were never convicted. Information can be entered about persons
who it is believed will commit crimes in the future. Given that the Amsterdam treaty commits
Europol to assisting the fight against 'racism and xenophobia' - which
are not defined - it is safe to assume that there is nothing to stop it
collecting information on individuals who engage in activities considered to
be inimical to the creation of an EU system of government. It is worth
bearing in mind in this context that the EU created and funded European
Monitoring Centre for Racism and Xenophobia has defined opposition to the
single currency as 'monetary xenophobia'. "The mission of the EUMC is not to
deal with "monetary xenophobia" (refusing to become part of Euroland) or
"geographical xenophobia" (we should stay away from the continent, we prefer our isolation living on our
island)." Peter Fleissner - European Monitoring Centre. There have been
allegations by 'whistle-blowers' within the organization that officers have
sold supposedly confidential information on EU citizens to criminal elements.
Article 8 of the protocol attached to the Convention grants Europol officers
'immunity from the legal process of any kind in respect of words spoken or
written, and of acts performed by them, in the exercise of their official
functions.' Europol, together with national law enforcement agencies, was charged by The Council Of Ministers in August of
last year with drawing up a list of 'political troublemakers'. The
individuals on this list could then be 'tracked and identified' and prevented
from leaving their home country and travelling to where EU summits were
taking place. This database, which comes under the auspices of the Schengen
Information System, is initially targeting environmentalists. Persons
included on this, or Europol's own data-base, do not need to have been
convicted of any previous crime, or be under suspicion of having committed a
crime, or be planning to engage in any future illegal activities. Article 8 of the protocol grants Europol officers 'immunity from
the legal process of any kind in respect of words spoken or written, and of
acts performed by them, in the exercise of their official functions.' Under the EU Convention on Mutual Legal
Assistance, passed in the Council Of Ministers with the support of former
Home Secretary Jack Straw three years ago, any member state police force, as
well as Europol, can request information on, and the keeping under
surveillance of, any citizen living in any part of the Union. The requesting
authorities can either ask their colleagues in other states to pass on the
results of the intercepts or can ask for the intercepts to be transmitted
'real time', as it is happening, to the requesting state. The Danish newspaper Berlingske Tidende
reports that, when Denmark assumes the presidency of the EU in July, its
Justice and Home Affairs Minister will push at the next EU summit for Europol
to be given greater powers including the right to confiscate assets from
criminals. (EUobserver.com). At present, Europol can encourage the carrying
out of 'specific investigative actions' by law enforcement agencies in the
member countries and can provide its own officers in a support capacity to
joint teams. v Police to spy on all emails
Fury over Europe's secret plan to access
computer and phone data
Kamal Ahmed, political editor Sunday June 9, 2002 The Observer Millions of personal emails, other internet information and
telephone records are to be made accessible to the police and intelligence
services in a move that has been denounced by critics as one of the most
wide-ranging extensions of state power over private information. Plans being
drawn up by Europol, the police and intelligence arm of the European Union,
propose that telephone and internet firms retain millions of pieces of data -
including details of visits to internet chat rooms, and of calls made on
mobile phones and text messages. In a move that has been condemned by privacy
campaigners, a draft document passed to The Observer reveals that the EU is
now drawing up a 'common code' on data retention, which will be applicable in
all member states. Security and police sources said new powers on accessing
personal data Will come into force in Britain towards
the end of the year. 'It is typical that such a significant change in the control
over private information is being worked out in secret,' said Dr Ian Brown, a
leading expert on data privacy and director of the Foundation for
Information Policy Research. 'It does seem to have been Britain that has put pressure on
other member states to put in place this type of legislation. In 99 per cent
of cases it will be used properly, but what about the other one per cent?
There is not enough scrutiny of what is going on.' The Europol document was drawn up at a
private meeting of police, intelligence services and customs and excise officials from across Europe in The Hague last April. It lists 10 areas where companies will be required to keep information to help in the fight against international
terrorism, domestic crime and drug running. Companies that run internet sites will be
required to retain
passwords used by individuals, record which website
addresses are visited, and keep details of webpages looked at and any credit
card or bank details used for subscriptions. Where
the email went, its contents and the time and date it was sent. It is believed that Britain will push for
the data to be kept for up to five years. At the moment much of it is only
kept for one or two months, for billing purposes, by the companies that run
internet and email services. Sources at the National High-tech Crime Unit, which is
overseeing implementation of plans for data retention in Britain, point out
that the growth of so-called 'cyber crime' means that they need new
powers to keep ahead of the criminals. One official also said that investigations into crimes such as
the murders carried out by the GP Harold Shipman relied on the retention of old telephone records. 'We need to codify how this happens, so all countries in Europe
are dealing with the same set of rules,' the
source said. 'The internet does not recognize national boundaries and
international companies don't need the confusion of dealing with separate
codes in different countries.' The Europol document says the use of
telephones - land lines and mobiles - will be monitored. Numbers dialed, when and where they were
dialed from and personal details such as the address, date of birth and bank
details of the subscriber who paid for the call will also be kept. The document, headed 'Expert Meeting on
Cyber Crime: Data Retention', suggests mobile phones records could be
used by police and the intelligence services to track the
geographical location of people making calls. Mobiles use a network of masts to convey the calls, placing the
user in a geographically distinct 'cell' at the time of the call. Records
using such geographical locations were used to acquit the teenagers accused
of murdering Damilola Taylor. The Association of Chief Police Officers is also drawing up a
manual of standards so that police forces across the
country use similar methods when accessing the data. +++ ------------ Dr. Gaudi-Nagy Tamás ügyvédEurópa jogi szakjogászIroda:
H-1095 Budapest, Gabona u. 10. II. em. 1. Tel: (36-1) 216-3088, Tel/fax: (36-1) 216-2261,
mobil: (36) 20-916-5230 E-mail: drgaudi@drgaudi.hu <www.drgaudi.hu |