Select Committee on European Communities Tenth Report

Letter from JUSTICE to Lord Tordoff, Chairman of the Select Committee on the European Communities

  Further to my letter of 18 November 1997, I am writing to express again JUSTICE's concerns about the draft Convention concerning the establishment of "EURODAC" for the comparison of fingerprints of applicants for asylum (Doc. No. 109191/3/97), now on the agenda of the 19 March JHA Council for "conclusion and signature".

  First, JUSTICE expresses its deepest concern about the haste with which the current scrutiny process is conducted. We understand that the House of Lords European Communities Committee was only notified that EURODAC would be on the agenda for adoption and signature at the 19 March JHA Council when the agenda for that Council Meeting appeared as a Written Answer in Hansard HL Debates, on 5 March. This is a serious matter contrary to the Government`s undertaking to apply scrutiny rules under the Treaty of Amsterdam.

  Moreover, this speed appears unnecessary. Unlike the agenda published in Hansard HL Debates, the annotated agenda for the 19 March JHA Council sent to the Dutch Parliament does not list EURODAC as an A-point, to be concluded and signed, but as a B-point, on which debate is to take place. The Dutch agenda also mentions a number of important issues that need to be resolved before signature can take place. These include fingerprinting all asylum seekers, data protection matters, financial arrangements and the role of the Court of Justice, according to the Dutch minister of Justice. This would correspond with statements made by Joyce Quin MP and Peter Edwards in December 1997, in evidence before your Committee. In answer to questions on EURODAC, it was stated that some "quite knotty issues" were yet to be resolved, but that the UK Presidency would aim for signature by the time of its final JHA Council (12th Report HL Select Committee on the European Communities, para 26).

  In my earlier letter, I raised a number of human rights issues JUSTICE believes should be addressed before the Convention is signed: the role of the European Court of Justice, adherence to data protection standards, and the retention of fingerprint data after an asylum seeker has been granted refugee status.

  In the current draft, the Court of Justice has been granted jurisdiction to rule on disputes between Member States, and, importantly, to give preliminary rulings in accordance with the provisions of Article 177 TEC. The Home Office Explanatory Note states that this is supported by the UK Government. JUSTICE welcomes this change of policy, and expresses the hope that the importance of Court of Justice jurisdiction will now be recognised in other third pillar agreements, too.

  However, JUSTICE remains concerned about the length of the period for which fingerprints may be retained, even after refugee status has been granted. We do not believe that this has been properly addressed in the current draft of the Convention. Although it provides, in Article 6b, that fingerprint data of an asylum seeker who has been granted status will be blocked, JUSTICE reiterates that such data ought to be erased. In this regard, we would like to point out that the taking of fingerprints is an interference with the right to respect for private life under Article 8 of the European Convention on Human Rights (as established in, for instance, Friedl v. Austria, EHHR Series A No. 305, para. 66). Any interference with that right needs to be "necessary in a democratic society", which entails an element of proportionality. Retaining individuals' fingerprints without objective justification cannot be considered a proportionate measure, and would therefore fail the requirements of the European Convention on Human Rights.

  Finally, we would like to re-state the case for applying the provisions of the EC Data Protection Directive to the EURODAC Convention. Athough we accept that the Convention is now being negotiated under Title VI TEU, and thus falls outside the scope of the Directive, we believe that the Convention should be examined in the light of the provisions of the Treaty of Amsterdam. In Paragraph 14 of the Home Office Explanatory note, it is accepted that such an approach should be taken with regard to Court of Justice jurisdiction. JUSTICE argues that a similar stance should be taken with regard to application of the EC Data Protection Directive.

10 March 1998

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