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
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
10 March 1998