17th Jul 2019

New EU police investigation co-operation alarms civil liberties watchdogs

  • Even if it an act is not a crime in one country, police may still have to investigate if it is in another (Photo: nuakin)

Long a refusenik in the realm of European co-operation on justice and home affairs, the UK has decided to opt in to a proposal that will simplify requests by police in other EU member states to investigate suspects in criminal cases.

The British government is calling the move a new "invaluable tool" in the fight against transborder crime, but civil liberties watchdogs say that the move will force police to investigate individuals for acts that are not considered crimes in their home country.

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On Tuesday, UK home secretary Teresa May told British MPs that the government was to opt in to the ‘European Investigation Order', a proposal from eight EU member states led by Belgium.

Currently, European police may make requests for help in investigations via European ‘Mutual Legal Assistance'. The EIO, a directive initiated by Belgium, Bulgaria, Estonia, Spain, Luxembourg, Austria, Slovenia and Sweden, would replace and significantly streamline this system.

However, civil liberties groups worry that in the wording of the proposal, the main grounds that have in the past been available for authorities to refuse a request for mutual assistance will no longer be available.

In particular, Statewatch, the UK-based civil liberties monitor, says there is no longer a basis for refusal on the grounds of territoriality and what is called "dual criminality" - that the act for which information is sought must constitute a crime punishable in both states.

This would now mean that a person who committed an act which is legal in the member state where the act was carried out could, according to critics, be subject to body, house and business searches, financial investigations, and some forms of covert surveillance, if the act is regarded as a crime under the law of another member state.

For example, Holocaust denial is illegal in Germany and 12 other EU countries but not in the UK, Sweden or Spain - each of which back the new proposals. The EIO could thus in theory used by Germany to someone who denied the Holocaust in a country where to do so is legal.

Statewatch also argues that the flexibility of the executing member state not to carry out coercive measures would also be dropped in the new legislation.

Separately, Fair Trials International, a human rights charity that campaigns for the rights of people facing criminal charges in a country other than their own, warns that the move will "allow European countries to order ... police to gather and share sensitive personal information, including recordings of bugged conversations, banking records and DNA," and that police will be "powerless to refuse an order."

Jago Russell, head of the campaign group, said: "Police time could be wasted dealing with unreasonable demands for evidence and the cost to our privacy could be enormous."

"The proposals are also completely one-sided. If you are under suspicion you will have no right to demand information from overseas police to prove your innocence."

FTI also fears that there is a lack of protection for individuals in custody who are transferred to other states for questioning.

The group says that easing police co-operation across the EU makes sense, but only in the context of additional safeguards to protect the fundamental rights of those being investigated, including common basic standards on evidence-gathering across the EU.

Ms May however, denies that the legislation is a threat to civil liberties and said that human rights groups are mistaken.

"The UK would be able to refuse a search request where the crime isn't recognised as a crime here," she insisted in a statement.

"The European Investigation Order will prove to be an invaluable tool in the fight against transnational, international and serious organised crime," she added. "We believe – as do prosecutors and the police – that the European Investigation Order will greatly benefit the UK criminal justice system, without compromising civil liberties."

The European Commission for its part is analysing the proposal for a directive by the member states. It expects to offer its opinion on the matter within the next two months.

"We're keeping an open mind about it, but we must ensure that it contains the fundamental rights safeguards that people need," fundamental rights spokesman Matthew Newman told EUobserver. "

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