12.9. 2019, epravo.cz, Kateřina Holubová, Kateřina Vášová
The European Criminal Records Information System (hereinafter ‘ECRIS’), is an electronic system that enables the rapid and straightforward exchange of information on criminal convictions between the Member States of the European Union (EU). In June this year, a European legislative package came into force comprising a new regulation and a directive, which will expand the scope of the entire ECRIS system in future. This article explains the structure of the new legislation and the implications of the package.
ECRIS: Current legal situation
The introduction of this information system is linked to the expansion of the area of freedom, security and justice within the European Union. In legal practice, the need arose to obtain information on offenders who had also been convicted in another EU Member State. The system enables courts, public prosecutors and competent administrative authorities to obtain the necessary information regarding the conviction of a specific EU citizen via the respective central authorities of each Member State, regardless of the country in which the conviction took place. Since 2012, the Criminal Records Office in the Czech Republic has been the central national authority responsible for cooperation with ECRIS and for the exchange of information on convicted persons. The central authorities of the Member States do not have direct access to the criminal records databases of other states. They transmit the requested information to the relevant Member States upon request. In simple terms, this system can be understood as a network of criminal records databases of all EU Member States.
The ECRIS system is organised on a decentralised basis. All criminal record data is stored exclusively in the national databases of the Member States. The Member State who’s national has been convicted maintains the record of all convictions relating to that person. If a person is convicted who does not hold the nationality of the convicting Member State, that state is obliged to transmit the information regarding the conviction without delay to the Member State of which the convicted person is a national. All information exchange takes place electronically in a standardised European format using tables. In doing so, the Member State always specifies the category of the offence as well as the penalty or sanction imposed.
Currently, all Member States are integrated into the system, although not all states are directly networked with one another.[1] The majority of the information exchanged relates exclusively to EU citizens, with each Member State managing only the data of its own nationals.
ECRIS-TCN: New legislation
The previous legal framework was based on Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information from criminal records between Member States, and on Council Decision 2009/316/JHA of 6 April 2009 establishing the European Criminal Records Information System. On 11 June 2019, Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019, hereinafter referred to as ‘the Regulation’, entered into force. This was followed shortly afterwards by Directive (EU) 2019/884 of the European Parliament and of the Council of 17 April 2019, which must be transposed by Member States by 28 June 2022.
The reason for introducing these new provisions is that, whilst the current legal situation allows for the recording of convicted persons who are third-country nationals or stateless persons, there is no uniform European procedure or mechanism in place to effectively exchange information on these individuals. For this reason, the introduction of a new system, known as ECRIS-TCN, is necessary.
The new package makes it possible to request information from criminal records regarding convictions of third-country nationals for the purposes of criminal proceedings. The requested Member State then transmits information on all convictions recorded in its own criminal records as well as information received from third countries. The new ECRIS-TCN system is intended to contain information on the identity of convicted third-country nationals – alphanumeric data (surname, first name, nicknames, etc.), a photograph of the convicted person (it is up to the Member State to decide whether the storage of this photograph is provided for in its legal system) and details of fingerprints[2] (only if these were taken in the course of the criminal proceedings). The procedure provides that, for each convicted third-country national, the central authorities of the convicting Member State shall create a data record in the central system containing all the requirements set out in Article 5(1) of the Regulation (e.g., first name, surname, nationality, fingerprints).
ECRIS TCN also provides for cooperation with Eurojust, Europol and the Office of the European Public Prosecutor for the purpose of identification by Member States.[3]
The Regulation also provides for the right of third-country nationals to request access to their personal data in ECRIS-TCN, to request the rectification or erasure of such data, and to have the processing of their data restricted in accordance with applicable EU rules. The request may be submitted to the central authority of any Member State. However, if the request is submitted to a Member State other than the convicting Member State, that Member State shall forward the request to the convicting State without delay.[4]
Conclusion
Since 2017, the ECRIS electronic information system, through which EU Member States exchange information on convictions of EU nationals, has been operating smoothly. The new legislative package adopted by the European institutions introduces additional measures relating to the monitoring of convictions of nationals from countries outside the EU. We believe that the expansion of the ECRIS system’s powers, in times of increased migration, can indeed help to better ensure security and the rule of law in the European Union. On the other hand, this places a greater burden on the judicial systems of individual Member States and may be at the expense of the regular work of these institutions. A further disadvantage is the increased cost of technical adjustments required to ensure the proper functioning of the entire information system.
[1] Further information available: https://e-justice.europa.eu/content_criminal_records-95–maximize-cs.do
[2] The extension by the Council of Ministers of Justice and Home Affairs to include fingerprint data took place in 2015 following a series of terrorist attacks in Paris.
[3] Articles 14 and 15 of the Regulation.
[4] Article 25 of the Regulation.