European police forces and secret services use SIS II for covert surveillance of persons and property. The authorities are informed about suspects’ itineraries and persons accompanying them. The EU interior ministries are now discussing the further expansion of this surveillance method. Hits could be reported to several or all member states.
Secret alerts are being issued for increasing numbers of people in the European Union. This emerged from the Federal Ministry of the Interior’s response to a written inquiry. According to that, 129,412 persons were placed under secret surveillance using the Schengen Information System (SIS II) last year. In 2016, this figure was around 80,000. No information is available regarding the reasons for this sharp increase.
Article 36 of the Council Decision on SIS II permits investigations as a “discreet check”, during which the person for whom an alert has been issued is neither arrested nor searched. This measure can be taken by any EU member state in order to obtain information on the movements and contacts of the persons under surveillance. Whenever the individuals in question are intercepted within the Schengen area, the interested authority is notified.
Secret services are also permitted to issue secret alerts
A “discreet check” relays a set of data, including the place, time and grounds for the check, itinerary and destination, accompanying persons or passengers and items carried. The means of transport used (including vessels, aircraft and containers) is also logged. While persons are unaware that they are under surveillance when intercepted, their items may be covertly searched.
Alerts pursuant to Article 36 fall into two categories in paragraphs 2 and 3 of the Council Decision on SIS II respectively, with either police authorities or secret services being entitled to issue secret alerts. In Germany, the police authorities of the Federation and the Länder (via the Bundeskriminalamt [Federal Criminal Investigation Office] as the SIS central office) apply Article 36 (2) for security purposes and for criminal prosecution.
Many alerts issued by France
In the past, several serious criminal offences were required for an alert to be issued in SIS II. However, following an amendment to the relevant articles, only one such criminal offence now constitutes sufficient grounds. A possible recital also applies if an “overall evaluation of the person concerned” would suggest that exceptionally serious criminal offences could be committed. After all, the event of a “serious threat by the person concerned or other serious threats to internal or external national security” represents further grounds for secret alerts issued using SIS II.
The Schengen countries avail themselves of Article 36 to varying degrees. On 1 December 2015, 44.34 percent of all alerts were issued by France, 14.6 percent by the United Kingdom, 12.01 percent by Spain, 10.09 percent by Italy and 4.63 percent by German authorities.
Further expansion planned
New SIS II alerts requiring immediate reporting were introduced three years ago. The interested authority is notified regarding a hit by the fastest possible means. As of 31 May 2015, only 319 of the approximately 50,000 secret alerts issued at that time were marked with this information, compared with 880 as of 30 November 2015. Alerts requiring immediate reporting were issued for 6,100 people in September 2016.
Until now, only the issuing and controlling authorities have been permitted to communicate with each other regarding a hit. Discussions are ongoing as to whether to forward an Article 36 hit to all or at least selected member states. The Europol police agency is also to be involved in the exchange of information and to search its own databases for alerts (pre-hit) and hits (post-hit). Moreover, the data will also be cross-checked against national and European information systems, including the passenger data system (EU PNR) and the planned biometrics-based Entry/Exit System.
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