Persons listed in the Schengen Information System may, inter alia, be observed or searched by the police. The numbers of these Article 36 alerts are increasing rapidly and are now being explained for the first time in detail. A new category „inquiry check“ is planned in the new regulation for the police database.
At the end of 2017, the Schengen Information System (SIS II) listed 129,412 persons in accordance with Article 36 of the SIS II Council Decision, compared with 96,108 the year before. 96,108 the article allows, on the one hand, listings for a „discreet check“, which the police officers should proceed discreetly and of which the persons concerned should not know anything. On the other hand, there is also the possiblity for a „specific check“, during which the wanted person, his/her luggage or the vehicle in which he/she travels, are searched.
Warrants under Article 36 may be issued by any EU Member State to provide information on travel and contacts of the observed. Whenever the persons concerned are found at border controls or within the Schengen area, the national central offices, the so-called SIRENEs (in Germany the Federal Criminal Police Office), make a report to the authority issuing the alert. A range of data is transmitted, including the place, time and occasion of the inspection, itinerary and destination, vehicle used, accompanying persons or passengers and items carried. In addition to people, means of transport (cars, ships or boats, airplanes and containers) can also be listed for „discreet checks“ or „specific checks“.
„Specific check“ might be transformed into „discreet check“
Alerts for secret investigations may be issued both by the police authorities (Article 36, paragraph 2) and, if national law so permits, by secret services (paragraph 3) – in the event of a „necessary in order to prevent a serious threat by the person concerned“ or due to „other serious threats to internal or external national security“.
However, not all European secret services are allowed to list people for a „specific check“. In addition to some other EU Member States, this also applies to the German intelligence service, the Federal Intelligence Service and the Military Counter-Intelligence Service. If a secret service of another Member State entered a person for a „specific check“, in Germany this is generally transformed to a „discreet check“.
Alert for a maximum of one year
European police authorities use Article 36 for both security and law enforcement purposes. Initially, a listing could be issued for several offences committed; after an amendment, a single such offence is now sufficient. An Article 36 measure may also be based on an „overall assessment of a person“ if there is a risk of exceptionally serious criminal offences.
According to Article 44 of the Council Decision, alerts for persons must be examined after one year to determine whether they are still necessary. National law may also prescribe time limits. The Hessian Law on Public Security and Order, for example, allows a search for a maximum of one year if the police believe that the persons concerned are guilty of crimes of considerable importance. An extension beyond twelve months requires a court order.
New message „Immediate notification“
Alerts under Article 36 have increased significantly in recent years. Upon request, the German Federal Ministry of the Interior has now shown the figures for „discreet checks“ and „specific checks“ separately. Accordingly, both methods are increasing significantly, but this can be most clearly seen in the „specific checks“.
Since three years, SIS II can me flagged with a request for „immediate reporting“.
The interested authority must give such an „indication“ in the search and will then be informed of a hit as quickly as possible. The new procedure was based on the control of „foreign terrorist fighters“. As of May 31 2015, of the 50,000 or so secret alerts at the time, only 319 had this indication, compared with 880 as of November 30 2015. 6,100 persons had alerted for „immediate reporting“ in September 2016.
New category for „interviews“planned
Analert for a „specific check“ can also be marked as an „activity related to terrorism“, for example to warn the police forces of the dangers of a search. As of July 1, 2018, a total of 9,025 people wanted had this value.
Now the EU interior ministries are discussing the further enhancement of the search method. It is planned to introduce a new category of alert „inquiry check“ Article 36, according to a draft SIS II Council Decision, „on the basis of information or specific questions added to the alert by the issuing Member State“. The interview shall be „carried out in accordance with the national law of the executing Member State“. This new measure goes beyond a discreet check, but is below the threshold of an arrest. This makes it ideally suited for tracking even more people throughout Europe via the SIS II.