Eurojust is allowed to store and process personal and biometric data. As EU Justice Agency it will also be authorised to analyse digital evidence, but it does not actually have a mandate to do so.
The Permanent Representatives of the EU Member States today agreed on a position on the new Eurojust Regulation. The agency is responsible for judicial cooperation in criminal matters and coordinates cross-border investigations. Among the new proposals, Eurojust will be allowed to secure and process evidence on war crimes, genocide and crimes against humanity. The three criminal offences enshrined in the Rome Statute of the International Criminal Court (ICC) are part of Eurojust’s mandate, but the establishment of a biometric database is not yet part of it.
The background to this is the war in Ukraine, on which the agency is to take action following a request from the EU Council of Ministers for “Justice and Home Affairs”. Eurojust is supposed to support European and international courts and the in securing evidence. Because the measures required for this are urgent, the Eurojust Regulation will also be adopted in a two-month urgent procedure. The Commission had presented a corresponding legislative proposal only last week. Four days later, the Member States in the Council dealt with it for the first time.
“Automated data management and storage facility”
Following a joint decision by all EU Member States as well as other partner states, the law enforcement agencies attached to the International Criminal Court (ICC) in The Hague are investigating the incidents in Ukraine. The judicial authorities of Lithuania, Poland and Ukraine are forming a Joint Investigation Team with the Prosecutor’s Office of the ICC, accompanied by Eurojust. In addition, the authorities of some EU member states have begun investigations, including the German Attorney General with the assistance of the Federal Criminal Police Office.
Due to the ongoing hostilities, evidence of war crimes on the territory of Ukraine is volatile and cannot be safely stored there. Therefore, Eurojust is tasked with collecting, storing and preserving it. This includes only digital evidence, including satellite images, photos, videos, sound recordings, DNA profiles and fingerprints. For their storage, Eurojust is to set up a database containing also other personal data.
The new regulation is to include an amended Article 80, allowing the processing of “operational personal data […], in an automated data management and storage facility outside the case management system”. As is usual with such data collections, the European Data Protection Supervisor will be consulted on this, and is expected to issue an opinion within two months.
Competition with Europol
Under the new regulation, it will also be possible for data from non-governmental organisations to be transferred to Eurojust. Numerous NGO’s observe and document human rights violations in Ukraine, and much of the evidence or evidence can be found in social media or satellite images.
The proposal also includes permission to analyse the digital evidence. However, Eurojust has no mandate to do so; strictly speaking, this competence even lies exclusively with the national authorities of the member states.
In addition, Eurojust could come into competition with the tasks of the police agency Europol, which is responsible for the coordination of cross-border investigations and thus the forensic analysis of evidence. Both agencies are to cooperate closely with regard to crimes in Ukraine.
Support for Ukrainian authorities
For the exchange of the collected data, Eurojust is to conclude a separate agreement with the International Criminal Court. It is being debated whether this should be limited to the Ukraine war or also include other geographical regions, such as human rights violations in Syria.
The Prosecutor General of Ukraine is also investigating crimes committed in the context of the Russian war of aggression, and crimes can be reported and documented on a website. The EU Commission has received a list of requests from the supreme judicial authority, including the provision of investigators, forensic experts, equipment for the safe storage of evidence and secure means of communication. Ukraine also receives funding through the Council’s Integrated Political Crisis Response.
In 2014, the External Action Service of the EU installed an Advisory Mission to reform the police, judiciary and intelligence services in Ukraine. In April, the Council amended the mandate of this EUAM Ukraine for the investigation of war crimes and prosecution. This includes consultations and training for the Ukrainian judicial authorities as well as the desired transfer of equipment. Further training is provided by the “Genocide Network” based at Eurojust, for which each EU country has established a national focal point for the exchange of information.
Agreement with EU Parliament
The Council’s position adopted today will now be discussed with the European Parliament. An agreement should be reached in the coming weeks so that the regulation can enter into force as planned after eight weeks.
However, the inclusion of the crime of aggression in the regulation, favoured by some Member States, could jeopardise its quick adoption. This is a comparatively new offence, which is not yet mentioned in any of the previous Eurojust regulations. A corresponding extension would therefore have to be preceded by a political debate.