1. Introduction
1.1. Procedure
1. Following the reference of
a motion for a resolution entitled “Misuse of the Schengen system
by Council of Europe member States as a politically-motivated sanction”,
![(2)
Doc.14652.](/nw/images/icon_footnoteCall.png)
to the Committee on Legal Affairs
and Human Rights, the committee appointed Ms Olena Sotnyk (Ukraine,
ALDE) as rapporteur on this subject, at its meeting in Paris on
4 March 2019. After Ms Sotnyk’s departure from the Parliamentary
Assembly, the committee appointed Ms Irina V. Rukavishnikova (Russian
Federation, NR) as her successor. Following the exclusion of the
Russian Federation from the Council of Europe, the committee appointed
me as rapporteur, on 4 April 2022.
2. Ms Rukavishnikova’s prepared a revised introductory memorandum,
which was considered by the committee at the meeting of 5 June 2020
(by videoconference). The committee then approved a revised draft questionnaire
to be sent to national delegations through the European Centre for
Parliamentary Research and Documentation (ECPRD) and noted that
the rapporteur’s request for the authorisation of a hearing with
three experts and of a fact-finding visit to Brussels had been approved
in the written consultation procedure, both subject to the availability
of funds. On 14 September 2021, during a meeting held in a hybrid
manner, the committee considered Ms Rukavishnikova’s revised introductory
memorandum and held a hearing with the participation of:
- Ms Evelien Brouwer, Senior Researcher,
Amsterdam Centre for Migration and Refugee Law, Vrije Universiteit
Amsterdam, the Netherlands;
- Ms Nuala Mole, Founder and Senior Lawyer of the Advice
on Individual Rights in Europe Centre, London, United Kingdom;
- Mr Vyacheslav A. Postavnin, Expert on Migration, Head
of the Center for Analytical and Practical Research on Migration
(the Scientific Center for Eurasian Integration), Russian Federation.
3. As regards the fact-finding activities, on 17 November 2021,
Ms Rukavishnikova had an exchange by videoconference with officials
from the European Commission, Directorate General for Migration
and Home Affairs (DG HOME), Unit B3-Schengen Information System,
and Mr Jan-Christoph Oetjen, a member of the European Parliament
(Germany, Renew Europe Group) and its working Group on Schengen
Scrutiny (within the Committee on Civil Liberties, Justice and Home
Affairs – LIBE). On 7-8 February 2022, she paid a fact-finding visit
to Brussels (Belgium), where she met Mr Matthias Oel, European Commission,
DG HOME, Director Schengen, Borders and Innovation, and Mr Jure
Tanko, advisor to Ms Tanja Fajon, member of the European Parliament
(Slovenia, Group of Progressive Alliance of Socialist and Democrats).
The meetings with MEP Fabienne Keller (France, Renew Europe Group),
Ms Clara Guerra, Vice-Chair and Acting Chair of the SIS II Schengen
Coordination Group, and other officials of the European Commission,
Directorate General for Justice and Consumers (DG JUST), Unit B2
– Procedural criminal law, took place by videoconference.
1.2. The
motion for a resolution
4. The signatories of the motion
for a resolution refer to the previous work of the Assembly on this
subject, namely its
Recommendation
1648 (2004) “Consequences of European Union enlargement for freedom
of movement between Council of Europe member States” and
Resolution 1894 (2012) “The inadmissibility of restrictions on freedom of movement
as punishment for political positions”. They stress that since then,
new cases of allegedly politically motivated misuse of the Schengen
system have occurred in several Council of Europe member States,
“which made use of their legal right to control access to their
respective territories in order to deny entry to certain persons”.
Moreover, “this would have had the result of unjustifiably denying
those persons access to the entire Schengen territory”. According
to the movers of the motion, “the Assembly cannot accept that there
are still cases of misuse of the Schengen System” and therefore
should prepare a new report on this issue
2. Issues at stake
5. In its
Recommendation 1648 (2004) “Consequences of European Union enlargement for freedom
of movement between Council of Europe member States” adopted on
30 January 2004,
![(3)
See
report by the Committee on Legal Affairs and Human Rights, rapporteur:
Mr Vitaliy Shybko (Ukraine, Socialist Group), Doc. 9979 rev. of 15 October 2003.](/nw/images/icon_footnoteCall.png)
the Assembly
recalled that “the Schengen system is intended to establish free
movement of persons within a multinational territory (the Schengen
area) without internal borders” and that the Council of Europe,
“since the early years of its existence”’ had also been “active
in pursuing the same aims”, bearing in
mind, in particular all the conventions concerning freedom of movement
of persons adopted under its auspices.
![(4)
Paragraph 6 of the
recommendation.](/nw/images/icon_footnoteCall.png)
The Assembly was firmly opposed to
“(…) any measures which might act to divide the peoples and States
of a continent which has only recently achieved a historic level
of political, social, economic and cultural unity and harmony”.
The Committee of Ministers replied to this recommendation in June
2004 and April 2006.
![(5)
Doc. 10219 of 21 June 2004 and Doc. 10873 of 7 April 2006. In the latter document, the Committee
of Ministers referred extensively to the work of the European Committee
on Legal Co-operation (CDCJ).](/nw/images/icon_footnoteCall.png)
A few years later,
in its
Resolution 1894 (2012) “The inadmissibility of restrictions on freedom of movement
as punishment for political positions” (adopted on 29 June 2012),
![(6)
On the basis of a report
of this committee, rapporteur: Mr Haluk Koç (Türkiye, SOC), Doc. 12943.](/nw/images/icon_footnoteCall.png)
it focused on the link between freedom
of movement of persons and freedom of expression and stressed that
“(…) freedom of movement should not be restricted as a sanction
for the expression of peacefully held political opinions” and that
entries into the Schengen Information System must not be misused
in order to deny persons, who are not nationals of a European Union
member State, access to the Schengen area as a punishment for expressing
such views. It also recalled that the Schengen States had a duty
“to provide for swift judicial or administrative review of any entry
into the Schengen Information System”. Moreover, the issue of targeted
sanctions adopted by the European Union Council or European Union
member States was to a certain extent examined in Assembly
Resolution 1597 (2008) and
Recommendation
1824 (2008) ![(7)
See
also the Committee of Ministers’ reply to this recommendation, Doc. 11690 of 21 July 2008.](/nw/images/icon_footnoteCall.png)
“United Nations
Security Council and European Union blacklists” and in the report
by our former colleague Mr Dick Marty (Switzerland, ALDE).
![(8)
Doc. 11454 of 16 November 2007.](/nw/images/icon_footnoteCall.png)
The Assembly
also examined the issue of the misuse of Interpol’s red notices
in its two Resolutions: 2315 (2019) on “Interpol reform and extradition
proceedings: building trust by fighting abuse” and
2161 (2017) on “Abusive use of the Interpol system: the need for
more stringent legal safeguards”.
6. Since the adoption of the Assembly’s
Resolution 1894 (2012) “The inadmissibility of restrictions on freedom of movement
as punishment for political positions”, many changes to the functioning
of the Schengen Information System (SIS) have been put in place.
New cases of allegedly unjustified alerts have also been reported.
For example, in August 2018, the head of the NGO Open Dialog Foundation,
Lyudmyla Kozlovska, a Ukrainian national, residing in Poland and
married to a Polish citizen, Bartosz Kramek, a civic activist, was denied
entry to Belgium following an alert introduced to the Schengen Information
System (now SIS II) by the Polish authorities. The alert was based
on grounds of national security. Ms Kozlovska, who has since been granted
a five-year residence permit in Belgium and whose name has been
removed from SIS II, claims that the introduction of an alert in
the SIS II was a form of political persecution because of her and
her husband’s civic activities and their criticising the Polish
Government.
![(9)
<a href='about:blank'>https://en.odfoundation.eu/t/bringherback-to-the-eu/.</a>](/nw/images/icon_footnoteCall.png)
Following her appeal, on 16 April
2019, the regional administrative court in Warsaw delivered its
judgment in her case. It considered that the alert was not sufficiently
evidence-based and repealed the decisions of the Head of the Foreigners’
Office.
7. Other cases of allegedly unjustified alerts have also been
reported. In November 2017, a Ukrainian political scientist and
civil servant working on historical memory issues, Mr Svyatoslav
Sheremeta, accused of being “anti-Polish”, was placed on the SIS
list by the Polish authorities and refused entry to Poland, although he
had a German Schengen visa. Despite the Polish authorities’ alert,
he was allowed to enter Germany a few weeks later.
![(10)
<a href='about:blank'>https://wiadomosci.dziennik.pl/swiat/artykuly/563946,swiatoslaw-szeremeta-twierdzi-ze-ominal-zakaz-wjazdu-do-strefy-schengen.html.</a>](/nw/images/icon_footnoteCall.png)
Moreover, in April 2019, Estonia
issued five-year Schengen entry bans against two journalists of
the Russia-1 TV channel after they used hidden cameras to videotape
members of the Jehovah’s Witnesses community in Tallinn. The authorities
believe “that the journalists’ actions were aimed at mocking this
religious group and amounted to religious discrimination which may
develop into incitement of hatred”.
![(11)
<a href='about:blank'>https://news.err.ee/929589/iss-ministry-issued-schengen-entry-ban-against-russia-1-employees.</a>](/nw/images/icon_footnoteCall.png)
Finally, an American pastor known
for “his anti-LGBTI sermons and for questioning evidence of the
Holocaust”, Steven Anderson, has been banned from entering the Schengen
zone by the Netherlands (and also from entering the UK and Ireland).
![(12)
<a href='about:blank'>https://nltimes.nl/2019/05/01/american-hate-preacher-denied-access-netherlands</a> and <a href='about:blank'>https://www.bbc.com/news/world-europe-48252527.</a>](/nw/images/icon_footnoteCall.png)
8. There are also widespread allegations that certain Schengen
Area member States use alerts as a political leverage against third-countries’
nationals in such a way that the actual purpose of issuing alerts against
individuals is in fact unrelated to the stated reasons. In such
cases, issuing an alert against a third-country national on the
basis of “national security” bears no relationship with that individual’s
personal situation or status, but appears to be a hidden sanction
directly targeting the third country of which the person concerned is
a national. Such abusive practices do not only entail a risk of
violating several Council of Europe conventions but are also prone
to undermining the whole SIS system by forcing the executing member
State to unintentionally participate in the issuing State’s hidden
political agenda.
9. In addition to the misuse of the Schengen System for political
reasons, it is observed that the System is used in a way that harms
commercial relations and activities, although some countries have
bilateral or multilateral co-operation on provisions based on and
facilitated by certain agreements with the European Union.
10. Trade fairs and other commercial events are representative
of the business world. However, applications for Schengen visas
made for such purposes might not be found convincing and might be
rejected as ungrounded, although trade fair invitations have been
received, the rents for trade fair venues have been paid, procedures
for booking transportation and accommodation have been completed
and so on. Other problems have been reported as regards getting
an appointment date in relation with a visa application, the excessive number
of documents requested in the application procedure and the high
level of visa application fees.
11. Moreover, in some areas that are not a priori subject to abuses,
like commercial co-operation, some steps taken on the basis of international
agreements might limit a systematic refusal to grant visas, unless political
concerns have been raised.
12. Although States, in principle, have the sole competence in
determining the conditions of entry of other countries’ citizens
into their territory, they are at the same time subject to obligations
stemming from international treaties on human rights protection
and the rule of law, when they take decisions on such matters. Excessively
long bureaucratic procedures, complicated application forms, long
queues at diplomatic representations, exaggerated conditionality
on the applicants’ financial situation, interrogative questioning
and unexplained visa denials curtail the cross-border movement of
persons.
13. These practices erect a barrier to those who would like to
participate in cultural, social and scientific activities in Schengen
Area member States, prevent them from visiting their relatives residing
there and hamper free trade. In addition, they constitute an obstacle
to the achievement of a greater unity between Council of Europe
member States and prevent them from safeguarding and realising its
ideals and principles.
14. Moreover, in accordance with international conventions which
enshrine the right to freedom of movement and especially the European
Convention on Human Rights (ETS No. 5), it is necessary to prevent the
abuse of the principle of State sovereignty as regards regulating
entry into its territory on the basis of political motives. In this
context, it would be beneficial to include special provisions in
legislation of States that refuse to grant visas for inappropriate
reasons, including political ones. Since national legal remedies
must be first exhausted, it is considered that the lack of such
regulations in the legal systems of the Schengen Area member States
hampers the effectiveness of the judicial proceedings.
15. In my report, I will therefore examine the current functioning
of the SIS, with a special focus on alerts introduced to it in order
to prevent the entry of third-country nationals, as well as on European
Union member States’ leeway in this respect and the implications
of the arbitrary use of SIS alerts on human rights protection. Furthermore,
I will also focus on inefficient and inappropriate usage of SIS
alerts that could disrupt the enjoyment of freedom of movement and
cause severe obstacles in particular to businesses and the commercial activities
of some stakeholders. On the basis of this analysis, I will also
elaborate further recommendations on how to prevent the misuse of
alerts, especially if that leads to human rights violations.
3. Freedom
of movement in the legal framework of the Council of Europe
16. Under public international
law, notwithstanding norms on asylum, States can determine the terms
and conditions under which non-nationals (“aliens”) are admitted
to their territory. Therefore, there is no right to enter and to
remain in a State of which the individual is not a national, which
the European Court of Human Rights has emphasised in its case law
on very many occasions.
![(13)
<a href='https://fra.europa.eu/en/publication/2014/handbook-european-law-relating-asylum-borders-and-immigration'>Handbook
on European law relating to asylum, borders and immigration</a>, 2015, p. 26. See, for example, Vilvarajah and
Others v. UK, application No. 13163/87, judgment of 30
October 1991, para. 102.](/nw/images/icon_footnoteCall.png)
17. The Council of Europe has, since the early years of its existence,
been active in the domain of free movement of persons. A few conventions
in this field have been adopted: the 1955 European Convention on Establishment
(
ETS
No. 19); the 1957 European Agreement on Regulations Governing
the Movement of Persons between Member States of the Council of
Europe (
ETS
No. 25); the European Convention on the Legal Status of Migrant
Workers (
ETS
No. 93); and the European Outline Convention on Transfrontier
Co-operation between Territorial Communities or Authorities (
ETS
No. 106). However, with the exception of the last convention,
these treaties have been ratified by a small number of member States.
In particular, the European Agreement on Regulations governing the
Movement of Persons between Member States of the Council of Europe,
which is intended to facilitate personal travel, has been ratified
by only seventeen member States
![(14)
<a href='https://www.coe.int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=025'>www.coe.int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=025</a>.](/nw/images/icon_footnoteCall.png)
and the monitoring of its implementation
was abandoned in 1991 before many current member States joined the
Council of Europe.
![(15)
For
more information, see Mr Koç’s report, Doc. 12943 op. cit., para. 14.](/nw/images/icon_footnoteCall.png)
18. The European Convention on Human Rights requires its States
Parties to “secure” the rights and freedoms guaranteed therein to
“everyone within their jurisdiction”, including foreigners applying
for a visa or seeking entry at a border (Article 1). However, it
does not provide for a right to entry to a specific State (including
a specific member State of the Council of Europe). Article 2 of
Protocol No. 4 (ETS No. 46) to the Convention enshrines the right
to freely move
within a country
once lawfully there and the right to leave any country. It does
not, however, deal with the right of entry
into a
country. Besides, not all member States of our Organisation have
acceded to this Protocol.
![(16)
42
of the 46 have ratified the Protocol, see: <a href='about:blank'>
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=046&CM=8&DF=09/01/2012&CL=ENG</a>.](/nw/images/icon_footnoteCall.png)
Moreover, the European Court of
Human Rights has held that decisions regarding the entry, residence
and expulsion of aliens do not fall within the scope of the “fair
trial” guarantee of Article 6 (1) of the Convention, as they do
not concern civil rights or obligations or a criminal charge.
![(17)
See, for example, Maaouia v. France, application No.
39652/98, judgment of 5 October 2000 (Grand Chamber), para. 40.](/nw/images/icon_footnoteCall.png)
19. Member States’ right to determine aliens’ entry into their
territory can be limited in certain circumstances for family reasons.
The Court has held that, in specific situations, persons could rely
on Article 8 of the Convention, enshrining the right to respect
for private and family life, in order to enter and reside in a member State
for the purposes of joining their family.
![(18)
See, for example, Sen v. Netherlands, application
No. 31465/96, judgment of 21 December 2001.](/nw/images/icon_footnoteCall.png)
20. The Court has not had many occasions to examine cases concerning
Schengen blacklisting of third-country nationals wishing to enter
the territory of European Union member States. In the case of
S.N. and T.D. v. Latvia, which concerned
the blacklisting and expulsion from Latvia of two Russian nationals
considered to be a threat to national security and public order
and safety, the former issue was not examined on the merits because
of non-exhaustion of domestic remedies.
![(19)
See, for example, S.N. and T.D. v. Latvia, application
No. 5794/13, decision of 6 December 2016, para. 85.](/nw/images/icon_footnoteCall.png)
In
the case of
Dalea v. France ![(20)
Dalea
v. France, application No. 964/07, decision of 2 February
2010, para. 2.](/nw/images/icon_footnoteCall.png)
a Romanian national who had business
connections in France and Germany complained of a violation of Article
8 (under the right to respect for a private life) following his
listing in the SIS by France. The complaint was found to be inadmissible as
being manifestly ill-founded due to France’s wide margin of appreciation
in relation to controlling the entry of non-nationals into its territory.
4. The
functioning of the Schengen Information System
4.1. The
Schengen area
21. The free movement of persons
is one of the four freedoms of the European Union.
![(21)
Article 3(2) Treaty
of the European Union (TEU) and provisions of Title IV of the Treaty
on the Functioning of the European Union (TFEU).](/nw/images/icon_footnoteCall.png)
It
is a right guaranteed by the European Union treaties to all its
citizens entitling them to travel, work or live in any European
Union member State. Moreover, Article 45 of the
Charter
of Fundamental Rights of the European Union provides for freedom of movement within the territory
of the member States for European Union citizens and legally resident
third country nationals. This freedom was further developed by enabling
European Union citizens to cross internal borders without being
subjected to border checks following European Union member States’
co-operation in relation with the “Schengen area”.
22. The establishment of the Schengen area dates back to the Schengen
Agreement adopted on 14 June 1985 by France, Germany and the Benelux
countries with the aim of gradually abolishing controls at the common
borders and strengthening control of the external borders. On 19
June 1990, the same States also adopted the Convention implementing
the Schengen Agreement (“the Schengen Convention”). In view of the possible
security deficit resulting from the abolition of border controls,
this convention, which came into force on 26 March 1995 for the
original signatory countries, plus Spain and Portugal, introduced
compensatory measures with regard to asylum and co-operation between
police, judicial and customs authorities. It also provided for the
creation of the Schengen Information System, which allowed the competent
national authorities to access data on individuals who were not
entitled to enter the free movement area, commonly referred to as
the “Schengen Area”. Today, the Schengen Area encompasses most European
Union member States. All European Union member States, except for
Bulgaria, Croatia, Cyprus, Ireland and Romania are part of the Schengen
Area.
![(22)
However,
Bulgaria, Croatia and Romania are now in the process of joining
it.](/nw/images/icon_footnoteCall.png)
Non European Union members, Iceland, Norway,
Switzerland and Liechtenstein, are also part of the Schengen Area
and are connected to the SIS. This border-free area guarantees free
movement to many third-country nationals (including tourists, businessmen
and other persons legally residing in European Union member States)
without requiring multiple visas to travel within the Schengen zone,
in addition to more than 400 million European Union citizens.
23. Initially, States’ co-operation in relation with the Schengen
Area developed in a purely intergovernmental form, outside the framework
of the founding treaties of the European Union, up until the time
the Schengen Agreement and the Schengen Convention were written
into a Protocol to the Treaty of Amsterdam, which entered into force
on 1 May 1999 and created an “area of freedom, security and justice”.
![(23)
See also Council Decision
1999/435/EC of 20 May 1999 concerning the definition of the Schengen
acquis for the purpose of determining, in conformity with the relevant
provisions of the Treaty establishing the European Community and the
Treaty on European Union, the legal basis for each of the provisions
or decisions which constitute the acquis.](/nw/images/icon_footnoteCall.png)
Until
the Treaty of Lisbon entered into force on 1 December 2009, certain
Schengen co-operation related policies such as police and judicial
co-operation and security measures remained under intergovernmental
governance. Since then all aspects of Schengen co-operation have
fallen under the European Union regime (former “first pillar”) and
the measures taken in this context are now subject to the scrutiny
of the Court of Justice of the European Union.
![(24)
See, in particular,
Article 77 of the TFEU.](/nw/images/icon_footnoteCall.png)
Moreover, several articles
of the Schengen Convention have been replaced by European Community
or European Union legal acts that participating non-European Union
members (such as Iceland, Norway, Switzerland and Liechtenstein)
have had to accept.
![(25)
E.
de Capitani, The Schengen system after
Lisbon: from cooperation to integration, ERA Forum (2014),
published online on 21 May 2014, p. 108.](/nw/images/icon_footnoteCall.png)
European
Union candidate countries are required to adopt the
Schengen acquis.
![(26)
Which was defined in
Council Decisions 1999/435/EC and 1999/436/EC of 20 May 1999 and
includes mainly the Schengen Agreement, the Schengen Convention
and agreements accession to the Schengen Convention by Italy, Spain, Portugal,
Greece, Austria, Denmark, Finland and Sweden.](/nw/images/icon_footnoteCall.png)
4.2. The
Schengen Information System
4.2.1. General
functioning
24. The lack of controls on internal
borders between Schengen Area States is compensated for by stricter controls
on the external borders and by the imposition of various preventative
measures. The key principle of the Schengen Area is that while border
controls are largely abolished within it, the external border of
the area is carefully policed. The Schengen Information System is
a key tool in this respect. It is a database that allows relevant
officials (such as the police and border guards) across the Schengen
area to access and consult alerts about wanted or missing persons
and objects, as well as persons who are subject to entry bans.
![(27)
For more information: <a href='https://www.europarl.europa.eu/thinktank/en/document/EPRS_BRI(2017)599342'>European
Parliament briefing, Use of the Schengen Information System for
the return of illegally staying third-country nationals,</a> 18 October 2018.](/nw/images/icon_footnoteCall.png)
25. The SIS II, a more advanced version of the SIS, became operational
on 9 April 2013. SIS II has enhanced functionalities, such as the
possibility to use biometrics, new types of alerts and the possibility
to link different alerts and a facility for direct queries. Its
legal basis is currently defined by Regulation (EC) No 1987/2006
called “SIS II Regulation”,
![(28)
Regulation
(EC) No 1987/2006 of the European Parliament and of the Council
of 20 December 2006 on the establishment, operation and use of the
second generation Schengen Information System (SIS II). To be soon
replaced by Regulation (EU) 2018/1861 on the establishment, operation
and use of the SIS in the field of border checks and amending the
Convention implementing the Schengen Agreement, and amending and
repealing Regulation (EC) No 1987/2006.](/nw/images/icon_footnoteCall.png)
Regulation
(EC) No 1986/2006 concerning alerts on vehicles
![(29)
Regulation (EC) No
1986/2006 of the European Parliament and of the Council of 20 December
2006 regarding access to the Second Generation Schengen Information
System (SIS II) by the services in the Member States responsible for
issuing vehicle registration certificates.](/nw/images/icon_footnoteCall.png)
and
Council Decision 2007/533/JHA (“SIS II Decision”).
![(30)
Council Decision 2007/533/JHA
of 12 June 2007 on the establishment, operation and use of the second
generation Schengen Information System (SIS II).](/nw/images/icon_footnoteCall.png)
On
28 December 2018, three new regulations were added to the legal
framework governing the SIS II.
![(31)
Regulation (EU) 2018/1860
on the use of the Schengen Information System for the return of
illegally staying third-country nationals; Regulation (EU) 2018/1861
on the establishment, operation and use of the SIS in the field
of border checks and amending the Convention implementing the Schengen
Agreement, and amending and repealing Regulation (EC) No 1987/2006;
Regulation (EU) 2018/1862 on the establishment, operation and use
of the SIS in the field of police cooperation and judicial cooperation
in criminal matters, amending and repealing Council Decision 2007/533/JHA,
and repealing Regulation (EC) No 1986/2006 of the European Parliament
and of the Council and Commission Decision 2010/261/EU.](/nw/images/icon_footnoteCall.png)
Their
aim is to strengthen the current system by including new alerts on
return decisions, requiring compulsory inclusion of entry bans in
the system and introducing stronger data protection rules.
26. On May 2019, the EU adopted Regulation 2019/817,
![(32)
Regulation (EU) 2019/817
of the European Parliament and of the Council of 20 May 2019 on
establishing a framework for interoperability between EU information
systems in the field of borders and visa and amending Regulations (EC)
No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU)
2018/1726 and (EU) 2018/1861 of the European Parliament and of the
Council and Council Decisions 2004/512/EC and 2008/633/JHA.](/nw/images/icon_footnoteCall.png)
which
applies to information systems in the field of borders and visa,
and Regulation 2019/818 on systems in the field of police and judicial
co-operation, asylum and migration.
![(33)
Regulation (EU) 2019/818
of the European Parliament and of the Council of 20 May 2019 on
establishing a framework for interoperability between EU information
systems in the field of police and judicial cooperation, asylum
and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862
and (EU) 2019/816.](/nw/images/icon_footnoteCall.png)
Both regulations aim at providing
for easier information sharing and improving security in the European
Union by establishing interoperability and multipurpose use of European
Union large-scale databases so as to create a European-wide search
portal, allowing competent authorities to search multiple information
systems simultaneously, using both biographical and biometric data.
Such interoperability structure is thus based on a network or a
mechanism through which different authorities can check whether
information on a particular individual is available in one of the
European Union databases. The databases that can be connected via
interoperability include systems such as SIS II, Eurodac, and Visa
Information System as well as the European Police Office (Europol)
databases.
27. The SIS II consists of three components: 1) a central system;
2) national systems in each member State that communicate with the
central system,
![(34)
Here
is the <a href='https://edps.europa.eu/data-protection/european-it-systems/schengen-information-system_en'>list
of such authorities</a>.](/nw/images/icon_footnoteCall.png)
and 3) a communication infrastructure.
Member States can enter, update, delete and search data via their
national systems and exchange information via the supplementary information
request at the national entry bureaux (SIRENE). Member States are
responsible for setting up, operating and maintaining their national
systems and national SIRENE bureaux.
4.2.2. Alerts
in the SIS II
28. One of the ways in which the
external borders of the Schengen area can be controlled is through
the issuing of alerts in the SIS II against individuals and objects.
![(35)
See Article 96 of the
Schengen Convention (concerning alerts on persons).](/nw/images/icon_footnoteCall.png)
As
regards alerts against individuals, according to Article 3 a) of
the SIS II Regulation, an “alert” is “a set of data entered in SIS
II allowing the competent authorities to identify a person with
a view to taking specific action”.
![(36)
The definition of “alert”
included in Article 3(1)(a) of the SIS II Decision also refers to
an object.](/nw/images/icon_footnoteCall.png)
Before issuing an alert, member States shall
determine whether the case is adequate, relevant and important enough
to warrant entry of the alert in the SIS II (Article 21 of the SIS
II Regulation). An alert may not be entered without the following
information concerning the given person: his/her surname(s) and
forename(s), name(s) at birth and previously used names and any
aliases, sex, a reference to the decision giving rise to the alert
and action to be taken (Articles 23(1) and 20(2) of the SIS II Regulation).
29. SIS alerts cover the following categories of persons:
- third-country nationals to be
refused entry into or stay within the Schengen Area (Article 24
of the SIS II Regulation);
- persons for whom a European Arrest Warrant was issued
or who are wanted for arrest for extradition purposes, entered at
the request of the judicial authority of the issuing member State
(Article 26 of the SIS II Decision);
![(37)
In practice, such alerts
are inserted in the SIS II if the person subject to an European
Arrest Warrant cannot be located.](/nw/images/icon_footnoteCall.png)
- missing persons (adults and minors) (Article 32 of the
SIS II Decision);
- persons sought, summoned or witnesses in connection with
criminal judicial proceedings (Article 34 of the SIS II Decision);
- persons for discreet or specific checks, including for
the purposes of prosecuting criminal offences and preventing threats
to public or national security (Article 36 of the SIS II Decision).
![(38)
In addition, Article
40 of Regulation (EU) 2018/1862 introduces a new category of alerts
“on unknown wanted persons for the purposes of identification under
national law”.](/nw/images/icon_footnoteCall.png)
4.2.3. Alerts
based on Article 24(1) of the SIS Regulation
30. For the purposes of my report,
I plan to cover primarily the first category of persons. Article
24(1) of the SIS II Regulation stipulates that the data concerning
such persons “shall be entered on the basis of a national alert
resulting from a decision taken by the competent administrative
authorities or courts in accordance with the rules of procedure
laid down by national law taken on the basis of an individual assessment”
![(39)
Article 24.1 a) of
Regulation (EU) 2018/1862 stipulates that the individual assessment
includes “an assessment of the personal circumstances of the third-country
national concerned and the consequences of refusing him or her entry
and stay”.](/nw/images/icon_footnoteCall.png)
and that “appeals against these decisions
shall lie in accordance with national legislation.”
![(40)
According to Article
24.4, second sentence, of Regulation (EU) 2018/1862, the appeal
shall be conducted “in accordance with Union and national law, which
shall provide for an effective remedy to be requested before a court”.](/nw/images/icon_footnoteCall.png)
An
alert shall be entered where the national body’s decision is based
on a threat to public policy or public security or to national security which
the presence of the third-country national in question in the territory
of a member State may pose. This might be, in particular, the case
of a third-country national who has been convicted in a member State
of an offence carrying a penalty involving deprivation of liberty
of at least one year or in respect of whom there are serious grounds
for believing that he/she has committed a serious criminal offence
![(41)
Article 24.1 b) of
Regulation (EU) 2018/1862 specifies that this may be in particular
a “terrorist offence”.](/nw/images/icon_footnoteCall.png)
or in respect of whom there
are clear indications of an intention to commit such an offence
in the territory of a member State (Article 24(2) of the SIS II
Regulation). An alert may also be entered if the third-country national
has been subject to a measure involving expulsion, refusal of entry
or removal which has not been rescinded or suspended, that includes
or is accompanied by a prohibition on entry or, where applicable,
a prohibition on residence, based on a failure to comply with national
regulations on the entry or residence of third-country nationals
(Article 24(3) of the SIS II Regulation).
![(42)
See the Return Directive
2008/115/EC.](/nw/images/icon_footnoteCall.png)
31. Article 25 (1) of the SIS II Regulation refers to alerts concerning
third-country nationals who benefit from the right of free movement
within the European Union, within the meaning of
Directive 2004/38/EC on the right of citizens of the Union and their family
members to move and reside freely within the territory of the member States
and stipulates that such alerts shall be in conformity with the
rules adopted in the implementation of that directive. If there
is a hit on an alert concerning such a third-country national, the
member State executing the alert shall consult immediately the issuing
member State in order to decide without delay on the action to be taken
(Article 25 (2) of the SIS II Regulation). Alerts issued in relation
with entry bans based on legal acts adopted by the Council of the
European Union, including measures implementing travel bans issued
by the United Nations Security Council, fall within the scope of
Article 26 of the SIS II Regulation. The member State responsible
for entering, updating and deleting these alerts on behalf of all
member States shall be designated at the moment of the adoption
of the relevant measure (Article 26 (3) of the SIS II Regulation).
32. Article 6 (1) (d) of the
Schengen
Borders Code ![(43)
Regulation
(EU) 2016/399 of the European Parliament and of the Council of 9
March 2016 on a Union Code on the rules governing the movement of
persons across borders (Schengen Borders Code). It is now under
revision.](/nw/images/icon_footnoteCall.png)
stipulates explicitly that third-country
nationals for whom an alert has been issued in the SIS for the purpose
of refusing entry do not fulfil the conditions for entering the
territory of the European Union member States. However, a derogation
has been foreseen from this rule: a third-country national may be
authorised by a member State to enter its territory on humanitarian grounds,
on grounds of national interest or because of international obligations.
If he/she is subject of an alert in the SIS, the member State authorising
him/her to enter its territory shall inform the other member State accordingly
(Article 6(5)(c)).
33. Access to data entered in SIS II is given to national authorities
responsible for border control, police, customs, visa and vehicle
registration and, by extension, to national judicial authorities
when this is necessary for the performance of their tasks.
![(44)
See, in particular,
Article 27 of the SIS II Regulation.](/nw/images/icon_footnoteCall.png)
A list of
competent authorities which have access to the SIS II is published annually
in the Official Journal of the European Union.
![(45)
<a href='https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2021.287.01.0001.01.ENG&toc=OJ%3AC%3A2021%3A287%3ATOC'>C-287/1</a> of 16 July 2021.](/nw/images/icon_footnoteCall.png)
Europol and the
European Union’s Judicial Cooperation Unit (Eurojust) have limited
access rights for performing certain types of queries. SIS checks
are mandatory for the processing of short-stay visas, for border
checks for third-country nationals and, on a non-systematic basis,
for European Union citizens and other persons enjoying the right
of free movement. Every police check on the territory of a Schengen
State should include a check in SIS II.
![(46)
European Parliament
briefing, supra note 28.](/nw/images/icon_footnoteCall.png)
34. According to Article 29(1) of the SIS II Regulation, alerts
shall be kept “only for the time required to achieve the purposes
for which they were entered”. A member State issuing an alert shall,
within three years of its entry, review the need to keep it (Article
29 (2)), but it may also do so earlier or, in some circumstances, keep
the alert longer (Article 29 (3) and (4)). If no extension has been
communicated to the central system, alerts are automatically erased
after the three-year period (Article 29 (5)). Only the issuing member
State is authorised to modify or delete the alert. It is also responsible
for ensuring that the data are accurate, up-to-date and entered
into SIS II lawfully (Article 34 of the SIS II Regulation). If another
member State has evidence suggesting that an item of data is factually
incorrect or has been unlawfully stored, it shall inform the issuing member
State according to the procedure foreseen in Article 34 (3) and
(4) of the SIS II Regulation.
35. In accordance with data protection principles,
![(47)
Unlike the Convention,
the European Union Charter of Fundamental Rights explicitly guarantees
data protection rights: “Article 8: Everyone has the right to the
protection of personal data concerning him or her. Such data must
be processed fairly for specified purposes and on the basis of the
consent of the person concerned or some other legitimate basis laid
down by law.” See also the <a href='https://eur-lex.europa.eu/legal-content/EN/AUTO/?uri=celex:31995L0046'>European
Parliament and Council Directive 95/46/EC of 24 October 1995 on
the protection of individuals with regard to the processing of personal
data and on the free movement of such data.</a>](/nw/images/icon_footnoteCall.png)
all individuals whose data are processed
in SIS II enjoy the following rights: the right of access to data
relating to them stored in SIS II; the right to correction of inaccurate
data or deletion when data have been unlawfully stored and the right
to bring proceedings before the courts or competent authorities
to obtain correction or deletion of data or to obtain compensation.
![(48)
See Articles 41 and
43 of the SIS II Regulation. For more information see SIS II Supervision
Coordination Group, <a href='https://edps.europa.eu/system/files/2022-01/15-10-07_sis_ii_guide_of_access_updated_2015_en.pdf'>The Schengen
Information System. A Guide for Exercising the Right of Access</a>, which describes
the procedures before national data protection authorities.](/nw/images/icon_footnoteCall.png)
As regards
the first right, any person wishing to find out about information
relating to him or her stored in SIS II has the right to make a
request in this respect, as provided for by the national law of
the member State before which they invoke that right. Access may
only be refused when “this is indispensable for the performance
of a lawful task related to an alert and for protecting the rights
and freedoms of other people” (Article 41 (1) and (4) of the SIS
II Regulation). This right of access is direct in some member States
(namely the request has to be made directly to the authorities processing
the data) or indirect in others (namely the person has to apply
to the national data protection authority of the State where the
request is submitted).
![(49)
<a href='https://edps.europa.eu/system/files/2022-01/15-10-07_sis_ii_guide_of_access_updated_2015_en.pdf'>The
Schengen Information System. A Guide for Exercising the Right of
Access</a>, op. cit., p.
8.](/nw/images/icon_footnoteCall.png)
Besides that, any person has the right to
have factually inaccurate data relating to them corrected or unlawfully
stored data deleted (Article 41 (5)). If individuals exercise one
or both of these two rights, they shall be provided the information
as soon as possible and in any event not later than 60 days from
the date of request for access (Article 41 (6)). They shall also
be informed about the follow-up given to the exercise of their rights
of correction or deletion as soon as possible and in any event not
later than three months from the date of their application (Article
41 (7)). Third-country nationals who are subject to an alert shall
be informed in accordance with the European Union legislation on
data protection; this shall be done in writing and a copy of or
a reference to the national decision giving rise to the alert shall
be provided. However, if the national law allows for the restriction
of the right to information, in particular in order to safeguard
national security, defence, public security and the prevention, investigation,
detection and prosecution of criminal offences the information shall
not be provided (Article 42). Moreover, individuals may bring actions
before the courts or other authorities competent under the national
law to access, correct, delete or retrieve information, or to obtain
compensation in connection with an alert relating to them (Article
43 (1) of the SIS II Regulation) and member States “undertake mutually
to enforce final decisions” handed down by the said courts or authorities
(Article 43 (2)).
4.2.4. European
Union bodies responsible for the management and oversight of SIS
II
36. The European Union Agency for
large-scale IT systems in the area of freedom, security and justice
(
eu-LISA), which was established in 2011 and became operational
on 1 January 2012, is responsible for the operational management
of the central system and the communication infrastructure. It ensures
the continuous, uninterrupted exchange of data between national
authorities 24 hours a day, 7 days a week, and is responsible for
monitoring the performance of the system as well as providing training
on SIS II to national operators, SIRENE staff and Schengen evaluators.
It also ensures the operational management of other large-scale
European Union information systems: the Visa Information System
and Eurodac (dealing with the management of European asylum applications),
as well as of the ones foreseen to enter into operation in the near
future (the Entry/Exit System – EES, the European Travel Information
and Authorisation System – ETIAS and the European Criminal Records
Information System – Third Country Nationals – ECRIS-TCN). The headquarters
of eu-LISA are in Tallinn (Estonia), whilst its operational centre
is in Strasbourg.
37. The European Commission is responsible for the general oversight
and evaluation of the system (the Schengen Evaluation Mechanism
– SEM)
![(50)
Put in
place by the Council of the European Union and the European Parliament
Regulation 1053/2013/EU establishing the Schengen evaluation and
monitoring mechanism. It is shared between the European Commission
and member States’ experts and assesses the implementation measures
in a number of areas, including the SIS. The SEM is now under revision.
In November 2020, the European Commission adopted its latest report
on the functioning of the SEM (for 2015-2019), <a href='https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52020DC0779'>COM(2020)
779 final.</a> See European Parliamentary Research Service’s briefings:
Revision of the Schengen Evaluation and Monitoring Mechanism. Regulation
(EU) No 1053/2013, PE 662.633, May 2021, and Improving the Schengen
evaluation and monitoring mechanism, PE 964.228, October 2021, and
European Parliament, Committee on Civil Liberties, Justice and Home
Affairs (rapporteur: Tanja Fajon), Annual Report on the Functioning
of the Schengen Area, 2019/2196(INI), 1 June 2021.](/nw/images/icon_footnoteCall.png)
and
for the adoption of implementing measures.
![(51)
Since 2014, the European
Commission (DG HOME B3) received a total of 18 “information requests”
concerning the functioning of the SIS II in general (including six
in 2021).](/nw/images/icon_footnoteCall.png)
The European Data Protection Supervisor
(EDPS) monitors the application of the data protection rules for
the central system, while the national data protection authorities
supervise the application of the data protection rules in their respective
countries (see, in particular Articles 44 and 45 of the SIS II Regulation).The
Schengen Information System II Supervision Coordination Group (“
SIS
II SCG”), a body composed of representatives of the national data
protection authorities of the member States and the EDPS, ensures
co-ordinated supervision in the area of personal data protection
of SIS II. It meets at least twice a year to: share experience,
discuss problems regarding the interpretation or the application
of the SIS II legal framework, analyse difficulties regarding the supervision
or the exercise of the rights of data subjects, assist each other
when carrying out audits and inspections and draw up harmonised
proposals for joint solutions and promote awareness of data protection rights.
![(52)
<a href='https://edps.europa.eu/data-protection/european-it-systems/schengen-information-system_en'>Schengen
Information System, European Data Protection Supervisor (europa.eu)</a>. The SIS II Supervision Coordination Group was set up
under Article 46 of the SIS II Regulation and Article 62 of the
SIS II Decision.](/nw/images/icon_footnoteCall.png)
As regards the European Parliament,
although it has no specific role under the SIS II legal framework, it
plays an active role in monitoring the application of the Schengen acquis.
Its Working Group on Schengen Scrutiny (established within the LIBE
Committee) liaises with the European Commission and the Council
at the relevant stages of the evaluation and monitoring process.
38. According to eu-LISA, in 2020, member States performed on
average more than 10 million searches per day in SIS II, compared
with 18 million per day in 2019.
![(53)
<a href='https://edps.europa.eu/data-protection/european-it-systems/schengen-information-system_en'>Eu-LISA,
SIS II – Annual Statistics, Factsheet. March 2021.</a>](/nw/images/icon_footnoteCall.png)
The decrease may well be due to reduced
cross-border traffic during the Covid-19 pandemic. In the whole
of 2020, SIS II was accessed over 3.7 billion times by all member
States (a 44% decrease from 2019).
![(54)
Ibidem.](/nw/images/icon_footnoteCall.png)
On
31 December 2020, there were a total of 93.4 million alerts stored
in SIS II, out of which alerts on persons represented 1% (964 720).
Italy, France, Germany and Spain issued the highest number of all
SIS II alerts. Out of 964 720 alerts on persons, 519 530 concerned
third country nationals to be refused entry into or stay within
the Schengen area (Article 24 of the SIS II Regulation).
![(55)
Eu-LISA, SIS II – 2020
Statistics, March 2021, pp. 10, 12-13.](/nw/images/icon_footnoteCall.png)
Such alerts
generated 47 583 hits.
![(56)
Ibidem,
p. 14.](/nw/images/icon_footnoteCall.png)
4.2.5. Practice
of the Schengen area member States as regards the use of alerts
based on Article 24(1) of the SIS II Regulation
39. In order to collect information
on the practice of the Schengen area member States as regards their
use of alerts based on Article 24(1) of the SIS II Regulation, I
had sent, through the ECPRD, a questionnaire to national delegations.
The 19 replies received in response to it are summarised in more
detail in the Appendix to this report. It results therefrom that
the decisions on entering an alert in the SIS II because of an alleged threat
to public policy, public security, or national security are usually
taken by the police, border control authorities or administrative
bodies. A person subject to an alert usually has access to a remedy
before the authority that has issued the alert and/or to a court.
Some delegations also provided information about the possibility
of requesting access to data relating to the alert and the correction
of stored data before the data protection body.
4.2.6. Areas
of possible misuse of the SIS II
40. As indicated by Ms Evelien
R. Brouwer at the hearing of 14 September 2021, the possible misuse
of the Schengen Information System in relation to alerts might be
related to five issues: 1) the respect of obligations of the issuing
State when reporting a third country national as inadmissible in
the SIS, 2) ensuring transparency and effective monitoring system
as regards the interoperability of large-scale information systems,
including SIS II; 3) guaranteeing that the SIS is not used by any
member State as a hidden political sanction against any third country
on issues unrelated to the security of the Schengen Area; 4) the
respect of obligations of the executing State when deciding on a
SIS alert and 5) the existence of the right to an effective remedy.
41. Concerning the obligations of the issuing State, the main
problem might be related to the possibility to issue an alert on
grounds of a threat to public policy or public security or to national
security, including a situation where there are “serious grounds
for believing that the third country national has committed a serious criminal
offence” or if “there are clear indications of an intention to commit
such an offence in the territory of a member State” (Article 24(2)
of the SIS II Regulation). This gives national authorities much
leeway. However, the national authorities’ discretionary power is
subject to two important conditions: firstly, before issuing a SIS alert,
a member State must determine whether the case is “adequate, relevant,
and important enough” (the principle of proportionality) and, secondly,
the alert must follow an individual assessment (Articles 21 and
24(1) of the SIS II Regulation).
![(57)
The Court of Justice
of the European Union, when dealing with a restriction measure taken
in respect of illegally staying third-country nationals on the basis
of a “risk to public policy” in the context of the Return Directive,
stressed that States are obliged to fulfill these two requirements
and respect fundamental freedoms; see Z.
Zh. v. Staatssecretaris voor Veiligheid en Justicie and Staatssecretaris voor Veiligheid en Justicie
v. I. O., case C-554/13, judgment of 11 June 2015, para.
50.](/nw/images/icon_footnoteCall.png)
Furthermore, the issuing State must inform
third-country nationals about the fact they are reported into SIS
and although this right to information can be restricted under some
conditions (see above-mentioned Article 42 of SIS II Regulation),
both the European Court of Human Rights
![(58)
See, for example, Al-Nashif v.
Bulgaria, application No. 50963/99, judgment of 20 June
2002, para. 123 (as regards the use of and access to secret information
in migration cases) or Klass and others
v. Germany, application No. 5029/71, judgment of 6 September
1978 (as regards surveillance and the use of personal data), para.
42.](/nw/images/icon_footnoteCall.png)
and the Court of Justice of the European
Union
![(59)
See, for
example, ZZ v. Secretary of State for
the Home Department, case C-300/11, judgment (Grand Chamber)
of 4 June 2013, para. 51 (as regards the use of and access to secret
information in migration cases) and Digital
Rights Ireland Ltd. v. Minister
for Communications, Marine and Natural Resources etc.,
cases C-293/12 (joined with C-594/12), judgment (Grand Chamber)
of 8 April 2014 (as regards the use of personal data), para. 52.](/nw/images/icon_footnoteCall.png)
have
found that such restrictions must be interpreted in a very restrictive way.
42. As regards the interoperability capacity of large scale information
systems, the concern is that despite the legal and administrative
guarantees provided in the relevant European Union legislation ensuring
restricted access to and limited use of those systems, the information
entered by an authority in one of the systems for a specific purpose
may be used by another authority in another system for different
purposes which are not explicitly provided by the European Union
regulations in force. The typical example is that of the misuse
of an alert entered in SIS II to deny a residence permit when such
an alert is accessible through the ECRIS-TCN.
43. The misuse of alerts as a political leverage against third
countries poses another challenge. Although under international
law States have the right to determine the terms and conditions
under which non-nationals are admitted to their territories, restrictions
designed and placed for the sole purpose of inflicting harm to a
third country disguised as a national security threat coming from
an individual who is a national of that third country should not
be permissible. If it is not scrutinised by the European Union bodies,
this alleged practice may substantially undermine the legitimacy
of SIS II and other large-scale information systems.
44. As regards the obligations of the State enforcing a SIS alert,
its immigration and border authorities deciding upon a SIS alert
must ensure that a person will not be refused entry, a short-term
visa, and in the future, a travel authorisation, on unlawful grounds,
in accordance with the respective provisions of the Schengen Borders
Code, the Visa Code
![(60)
Regulation
810/2009/EC of the European Parliament and of the Council of 13
July 2009 establishing a Community Code on Visas (Visa Code).](/nw/images/icon_footnoteCall.png)
and
the Regulation 2018/1240 establishing a European Travel Information
and Authorisation System (ETIAS).
![(61)
Regulation (EU) 2018/1240
of the European Parliament and of the Council of 12 September 2018
establishing a European Travel Information and Authorisation System
(ETIAS) and amending Regulations (EU) No. 1077/2011, (EU) No. 515/2014,
(EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.](/nw/images/icon_footnoteCall.png)
This
includes the obligation to respect the fundamental rights of the
concerned person (in particular the freedom of movement of European
Union citizens’ family members, the right to respect for family
life, freedom of expression and freedom of religion, conscience
or belief and the principle of non-refoulement), before turning
him/her back at the border. Another responsibility is related to
the use of the SIRENE network, which should be used more actively
to exchange necessary information before denying admission or a
short-term visa to a third-country citizen. The Court of Justice
of the European Union has pointed out this obligation in its Grand
Chamber judgment in the case of
Commission
v. Spain of 2006.
![(62)
Commission v. Spain, case C-503/03,
judgment of 31 January 2006, paras 55-59.](/nw/images/icon_footnoteCall.png)
The
case concerned Spain’s refusal of a visa and entry to third-country
nationals who were spouses of European Union member State nationals,
on the sole basis of a SIS alert issued by Germany. The Court of Justice
stressed that the Spanish authorities should have checked whether
the concerned persons presented “a genuine, present and sufficiently
serious threat affecting one of the fundamental interests of society”
and therefore had failed to fulfil their obligations under Council
Directive 64/221/EEC of 25 February 1964 on the co-ordination of
special measures concerning the movement and residence of foreign
nationals which are justified on grounds of public policy, public
security or public health.
![(63)
Ibid,
paras 55 and 59. The CJEU also stressed that the State issuing the
alert (Germany) should have made supplementary information available
to the consulting State “to enable it to gauge (…) the gravity of
the threat that the person for whom an alert has been issued is
likely to represent”; para. 56.](/nw/images/icon_footnoteCall.png)
45. As regards access to an effective remedy, enshrined in Article
47 the European Union Charter of Fundamental Rights and Article
13 of the European Convention on Human Rights, this issue is crucial
for ensuring respect of fundamental rights in the context of the
use of SIS alerts.
![(64)
More
specifically, with regard to data protection, see Article 79 of
Regulation (EU) 2016/679 of the European Parliament and of the Council
of 27 April 2016 on the protection of natural persons with regard
to the processing of personal data and on the free movement of such
data, and repealing Directive 95/46/EC (General Data Protection Regulation):
“(…) each data subject shall have the right to an effective judicial
remedy where he or she considers that his or her rights under this
Regulation have been infringed as a result of the processing of
his or her personal data in non-compliance with this Regulation.”](/nw/images/icon_footnoteCall.png)
Such
a remedy should be available not only against the State executing
a SIS alert but also against the State which has inserted the alert in
the SIS. The above-mentioned provision of Article 43(1) of the SIS
II, allowing third country nationals to bring an action before the
courts or national authorities in “any member State” in relation
to the use of SIS alerts, provides for an important protection against
abuses. However, in practice, the effective implementation of the right
to an effective remedy seems to be hampered in two ways. Firstly,
third-country nationals often lack information about the fact that
they are subject to a SIS alert and they only find out when arriving
at the external border of the European Union or applying for a visa.
Even if they have found out about the existence of a SIS alert,
the exercise of their right to an effective remedy often depends
on the good will of the border or immigration authorities, who do
not always inform them correctly about their rights. Secondly, national
courts may be reluctant to order other member States’ authorities
to delete or correct the information included in the SIS II, and
even if they do so, they may lack the power to ensure the follow-up
of such orders. In such a case, the inability to address effectively
unlawful or inaccurate information included in the SIS II, can turn
into a bureaucratic nightmare, especially for those who are repeatedly
confronted with entry bans.
![(65)
As
illustrated in a 2010 report of the Dutch Nationale
Ombudsman:<a href='about:blank'> www.nationaleombudsman.nl/uploads/rapport2010-115_1.pdf.</a>](/nw/images/icon_footnoteCall.png)
46. It should be stressed that the good functioning of the SIS,
whose goal is to maintain a high level of security within the Schengen
area (in particular to ensure protection from terrorist threats
and threats to national security), is dependent on the mutual trust
between national authorities of the Schengen area member States.
National authorities must be able to trust that the data provided
to the SIS are accurate and recorded according to national laws,
including those on the protection of fundamental rights and freedoms.
4.2.7. Human
rights implications of the misuse of alerts based on Article 24(1)
of the SIS II Regulation
47. As stressed by Ms Nuala Mole
at the hearing of 14 September 2021, certain provisions of the European Convention
on Human Rights might be applicable in cases of ill-founded alerts
entered into the SIS. Although the European Court of Human Rights
has not yet found any violation of the Convention in such a case,
it has already examined a case of blacklisting on the basis of UN
Security Council anti-terrorism sanctions: in the
Nada v. Switzerland ![(66)
Application No. 10593/08,
judgment of 12 September 2012 (Grand Chamber). The applicant, an
Italian-Egyptian citizen living in Switzerland, was placed on the
“Federal Taliban Ordinance” by the Swiss authorities and was prevented from
leaving his area. Although the Swiss authorities enjoyed a certain
degree of discretion in the application of the UN sanctions, by
failing to inform the Italian authorities and the UN Sanctions Committee
and to adapt the effect of the sanction to his individual situation
that there was no reasonable suspicion against the applicant, they
violated Article 8 of the Convention. The applicant did not have
any remedy to contest the measure (violation of Article 13).](/nw/images/icon_footnoteCall.png)
judgment,
concerning the applicant’s inability to have his name removed from
such a blacklist and a subsequent restriction on movement, it found
violations of Articles 8 and 13 of the Convention.
48. Article 8 of the Convention is also applicable to the collection
and retention of data
![(67)
See,
in particular, S. and Marper v. the United
Kingdom, application Nos. 30562/04 and 30566/04, judgment
of 4 December 2008 (Grand Chamber), Khelili
v. Switzerland, application No. 16188/07, judgment of
18 October 2011, and Aycaguer v. France,
application No. 8806/12, judgment of 22 June 2017.](/nw/images/icon_footnoteCall.png)
and
the inclusion of a person’s data in the SIS II could, in theory,
violate this provision, if it is not in “accordance with the law” (including
European Union law where applicable),
![(68)
See, for instance, Big Brother Watch and Others v. the United
Kingdom, applications Nos. 58170/13 62322/14 and 24960/15,
judgment of 25 May 2021 (Grand Chamber), paras 518-519.](/nw/images/icon_footnoteCall.png)
does
not serve a “legitimate aim” and/or is not proportionate to that
aim. The same reasoning would apply if a person considers that his/her
blacklisting constitutes an interference with his/her reputation.
![(69)
See, for instance, Delfi A.S. v. Estonia, application
No. 64569/09, judgment of 16 June 2015 (Grand Chamber), para. 137.](/nw/images/icon_footnoteCall.png)
49. Moreover, the right to freedom of expression (Article 10 of
the Convention) could potentially be invoked in such cases. The
Court has already examined cases concerning violations of Article
10 of the Convention in cases of foreigners who have been prevented
from entering the territory of a State Party to the Convention, although
these cases did not concern hits on alerts in the SIS. In
Piermont v. France, concerning the
expulsion and exclusion order in French Polynesia and New Caledonia
issued against a German member of the European Parliament who had
made critical statements on French policies, it found that the impugned measures
were not proportionate to the aims of “the prevention of disorder”
and “the upholding of territorial integrity” (violation of Article
10 of the Convention).
![(70)
Applications
Nos. 15773/89 and 15774/89, judgment of 27 April 1995, paragraphs
77 and 85. Interestingly, in this case the Court found that Article
16 of the Convention, which allowed State Parties to the Convention
to impose restrictions on political activity of aliens, did not
authorise France to restrict the applicant’s exercise of the right
to freedom of expression because of Ms Piermont’s possession of
the nationality of a member State of the European Union and her status
as a member of the European Parliament; ibid, para. 64.](/nw/images/icon_footnoteCall.png)
Similarly,
in
Cox v. Turkey, the Court
considered that a permanent ban on the applicant’s re-entry on grounds
of her previously expressed opinions on Kurdish and Armenian issues,
was not sufficiently and relevantly justified by national security
and other grounds and therefore was not “necessary in a democratic
society”.
![(71)
Application
No. 2933/03, judgment of 20 August 2010, paras. 43 and 44. The applicant
was a national of the United States of America.](/nw/images/icon_footnoteCall.png)
5. Conclusion
50. As explained above, the relevant
authorities of Council of Europe members States which belong to
the Schengen area have much leeway in deciding whether and in which
circumstances they want to introduce alerts into SIS II. Without
questioning the fact that national security may be at stake, it
should be stressed that individual member States or a group of States
belonging to the Schengen area may in fact decide to deny access
to their territories to third-country nationals and that the SIS
does not foresee common standards for inserting alerts or for interpreting
and reporting information. Therefore, information of a similar nature
may undergo different assessment depending on the security policy
of the given State.
51. In light of the foregoing, it is even more important that
States participating in SIS II observe human rights, as enshrined
in the European Convention on Human Rights. The possible use of
the Schengen system, including SIS II, as an instrument of politically
motivated sanctions may raise concerns with regard to a range of
rights guaranteed by the Convention, including the right to freedom
of expression (Article 10), the right to respect for private and
family life (Article 8), the right to freedom of movement (Article
2 of Protocol No. 4) and the right to an effective remedy (Article
13), including unhindered access to fair justice (Article 6). The
SIS should under no circumstances be misused in order to deny citizens
of Council of Europe member States not belonging to the European
Union and other third-country nationals’ access to the Schengen
Area on grounds that are in violation with the requirements stemming
from the Convention. Since all these rights are guaranteed by international
conventions, it is unacceptable to prevent or attempt to prevent
their exercise due to the misuse of the system for political reasons.
Member States of the Schengen Area should pay attention to those
risks as required by the agreements to which they are parties.
52. In this context, the issue of the relationship between the
legal frameworks of the Council of Europe and the European Union
deserves careful consideration. SIS II is an integral element of
the European Union legal framework and the European Union is yet
to become a party to the European Convention on Human Rights. Furthermore,
there are a number of obstacles both within the practice of the
European Court of Human Rights (the «Bosphorus criteria»)
![(72)
European Court of Human
Rights, Bosphorus Hava Yollari Turizm
Ve Ticaret Anonim Şirketi v. Ireland, application No.
45036/98, judgment of 30 June 2005 (Grand Chamber). In this case,
the Court has stated that State action taken in compliance with
legal obligations stemming from an international treaty is justified
as long as the relevant organisation to which the State has transferred
part of its sovereignty is considered to protect fundamental rights
“(…) in a manner which can be considered at least equivalent to
that for which the Convention provides (…) “(paragraph 155). If
such “equivalent protection” is considered to be provided by the
organisation, one can presume that a State “(…) has not departed
from the requirements of the Convention when it does no more than
implement legal obligations flowing from its membership of the organisation”;
however, this presumption can be rebutted if in the circumstances
of a particular case the protection of the Convention rights is
“manifestly deficient” (paragraph 166). The concept of “equivalent
protection” by EU law seems to be scarcely used by the Court now,
as illustrated by the recent judgment in the case of Bivolaru and Moldovan v. France, application
Nos 40324/16 and 12623/17, judgment of 25 March 2021, concerning
the European Arrest Warrant.](/nw/images/icon_footnoteCall.png)
as well as the European
Union
acquis (namely the so-called
Plaumann criteria)
![(73)
CJEU, Plaumann & Co. v Commission of the European
Economic Community, case 25-62, judgment of 15 July 1963.
In this case, the CJEU held that the applicant company had no standing
for judicial review of the Commission decision as it was not “individually
concerned”. The CJEU further specified the conditions in which natural
and legal persons could bring actions for annulment against European
institutions: “persons other than those to whom a decision is addressed
may only claim to be individually concerned if that decision affects
them by reason of certain attributes which are peculiar to them
or by reason of circumstances in which they are differentiated from
all other persons and by virtue of these factors distinguishes them
individually just as in the case of the person addressed.”](/nw/images/icon_footnoteCall.png)
for
taking action against decisions carried out under the European Union
legal framework. All this leads to legitimate concerns regarding
the possibility of challenging possible cases of misuse of the Schengen
system, especially through the European Court of Human Rights by
non-European Union citizens. In such cases, the European Court of
Human Rights could question the grounds on which a SIS alert is
based and check whether the alert was not arbitrary and whether
it was proportionate to a legitimate aim. While being deferential
to the authorities invoking national security, the Court should
be vigilant to ensure that the invoked reasons were genuinely related
to national security.
53. Against this background, several concrete recommendations
can be made in order to prevent misuse of the SIS and improve the
protection of fundamental rights of third-country nationals subject
to alerts entered into the SIS. As regards member States issuing
alerts, they should follow the principles of proportionality and individual
assessment, despite the wide leeway granted to them on the basis
of Article 24(2) of the SIS II Regulation. They should not restrict
the right to be informed about the inclusion of an alert and should
observe their data protection rights.
54. As regards the obligations of member States enforcing alerts,
they should take into account other relevant provisions of European
Union law concerning the freedom of movement of persons within the European
Union. They should also actively use the SIRENE network, in order
to verify the necessary information before denying admission or
a short-term visa to a third-country national. They should also
refrain from misusing SIS II against a third country as part of
advancing their political agenda by entering unjustified alerts
concerning nationals of that third country. Adequate monitoring
and verification systems as well as reporting mechanisms should
be put in place to prevent Schengen Area member States from taking
such measures for political purposes.
55. European Union regulations on interoperability add enormous
complexity to the practices and laws relating to the existing data
systems and thus render the provisions of the General Data Protection
Regulation and the Data Protection Directive insufficient in setting
adequately transparent legal framework. In particular, the use of
large-scale databases and the effects of interoperability, primarily
as regards third-country citizens, make it extremely difficult for
the data subject to understand not only which particular law applies
but also which member State or institution should be addressed with
regard to exercising their rights to access, correction or deletion
of data and their right to effective judicial protection. The use
for a specific purpose of one set of data duly registered in one
of the information systems by another information system is of particular
concern. In order to address these challenges, the interoperability
of information systems must be rendered more transparent and clear
rules and restrictions must be introduced concerning the controlling
authority and the purpose of using and processing the registered
data.
56. It goes without saying that member States of the Schengen
area should do their utmost to ensure respect of human rights of
the third country nationals subject to alerts, and in particular
their right to an effective remedy. In order to make this right
fully operational, decisions refusing entry, a visa or travel authorisation based
on a SIS alert should indicate the member State issuing the SIS
alert, the specific grounds for the refusal of admission and, to
the extent possible, the essence of the reasons for the SIS alert.
![(74)
In this regard, lessons
could be learned from a recent judgment of the CJEU in two cases
in which the Dutch visa authorities had refused short-term visas
to third-country nationals following objections from other member
States; CJEU, R.N.N.S. and K.A. v. Minister van Buitenslandse Zaken, cases
C-225/19 and C-226/19, judgment (Grand Chamber) of 20 November 2020,
paras 43-56.](/nw/images/icon_footnoteCall.png)
Furthermore, the applicants should
be informed about the available remedies against SIS alerts, including
those relating to the protection of their data. Their rights to
defence and effective judicial protection should be guaranteed. Moreover,
co-operation should be improved between the competent national authorities
examining individual cases of alerts (courts, data protection controllers
and other relevant bodies).
57. The European Union and member States of the Schengen area
should also collect more knowledge about current national practices
concerning the use of SIS II and its impact on human rights. In
particular, the European Union could carry out further inquiries
amongst European Union member States and other stakeholders, including
the European Ombudsman, the Fundamental Rights Agency (FRA), eu-LISA
and the European Data Protection Supervisor. Such inquiries could
be used to identify specific grounds for SIS alerts aimed at third-country
nationals, the data retention periods for alerts (including the
possibility of extending such periods), the annual number of hits
based on SIS alerts and the number of actual entry or visa refusals
based on alerts. They could also refer to the use of the SIRENE
network and examine how often and in which circumstances national
authorities make use of it.
58. The replies received in response to the questionnaire I had
sent through the ECPRD show that there is a need for further inquiries
of that type in order to obtain more information on the issues raised
therein. Several other questions could be addressed in the framework
of further research: is it possible to take action against an European
Union member State which has not inserted the alert in the SIS (including
the member State executing the alert)? How often have national courts
and data protection authorities used the possibility to order another
member State to correct or delete data in the SIS? Has the issuing
State followed such orders? This additional information could then
be used to develop further guidelines for national authorities on
how to use the SIS in accordance with its rules and purposes, while
preventing its misuse and respecting the fundamental rights of the
individuals concerned. Taking this into account, the European Union
could adopt guidelines on a minimum common standard for alert procedures
applicable to third-country nationals. They could include the criteria
for issuing SIS II alerts (for example, by drafting a specific list
of serious crimes or offences, including a clear threshold of “severity”
of the offence for which persons may be subjected to an alert, or
a more precise definition of “public order and security risk”).
![(75)
For more information
on these proposals, see P. Boels, E. Brouwer e.a., Public Policy Restriction in EU Free Movement
and Migration Law, General Principles and Guidelines, publication
by the Meijers Committee, Amsterdam 2021.](/nw/images/icon_footnoteCall.png)
59. Another proposal is to introduce some sort of mediation/intervention
organ (namely an ombudsperson), whose main task would be to examine
the issue of whether human rights standards have been applied and respected
by national authorities when entering an alert in the system or
denying entrance to third country nationals. Such a mediator or
ombudsperson need not be empowered to issue legally binding rulings
but could exert a moderating influence on the competent authorities
to discourage misuse of the system. Alternatively, competences in
this field could be attributed to the European Ombudsman, FRA or
the EDPS, provided that they are given sufficient resources. The
Frontex (European Board and Coast Guard Agency) Fundamental Rights
Officer, an independent expert who monitors and promotes fundamental
rights within Frontex and handles complaints, could be a source
of inspiration in this context.
![(76)
Established by <a href='http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AL%3A2016%3A251%3ATOC'>Regulation
1624/2016</a> on the European Border and Coast Guard.](/nw/images/icon_footnoteCall.png)
Similarly,
this type of body could be established also at the national level.
During my fact-finding visit to Brussels, I have learned that the
European Commission, DG JUST, is now preparing guidelines on politically
motivated requests for extradition and it will propose the establishment
of national focal points to examine such cases. I think that similar
focal points could also be established to examine cases of misuse
of SIS II alerts.
60. Moreover, the Schengen Evaluation Mechanism could be better
used to examine the possible deficiencies in the functioning of
SIS II and make appropriate recommendations for improvement. It
would also be good to involve the European Parliament in this process.
61. As regards the Council of Europe’s role in this context, the
Commissioner for Human Rights and the Secretary General Special
Representative on Migration and Refugees could follow the implications
of the misuse of SIS II alerts on human rights and make the necessary
recommendations to Council of Europe member States, including those
belonging to the Schengen Area. Much will also depend on the case
law of the European Court of Human Rights, which so far has not
decided on the merits in cases of individuals who have been denied
entry into the Schengen area following SIS alerts but may receive
such applications in the future.
62. To conclude, preventing misuse of the Schengen Information
System is not only essential to protect fundamental rights and free
movement of individuals, but also to safeguard trust amongst national
authorities and to allow them to rely on the accuracy and lawfulness
of the information contained in the SIS. This is even more urgent
in light of the recent developments related to the extensive use
within the European Union of border technologies, such as biometrics
and algorithms, and the scheme of interoperability which connects
SIS with other large-scale databases. Innocent persons should not
be victims of incorrect use or misuse of European Union databases
or any automated decision made on this basis.