Migration Law Schengen Information System

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Migration LawSchengen Information System

• by Konrad Wilk

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Schengen Information System

• History and legal background
• Schengen Information System (SIS) functioning
• Potential problems about data protection
• Evoluation of the System (SIS II)

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SCHENGEN INFORMATION SYSTEM (SIS) WHAT IS IT?

• Governmental database used by European countries
• Main purposes
• -maintain, source and distribute information on
  individuals and pieces of property of interest in
  order to protect national security, to control
  internal bordel and to counter any potential
  threat

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Map of Schengen Area Member States
   Full Schengen members (EU member states
which have implemented the Schengen Agreement)   
Associated Schengen members (non-EU member
states which have implemented the Schengen
Agreement)    EU member states which are
bound to implement the Schengen Agreement but who
have not done so yet)    EU member states
outside the Schengen Area
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History and legal background

• Treaty of Rome, 1957
• Treaty instituting the economic Union of the
  Benelux countries, 1958
• The Agreement of Saabrucken, 1984
• Schengen Agreement of June 14, 1985
• (plus Convention implementing the Schengen
  Agreement enacted 5 years later)
• Amsterdam Treaty, 1997
• Directive on the right of citizens of the Union
  and their family members to move and reside
  freely within the territory of the Member States
  2004/38/EC

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SIS functioning

• What types of information are stored in SIS?
• Article 94 (from Convention Implementing The
  Schengen Agreement)
• The Schengen Information System shall contain
  only the categories of data which are supplied
  by each of the Contracting Parties and are
  required for the purposes laid down in Articles
  95 to 100(for instance data relating to persons
  wanted for arrest for extradition purposes, data
  relating to aliens who are reported for the
  purposes of being refused entry)

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SIS functioning

• Art.. 94 (2)
• Two categories of data
• (a) persons reported
• (b) objects referred to in Article 100- Data
  relating to objects sought for the purposes of
  seizure or of evidence in criminal proceedings,
  Information System and vehicles referred to in
  Article 99- Data relating to persons or vehicles
  for the purposes of discreet surveillance or
  specific checks

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SIS functioning

• Art. 94 (3).
• The items included in respect of persons, shall
  be no more than the following
• (a) name and forename, any aliases possibly
  registered separately
• (b) any particular objective and permanent
  physical features
• (c) first letter of second forename
• (d) date and place of birth
• (e) sex
• (f) nationality
• (g) whether the persons concerned are armed
• (h) whether the persons concerned are violent
• (i) reason for the report
• (j) action to be taken.

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SIS functioning

• Moreover, other references, in particular the
  data listed in Article 6, first sentence of the
  Council of Europe Convention of 28 January 1981
  for the Protection of Individuals with regard to
  Automatic Processing of Personal Data, shall not
  be authorized (racial origin, political opinions,
  religious beliefs).

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Potential problems about data protection

• LEGISLATION0 WHAT KIND OF PROTECTION?
• HOW LONG PERSONAL INFORMATION MAY BE PROCESSED
  SIS?
• WHO HAS ACCESS TO INFORMATION Processed in SIS?
• What are the rights of individuals in relation to
  the processing of their personal data in the SIS?

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LEGISLATION

• CONVENTION APPLYING THE SCHENGEN AGREEMENT
  (art.116,126,127)
• - the right to protection of personal data is
  guaranteed by law as a fundamental right
• - additional or auxiliary regulations should
  not affect or impair the rights or competence of
  the national supervisory authority of the SIS

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Bilateral and multilateral Agreement

• - between Member States and third countries-
  regulated by international law
• - all bilateral and multilateral agreements with
  third countries for the processing of data in the
  framework of police and judicial cooperation in
  criminal matters should provide that data must be
  processed in accordance with the requirements of
  the Schengen acquis

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Obligation to appoint national supervisory
authority

• - Art. 114 (1)
• Each Contracting Party shall designate a
  supervisory authority responsible, in compliance
  with national law, for carrying out independent
  supervision of the data file of the national
  section of the Schengen Information System and
  for checking that the processing and utilization
  of data included in the Schengen Information
  System are not in violation of the rights of the
  person concerned. For this purpose the
  supervisory authority shall have access to the
  data file of the national section of the
  Schengen Information System.

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HOW LONG PERSONAL INFORMATION MAY BE PROCESSED
in Schengen Information System?

• Article 112
• 1. Personal data for the purposes of locating
  persons shall be kept only for the time required
  to achieve the purposes for which they were
  supplied. No later than three years after their
  inclusion, the need for their retention must be
  reviewed by the reporting Contracting Party. This
  period shall be one year in the case of reports
  referred to in Article 99(for instance where
  there are real indications to suggest that the
  person concerned intends to commit or is
  committing numerous and extremely serious
  offences)
• 2. Each of the Contracting Parties shall, where
  appropriate, set shorter review periods in
  accordance with its national law.

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The Maximum period of time when the PERSONAL
INFORMATION MAY BE stored in Schengen Information
System

• Article 113 (1)
• -Data other than those referred to in Article
  112 shall be retained for a maximum of ten years,
  data relating to identity documents issued and to
  registered bank notes for a-maximum of five years
  and those relating toymotor vehicles, trailers
  and caravans for a maximum of three years.

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WHO HAS ACCESS TO INFORMATION Processed in
Schengen Information System?

• Art. 101 (1,2,3)
• (1) Access to data included in the Schengen
  Information System and the right to search such
  data directly shall be reserved exclusively for
  the authorities responsible for
• (a) border checks
• (b) other police and customs checks
  carried out within the country, and the
  co-ordination of such checks.

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What are the rights of individuals in relation
to the processing of their personal data in the
SIS?

• The right of any person to have access to data
  relating to him- art. 109 (1)
• Any person may have factually inaccurate data
  relating to him corrected or have legally
  inaccurate data relating to him deleted- Article
  110

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What are the rights of individuals in relation
to the processing of their personal data in the
SIS?

• Article 111 (1)
• Any person may, in the territory of each
  Contracting Party, bring before the courts or the
  authority competent under national law an action
  to correct, delete or provide information or
  obtain compensation in connection with a report
  concerning him.

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WHAT IS THE SIRENE office?

• Art. 108 (1,2)
• Each of the Contracting Parties shall
  designate an authority which shall have central
  responsibility for the national section of SIS.
• In Poland this function is assigned to The
  Inspector General for Personal Data Protection.

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Evoluation of the systemSIS II

• Currently in progress- should be in operation in
  second half of 2013
• Proposals
• possibility to use biometrics
• new types of alerts
• the possibility to link different alerts (such as
  an alert on a person and a vehicle)
• ensure stronger data protection

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Evoluation of the systemSIS II

• These two texts lay the legal foundations for the
  Schengen Information System II
• 2001/886/JHA Council Decision of 6 December 2001
  on the development of the second generation
  Schengen Information System (SIS II)
• 13.12.2001, p. 1 and Council Regulation (EC)
  No 2424/2001 of 6 December 2001 on the
  development of the second generation Schengen
  Information System (SIS II)

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Sources

• http//www.giodo.gov.pl
• http//www.consilium.europa.eu
• http//ec.europa.eu/dgs/home-affairs/what-we-do/po
  licies/borders-and-visas/schengen-information-syst
  em/index_en.htm
• http//en.wikipedia.org/wiki/Schengen_Information_
  System