FECL 46 (August 1996):
The Dublin Convention provides for the comprehensive exchange of personal data on asylum seekers between the member states for the purpose of determining the state responsible for examining an asylum examination. As well as exchanging applicants' personal details such as identity and travel documents, places of residence and travel routes, member states also bind themselves to communicate "other information necessary for establishing the identity of the applicant". Fingerprints are considered such "other information".
Since the often uncertain identity of asylum seekers is regarded as one of the main obstacles preventing the swift deportation of asylum seekers, a number of member states are already subjecting all asylum seekers to compulsory fingerprinting - an interference with persons' integrity, hitherto only considered acceptable in dealing with criminals and criminal suspects.
Swift deportation is also clearly the purpose of the planned Eurodac register. The preamble to the draft, however, suggests that the compulsory registration and exchange of asylum seekers' fingerprints in all EU member states is purely a humanitarian measure, which will help avoid lengthy asylum procedures and will spare applicants lengthy uncertainty about the outcome of their case. Fingerprinting is presented as a guarantee for asylum seekers that their application will be considered by a member state, and as a means of preventing "refugee in orbit" situations, where applicants are sent back and forth between countries, both of which deny responsibility for the case.
Eurodac is conceived as a central register for asylum seekers' fingerprints, managed by an automated system enabling the computerised matching and identification of fingerprints.
Member states shall take fingerprints of all asylum seekers over 14 and "promptly" transmit the relevant digital images to the Eurodac register. The Eurodac central unit checks the communicated fingerprint images against its own stock of images, stores them in the central data base and "promptly" sends the result of the check back to the requesting member state, together with those fingerprint images stored in the central database which the technical unit perceives as identical with images sent by the requesting state. The final identification shall, however, be carried out by the requesting member state in co-operation with the other member state(s) involved in the case.
It remains to be decided, whether the data sets will contain images of ten fingers or merely of two, together with the codes for ten fingers.
The fingerprints and other personal data stored in the Eurodac system may not be used for other purposes than determining the state responsible for examining an asylum application according to the Dublin Convention. However, each member state is authorised to use the data it has communicated itself for "other purposes in accordance with national law". This provision is likely to constitute a great temptation for member states to gradually set up their own fingerprint registers on foreigners accessible, for example, by prosecution authorities.
Fingerprints shall be held in the Eurodac central register for a period of 10 years. The draft says nothing about an obligation to delete the fingerprints and other personal data concerning asylum seekers, as soon as they have been granted legal residence in a member state.
By contrast with, for example, the Europol and the Schengen Conventions, the draft Eurodac Convention does not provide for its own data protection authority, since the data stored in the central register are considered the property of the communicating state. Asylum seekers - theoretically - have a right to be informed about their own data and to have incorrect or unlawfully stored data changed or deleted, according to the laws and procedures applicable in the member state, where the request for access is filed. Complaints by registered persons concerning Eurodac can be brought to national courts or other "competent national authorities" only. The draft says nothing about how asylum seekers, whose legal and economic situation is usually precarious, might be able to exercise their right to a legal remedy in practice.
Disputes among member states about the implementation of the Convention shall be solved according to the same (fairly complicated and time-consuming) procedure established in Article 40 of the Europol Convention. The question of a possible competence of the European Court of Justice in disputes between member states, and preliminary rulings upon request of national courts, is to be considered at a later date.
According the draft's Article 14, the Council (Justice and Home Affairs) "shall see to it" that the Convention's regulations are implemented in "a satisfactory way" and that the Eurodac system works "satisfactorily". The Council shall also adopt the "necessary implementing measures". It remains to be agreed whether such decisions require unanimity or merely a qualified majority.
Like the Convention on Extradition (see FECL No.45: "'Flexible' EU Convention on Extradition"), the draft Eurodac Convention enables member states to put it into force immediately upon ratification, without having to await the conclusion of the ratification process in all 15 member states. Just as in the case of the Convention on extradition, this is likely to result in the member states with the most advanced and comprehensive fingerprinting practices forming an "A-team", which will gradually impose its policy lines on the other member states.
According to an introductory note of the (then Italian) Council Presidency to the K.4 Committee's Steering Group I, attached to the draft, a number of items still require further examination:
- On the question of using Eurodac data for other purposes than those named in the Convention, it is to be examined whether it is actually technically feasible to restrict a member state's access to only its own data stock.
- Belgium, the Netherlands and Sweden have presented reservations regarding the minimum age of asylum seekers who shall be registered in Eurodac. The age of 14 named in the draft actually would amount to harmonisation on lowest common denominator. For the time being, only Germany, Austria and Denmark are said to openly advocate the registration of children of 14.
- It is to be discussed whether third countries which have signed the so-called "parallel Convention" to the Dublin Convention (e.g. Switzerland), shall be allowed to join the Eurodac Convention.
- Finally, the note seriously raises the question whether the member states should bind themselves to start taking fingerprints as soon as the Eurodac Convention is signed (and provided the entry into force of the Dublin Convention), "so as to have available a database of a certain size the moment the Eurodac Convention comes into force". This would amount to something really new in the history of European constitutional states: the "prae hoc" collection of personal data with a view to setting up a database, whose legal basis (the Convention) remains to be approved by the national parliaments.
Sources: Note of the Council Presidency to Steering Group I regarding the draft Convention concerning the establishment of the EURODAC system for the identification of asylum seekers, Brussels, 17.4.96, 6545/96 Limite, ASIM 60, (All quotations in this article are our translations from the Danish version); (Dublin) Convention determining the State responsible for examining applications for asylum lodged in one of the member states of the European Communities; Our sources.