(Covert) Surveillance of Foreign Terrorism Fighters via the Schengen Information System (SIS): Towards Maximum Operationalisation of Alerts and an Enhanced Role for Europol
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/20322844231178927 |
| Author | Niovi Vavoula |
| Date | 01 June 2023 |
| Subject Matter | Special Issue Articles |
Special Issue Article
New Journal of European Criminal Law
2023, Vol. 14(2) 206–230
© The Author(s) 2023
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DOI: 10.1177/20322844231178927
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(Covert) Surveillance of
Foreign Terrorism Fighters via
the Schengen Information
System (SIS): Towards
Maximum Operationalisation
of Alerts and an Enhanced Role
for Europol
Niovi Vavoula
Queen Mary University of London, UK
Abstract
This article aims to critically evaluate how the legal framework of the Schengen Information
System (SIS) and its practical implementation have evolved to address concerns regarding the
phenomenon of foreign terrorist fighters (FTFs) and which operational and fundamental rights
challenges this evolution poses. In that regard, emphasis is placed on two examples: first, the
article examines the maximised operationalisation of alerts on discreet checks under Article 36
of the SIS Regulation on police and judicial cooperation in criminal matters.Then, focus is placed
on the forthcoming iregistration of alerts on third-country nationals in the interest of the Union
based on Regulation 2022/1190. These alerts will be registered in the SIS with the increased
involvement of Europol following information received by third countries or international
organisations.
Keywords
Schengen information system, foreign terrorist fighters, Europol, data protection, alerts
Corresponding author:
Niovi Vavoula, Department of Law, Queen Mary University of London, Mile End Road, London E1 4NS, UK.
Email: n.vavoula@qmul.ac.uk
Introduction
In the past decade, the phenomenon of foreign terrorist fighters (FTFs) has risen high in the EU
security agenda, as FTFs returning from conflict areas may engage in violence, spreading
terrorist propaganda and recruiting followers in Member States, and may attempt to orchestrate
attacks in the EU. The EU Security Union Strategy places emphasis on addressing the phe-
nomenon, stating that “[t]he threat posed by radicalised individuals remains high –potentially
bolstered by returning foreign terrorist fighters and by extremists released from prison”.
1
Akey
strand of action by the EU to tackle the issue of FTFs has been the strengthening of information
exchange, and a wide array of legal instruments and policies, such as the EU Passenger Name
Record (PNR) Directive,
2
have been adopted, many of which are discussed in this Special Issue.
Known as the “heart”of the compensatory measures adopted for the abolition of internal border
controls, the Schengen Information System (SIS) –the most widely used and largest in-
formation sharing system for security and border management in Europe –has been a first-class
tool for enabling such information exchange by the recording of alerts that are accessible by
different national authorities depending on their purpose.
This article has a twofold aim: first, to map how the SIS has maximised covert surveillance on
suspected FTFs in the form of monitoring their movements and associations, and, second, to
critically evaluate the challenges posed by surveillance via the SIS to the fundamental rights of the
individuals whose personal data are recorded in the system. After a brief outline of the SIS rules in
order to introduce readers to the intricacies of the system, the article explores the early changes in the
SIS in response to terrorism concerns so as to inform the subsequent analysis and draw parallels.
Emphasis is then placed on two instances whereby FTF-related concerns are particularly visible and
have been translated into policy and/or legislative reform. First, the article examines the case of
alerts on discreet and specific checks, which allow for covert surveillance of individuals suspected
of serious criminality and have been increasingly used to monitor the movement of suspected FTFs.
Second, the article looks into a second example which concerns the expansion of Europol’s
mandate, giving the agency the possibility to propose to Member States the entry of a new category
of alerts into the SIS, which also have a surveillance effect, the so-called information alerts in the
interest of the Union. Finally, the article summarises the findings of the research and proposes
important revisions to improve transparency in the operationalisation of the SIS.
The SIS in a nutshell
Launched in 1995, the overarching purpose of the SIS is to ensure a high level of security in
a borderless Schengen area by facilitating both border control and police investigations.
3
The SIS
1. Commission, ‘EU Security Union Strategy’(Communication) COM(202) 605 final, 6.
2. Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name
record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime
[2016] OJ L119/132.
3. In its early days, the specific objective of the SIS was twofold; a) to maintain public order and security, including State
security and b) to enable the Contracting parties to automatically search the information on persons and objects registered
therein for the purposes of border control and police investigations, control and other searches. See the Convention
implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic
Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common
borders [2000] OJ L239/19 (CISA), art 93.
Vavoula 207
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