Data Mining and Profiling in the Area of Freedom, Security and Justice: State of Play and New Challenges in the Balance between Security and Fundamental Rights Protection
Author | Rosaria Sicurella,Valeria Scalia |
DOI | 10.1177/203228441300400404 |
Date | 01 December 2013 |
Published date | 01 December 2013 |
Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 4, Issue 4, 2013 409
DATA MINING AND PROFILING IN THE AREA
OF FREEDOM, SECURITY AND JUSTICE
State of Play and New Challenges in
the Balance between Security and
Fundamental Rights Protection
R S* and V S**
ABSTRACT
is article analyses the impact of the u se of data processing mechanisms (i.e. data mining
and pro ling) as investigative tools on the fund amental rights of individuals. It highlights
the pressing need to achieve a fair balance between social security and individual’s
fr ee d om s wh en d at a p ro c es si n g m ec h an is m s a re u se d i n cr im i na l i nv e st ig at i on s , p ro v id in g
for a set of limits to ensure the necessar y protection of fundamental rights of individuals ,
without frustrating investigation exigencies. In this respect, the article examines the
current EU legislation and the new p roposals under discussion concerning the protect ion
of privacy and data protection at the EU level, the relevant case law of the European
Courts (CJEU and EctHR) and the general tendencies in the Membe r States’ legislation,
in order to build up an ‘integrated table’ of constraints, particularly useful for the
European legislator in the adoption of common l egislation at the EU level.
e article also stresses the crucial role of the CJEU in achieving the above mentioned
balance between investigation need s and individuals’ rights protection, especially a er
the entry into force of the Lisbon Treaty and the explicit recognition of the binding
nature of the Charter of fundamental rights of the European Union providing for an
express provision on data p rotection. e authors nevertheless point out the remaining
prominent role of the ECtHR in protecting fundamental rights at the supranational
level, because of some persisting limitations to the competence of the CJEU in AFSJ
matters, and the perspective of enhancement of fundamental rights protection at EU
level following future EU acce ssion to ECHR.
Keywords: CJEU; data protection; EU Cha rt of fundamental rights; ECHR ; ECtHR
* Full Professor of Criminal Law, University of Catania (Italy). She dra ed paras. 1, 2, 6, 7, 8 and 10.
Para. 11 was dra ed jointly.
** Researcher in Cr iminal Law, Universit y of Catania (Italy). She dra e d paras. 3, 4, 5 and 9.
Rosaria Sicure lla and Valeria Scalia
410 Intersentia
1. INTRODUCTION
Ever since the very beginning of the European Communities’ history, fundamental
rights protection has always represented one of the main ‘engines’ of European
integration, beside the more visible dynamics generated by the realisation of the
economic union and the putti ng-in-place of the Europea n Common Market.1
First highlighted by the very signi cant jurisprudence elaborated since t he 1970s
by the Court of Justice of the European Union (CJEU) – or the European Court of
Justice (ECJ) as it then was – the clear tendency of the European legal order to
progressively develop an autonomous system of fundamental rights protection,
providing the necessary guidance and critical overview of powers of European
institutions (as required for any system governed by t he rule of law), has successively
been institutionalised in EU primar y law. Express provisions on funda mental rights
protection were introduced through the Maastricht Treaty, and later, in a more
detailed manner, throug h the Amsterdam Treaty. In 2000, t he Charter of Fundamenta l
Rights of the Europea n Union (CFR) was adopted. is Charter ca n now be considered,
a er the entry into force of the Lisbon Treaty, to be the main pillar of the European
system of fundamental rights protection (without excluding, never theless, the role of
common constitutional traditions and international documents on human rights
protection signed by all Member States, which remain the traditional ‘sources’ for
funda mental rights protection at EU level).2 e value of the Charter was originally
questioned, but Article6 T EU now clearly establishes its binding charac ter.
e jurisprudence of the CJEU on funda mental rights protection, which was at the
time thought to be necessary for the full acceptance by the Member States of the
principle of primacy of EU law, was an extr aordinary contribution to the democratic
evolution of the European sy stem.3 e pri macy of EU law would have been strongly
object ed to by th e Member St ates if t he exist ing gap in the EU sy stem on prote ction of
fundamental r ights was not l led, since this would have implied weakened stand ards
of protection also at the internal level.4 e activity of the CJEU, resulting in a rst
1 See M. Delma s-Marty, Politiques cr iminelles en Europe, Pa ris, 1992.
2 See F. Sudre and C.J. Monnet, ‘La Communauté europ éenne et les droits fondamentaux après le
Traité d’Amsterdam: vers un nouveau système de protection des droits de l’homme?’, La Semaine
Juridique, 19 98, pp. 9 . An interestin g analysis of dynamics mov ing towards a proper system of
pro tec ti on o f f und am ent al ri ght s i n t he E U is dev el ope d by O. D e Sc hut te r, ‘L es dr oit s fo nda me nta ux
dans le projet européen. Des limites à l’action des institutions à une pol itique des droits
fondamentaux’, in O. De Schutter and P. Nihoul (eds.), Une Constitu tion pour l’Europe. Ré exions
sur les transfo rmations du droit de l’ Union européenne, Bruss els, Larcier, 2004, pp. 81 .
3 See F. Capotorti, ‘Il d iritto c omunitario non s critto’, Dirit to comunitari o e degli scambi i nternazi onali,
1986, in part icular, pp. 411–412.
4 e recognition a s general principles of Europ ean law of some of the principle s taken from Member
State constitut ions managed to avoid con icts w ith the most demanding nat ional systems (such as
the German or t he Italian ones); see B. de Witte, ‘Community Law and National Constitutional
Valu es ’, Legal Issues of Eu ropean Integration, 1991/2, pp. 1 ., especi ally p.22.
Data Mining a nd Pro ling in the A rea of Freedom, Securit y and Justice
New Journal of Eu ropean Crimina l Law, Vol. 4, Issue 4, 2013 411
cat alog ue of fun dame nta l rig hts of the E urop ean lega l orde r, is t o be co nsid ered i n fac t
as an essential component of the ‘constitutionalisation’ process of the European
construction,5 aiming at st rengthening its overall legitimac y.6
It is far from being just a coincidence, t hen, that the rst express prov ision concerning
funda mental rights protection is to be found in the Maastricht Treaty (Article F.2 TEU
of 1992), where the pillar structure was introduced and initiatives in criminal matters
for the rst time were considered to be part of the dynamics governing European
integration (albeit according to essentially di erent pro cedures and normative
instruments than the typical community ones – as established in title VI of the
Maastricht Treaty, the so-called ‘third pillar’). And it cannot be considered but logical
that the development and deepening of the institutional dimension of fundamental
rights protect ion went on in parallel with t he progressive expansion of EU competences
in crimina l matters through the Amsterdam Treaty and t he Nice Treaty, to the present
situation as expressed in the Lisbon Treaty. Here, the competence of the Union in
criminal matters (mainly but not exclusively) recognised in Articles82 and 83 of the
Treaty on the Functioning of the European Union (TFEU) – but also in some way
established in A rticle85 TFEU concerning Eurojust, a nd above all in Article86 TFEU
concerning the possible institution of a European Public Prosecutor O ce – is in fact
joined with a dramatic step forward in the eld of fundamental rights protection:
Article6 TEU not only estab lishes the binding nature of the CFR, it a lso provides for the
accession of the EU to the Europea n Convention on Human Rights (ECHR). Funda mental
rights protection (in a wide sense), nally, appears to have inspired the overall logic
behind the Stock holm Programme (‘An open and secure Europe serv ing and protecting
citizens’)
7
where all strategic objectives are conceived (as declared in the title) in the
general perspective of the rea lisation of the EU as an area having at its very bot tom the
European citizen, not considered solely as a homo economicus (enjoyi ng rights and
freedoms strictly related with economic dimension: freedom of movement and
settlement), but as a person. Such a perspective ca nnot but have a strong impact (not only
on normative initiatives to be ta ken but in general) on the (progressive) de nition of the
essential charac ters of the EU legal order and its compliance w ith principles of democracy.
Data mining and pro ling techniques represent without any doubt a very crucial
issue when exa mining the situation of fundamental rights protection in an Area of
Security, Freedom and Justice (ASFJ) in t he EU. ese measures and techniques were
intended to be used as tools to ensure t he best outcome in the detection and prosecut ion
of crimi nal o ences within this AFSJ. It is clear that they have a signi cant impact on
5 See J.L. Da Cru z Vilaça and N. Piçarra, ‘Y a-t-il des limites matérielles à la révision des traités
institua nt les Communautés européenne s?’, Cahiers de droit européen, 19 93, p.10.
6 For a more extensive ana lysis, see R. Sicurella, Diritto penale e competenze dell’Unione europea.
Linee guida di un si stema integrato di tutela d ei beni giuridici sovran nazionali e dei beni giur idici di
interesse comune, Milano, 20 05, pp. 402 .
7 European Counc il, ‘Stockholm Progr amme – An Open and Secu re Europe Serving a nd Protecting
the European Cit izens’ (2010/C 115/01), OJ C115, 4.5.2010, p.1.
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