2013年-CEPS欧洲政策研究中心_Protection_of_Personal_Data_and_Citizens_Rights_of_Privacy_in_the_Fight_against_the_Financing_of_Terrorism_8页_114kb

Summary of "Protection of Personal Data and Citizens' Rights of Privacy in the Fight against the Financing of Terrorism"

Core Content

This paper by Yves Moiny, Deputy Crown Prosecutor of Belgium, critically examines the impact of Council Regulation n° 881/2002 on the protection of personal data and the rights of citizens in the context of counter-terrorism efforts. It highlights the tension between national security measures and European human rights standards, particularly in relation to the freezing of assets and the collection of personal data.

Main Concepts of Council Regulation n° 881/2002

Council Regulation n° 881/2002 was designed to implement UN Security Council decisions to freeze the assets of individuals and entities linked to Usama bin Laden, Al-Qaida, and the Taliban. It defines "funds and economic resources" broadly, including those belonging to or controlled by designated terrorist groups. The regulation prohibits any direct or indirect financial support to these groups and requires member states to freeze such assets.

Comparison with Preceding Regulations

• Council Regulation n° 2580/2001: Dealt with a broader range of terrorist groups, not just those linked to Al-Qaida and the Taliban. It provided more detailed definitions of terms like "financial services" and "economic actors" and included an exemption regime that allowed for certain authorisations for essential needs or legal obligations.
• Key Differences:
  • List Management: Regulation n° 2580/2001 allows the Council to establish, review, and amend the list of persons, groups, and entities, whereas Regulation n° 881/2002 leaves this responsibility to the Commission.
  • Exemption Regime: Regulation n° 2580/2001 includes an exemption mechanism, which is absent in n° 881/2002.
  • Territorial Scope: Regulation n° 881/2002 has a broader territorial application, extending to any EU citizen, regardless of location, and to entities incorporated or operating within the EU.

Issues with Collection and Processing of Personal Data

• Lack of Judicial Oversight: The data collection and processing procedures under Regulation n° 881/2002 are largely administrative, with no direct judicial oversight. This is a concern as it may violate the European Court of Human Rights (ECHR) standards.
• Transparency Deficit: Neither regulation provides open criteria for listing individuals or entities as terrorists, leading to potential overreach and lack of clarity.
• Data Sharing: The regulation requires member states to notify the Commission of measures taken, but there is no independent body to oversee the process, which may compromise data protection and privacy.
• Supervision and Accountability: The absence of an external independent authority to supervise data management undermines the legitimacy and quality of the process.

Impact on Citizens' Rights

• Right to Remedy: Regulation n° 881/2002 does not provide citizens with an effective right to challenge the lawfulness of asset freezes, which is required by the Council of Europe Guidelines.
• Post-facto Judicial Review: The ECHR requires that individuals be able to challenge the legality of such measures before a court, but under Regulation n° 881/2002, this is only possible if the individual initiates the process.
• Reputation and Stigmatisation: Being listed as a terrorist can damage the reputation of individuals or entities, and the lack of a proper legal remedy is seen as a significant issue.
• Data Protection Directives: Directives n° 95/46/EC and n° 2002/58/EC may offer some protection, though they are not directly applicable to counter-terrorism activities. However, Article 14(a) of Directive n° 95/46/EC allows individuals to object to the processing of their data even in national security contexts, potentially offering a remedy not present in Regulation n° 881/2002.

Conclusion

Council Regulation n° 881/2002 has significantly curtailed European human rights standards in the fight against terrorism financing. It lacks transparency, effective legal remedies, and a consistent legal framework, leading to inconsistencies in the application of asset freezing measures across the EU. The absence of a single supervisory body and the increasing involvement of the private sector in these processes further complicate the balance between security and privacy. Without a harmonised and transparent approach, the risk of data misuse and the erosion of citizens' rights increase. The paper calls for a more coherent and rights-respecting legal structure to address these concerns.