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Criminal Intelligence in the EU

Final Report Summary - EUCRIMINTEL (Criminal Intelligence in the EU)

The study “European criminal intelligence” has explored the role of criminal intelligence in Europe with a view to assessing its efficacy in the fight against crime and to finding ways for improvement. In particular, the aim of the study was to 1) reconstruct the fragmented picture of intelligence at EU level, mapping all bodies who are involved at EU level with intelligence functions; 2) lay a general theoretical framework for intelligence in the EU; 3) research the role and quality of intelligence analysis and the use made of intelligence; 4) evaluate the role of intelligence and its potential also in light of the respect owed to fundamental rights and the democratic principle of transparency and accountability and explore possible solutions for improving the efficiency of EU intelligence action.
The study proved to be particularly challenging in light of the difficulty to establish a clear definition of intelligence and to build a coherent legal framework. Intelligence is a liquid concept, which does not lend itself to strict categorization. Despite this difficulty, all four steps of the research have been successfully achieved by the researcher.
With regard to step 1, the researcher has identified an overview of the different agencies and tools (well described in publication 5). The author has discovered that despite the claim that the European Union is only marginally involved in criminal intelligence, there are in fact a number of different bodies tasked with intelligence functions. However fragmentation remains predominant and it derives both from a lack of coherence in general design but also from a resistance to cooperate on the part of each agency and body.
With regard to step 2, the researcher has been able to lay a general theoretical framework by working on the notion of prevention and reshaping the concept of intelligence cycle. Compatibility between fundamental rights and intelligence can only be analysed through an analytical approach, which differentiates between the different steps of the intelligence function. Having identified the different components of the intelligence cycle the research has assessed the compatibility between each moment of the intelligence function and the fundamental rights. While it was already clear that the right to privacy and particularly the right to data protection are directly affected by intelligence collection, analysis and dissemination, one important finding of the research is the discovery that intelligence collection and analysis can breach the presumption of innocence only to a limited extent. This happens when intelligence activities become a form of total and constant monitoring of the individual’s life (see particularly attachment 2, 4, 7 and 14).
When moving at supranational level, the intelligence cycle requires to be adjusted to the different context. The intelligence cycle that applies at EU level is partly different from that applicable at domestic level, mostly due to the importance given to exchange of data between national authorities (see the attachments 3, 4).
With regard to step 3, the researcher has carried out interviews (more than 10) with relevant stakeholders and analysts from Europol, Eurojust, agents from the national police and secret services and from US security agencies (NSA and DNI, in particular) in order to find out how intelligence is crafted and used. As imagined the interviewees have accepted to be interviewed under an agreement of strict anonymity. However, the veil of confidentiality has allowed to understand better the strength and weaknesses of the work of intelligence analysts at supranational level. One important finding in this respect is that the principle of proportionality which protects all fundamental rights (and particularly data protection) is also a crucial principle to ensure greater efficiency of intelligence collection and analysis. A disproportionate gathering of information can in fact hamper the intelligence function. The quality of intelligence appears to be very good for strategic intelligence, while there is less evidence to show that the quality of operational intelligence is very high.
As for what concerns the use of intelligence (step 4), the interviews have permitted to discover that the main function of intelligence at European level is for use into policy making. With regard to the use of European intelligence within the field of criminal justice, it must be said that such use is still very limited. The research has covered extensively the case-law of Italy, France, Germany the Netherlands and that of European Courts (CJEU and ECtHR). While it has found some traces (particularly in Italy and the Netherlands) of use of intelligence within the domain of criminal justice, it has found only limited significant trace of use of European intelligence. This is a very interesting finding, which confirms that intelligence crafted at EU level is mostly for strategic purposes (see attachment 4). For this reason the research has expanded into specific national problems (use of secret evidence, use of intelligence for administrative purposes, use of intelligence for renditions) in order to identify the potential risk and advantages of using intelligence in criminal proceedings. The conclusion in this regard is that intelligence offers a valuable source of inspiration at the prosecution stage, while it should be in principle banned from trial. In this respect the most problematic area remains that of coercive/administrative measure (see in particular attachment 13) where the research concludes that the use should there too in principle be excluded, exception made only for milder (i.e. less afflictive) measures.
The impact of the research in the field is extremely high in two ways. On the one hand, it allows stakeholders to restructure the shape of the intelligence community at both national and EU level. At European level it is particularly important to devise a coherent design of the intelligence community, in combination with the development of a truly comprehensive (internal and external) security strategy. On the other hand, it permits to clarify the limits to the use of intelligence. By shedding new light into the quality of intelligence and on how intelligence is and can potentially be used within the field of administrative punitive law and criminal proceedings, the research opens new avenues for research in criminal justice studies.