Report for the netherlands



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AGIS PROJECT JAI/2003/AGIS/002

Feasibility Study on the creation of a database on investigations and prosecutions

REPORT FOR THE NETHERLANDS

by Dr. R.E. Leenes

Centre for Law, Public Administration and Informatization, Tilburg University

Consulted authorities:

L.P. Mol Lous

A.M.C. Boerwinkel

Ministry of Justice, Department of Criminal and Sanction Law

P.O. Box 20301

2500 EH The Hague


The following report is based on a meeting with the two experts on 9 June 2004 and a study of the relevant legislation and other sources.

Preliminary remarks:

In the following text the Dutch names for statutes, organizations and databases are printed in italic.

The Netherlands is divided into 25 police districts that have a large amount of discretion with respect to the organization of their daily operations and the IT systems they use. On top of the 25 police districts, there is the nationally operating KLPD (Netherlands's National Police Agency, Korps Landelijke Politie Diensten), which is responsible for transregional crime investigations.

As a result of the local autonomy there is a multitude of IT systems and databases in operation within the various districts and the national level. This hampers the exchange of data between the police districts and between the districts and the KLPD.

With respect to the judicial system, the Netherlands is divided into 19 district courts (arrondissementen), in 5 courts of appeal (ressorten) and 1 High Court (Hoge Raad). The judicial districts and circuits are also autonomous with respect to their IT use.

Relevant legal sources:

With respect to databases (or registers) for (police) investigations and (judicial) prosecution, the following statutes and decrees:

Wpolr - Wet politieregisters (Police Records Act), see wpolr.doc

Wet van 21 juni 1990, houdende regels ter bescherming van de persoonlijke levenssfeer in verband met politieregisters.

Bpolr - Besluit politieregisters (Decree on police registers), see bpolr.doc

Besluit van 14 februari 1991, houdende bepalingen ter uitvoering van de Wet politieregisters

Wpolr prop - Wet politieregisters (new Police Registers Act),

proposal for a new statute on police registers, 'wpolr proposal.pdf' + explanatory memorandum 'wpolr exp memo.pdf'

Wjusr - Wet justitiële gegevens (Statute on judicial data), see wjusr.doc

Wet van 7 november 2002 tot wijziging van de regels betreffende de verwerking van justitiële gegevens en het stellen van regels met betrekking tot de verwerking van persoonsgegevens in persoonsdossiers

Bjusr - Besluit justitiële gegevens (Decree on judicial data), see bjurs.doc

Besluit van 25 maart 2004 tot vaststelling van de justitiële gegevens en tot regeling van de verstrekking van deze gegevens alsmede tot uitvoering van enkele bepalingen van de Wet justitiële gegevens

Wbp - Wet bescherming persoonsgegevens (Personal Data Protection Act), see 'Personal Data Prot Act.doc'

Wsv - Wetboek van strafvordering (Code of criminal procedure)


Also relevant are, of course, the Europol and Eurojust treaties, as well as the Schengen treaty and the Recommendation No. R (87) 15 of the Committee of Ministers to Member States regulating the use of personal data in the police sector.

Question 1:

With a view to criminal investigations, the police districts maintain numerous databases, both of a temporary as well as of a permanent nature. The Wpolr (Police Registers Act) distinguishes:



  • temporary databases (registers) (article 1 para 1j Wpolr). These concern databases enacted for a specific enquiry or preliminary enquiry. These registers can take all sorts of forms, from highly unstructured (e.g. Word documents) to structured (e.g. a relational database).

  • pending database (voorlopig register) (article 1 para 1m Wpolr). A register enacted for a police task containing personal data, pending incorporation into the serious crimes database. Whether or not the information is entered into the serious crimes database depends on other data to be examined later.

  • serious crimes database (ZwaCri) (article 1 para 1l Wpolr). A database enacted for police tasks relating to:

    • organized crimes listed in article 67 section 1 of the Code of Criminal procedure (Wetboek van strafvordering), having a grave disturbing effect on society.

    • crimes with a maximum penalty of eight years or more

    • crimes described by Orders in Council based on article 67 section 1 of the Code of Criminal procedure (Wetboek van strafvordering), having a grave disturbing effect on society.

Permanent databases in use are the HKS (Herkenningsdienstsysteem, Recognition system) and the OPS (Opsporingsregister, Investigation database) databases. The serious crimes databases are maintained at the district level, but also at the national level such a database exists. Local and national databases may have different formats.


The KLPD maintains a number of national databases, most notably:

  • the VROS (Verwijsindex Recherche Onderzoeken en Subjecten, Referral database Criminal Investigations and Subjects), which contains information on current investigations supplied by the police districts; VROS contains two indexes:

    • CIE index - this index contains data on people listed in the ZwaCri database and people and organizations listed in the temporary registers in the police districts.

    • MRO (Melding recherche onderzoeken, Notification of criminal investigations). This index contains information on investigations with the various districts.

  • the ZwaCri (Serious Crimes) database, which contains information on trans district serious crimes.

  • Viclas, the Violent Crime Linkage Analysis System, a national database for tracking violent offenders and the offenses they commit. It captures, collates and compares crimes of violence through the analysis of victimology, offender/suspect description, modus operandi, forensic and behavioural data.

  • National OPS, the national version of the investigation database.

The databases only contain data relevant for specific criminal investigations. This means they have a temporary nature, and data has to be removed when no longer relevant for a specific investigation.

The databases themselves do not have a legal basis, except for the serious crimes database (register zware criminaliteit, article 1 para 1l Wpolr). The use of databases (storage, processing, erasure of data, etc) is regulated by means of the Police Registers Act (Wpolr) and the Decree on police registers (Bpolr). The statute and its accompanying decree are to a large extent data protection laws and they are based on the Personal Data Protection Act (Wbp).

Question 2:

With respect to prosecution, the distinction in regional and central databases also exists. On the district level the districts are to a certain extent free to devise their own systems. The relevant systems in use are:



  • Compas - Communicatiesysteem Openbaar Ministerie - Parket Administratie Systeem (Communication system for the Public Prosecutor - Roll Administration System). This is the core administrative system within the penal system. All cases are entered in COMPAS.

  • VIPS (Reference Index Criminal Law), a system that keeps track of people in the criminal law chain.

  • LURIS, (Landelijk Uniform Registratiesysteem voor Internationale Rechtshulpverzoeken, National Uniform Register for mutual Legal Assistance). This register keeps track of requests for judicial data stemming from other countries.



These systems primarily contain information on criminal prosecutions, although also information from other sources (e.g. the Tax authorities) may be included if relevant to a particular case.

As with the investigative databases, the prosecution databases as such, do not have a legal basis. The collection and use of personal data within the prosecution is regulated by the 'Wet op de justitiële gegevens' (Statute on judicial data, Wjusr). Also the 'Wetboek van Strafvordering' (Code on criminal procedure) contains relevant provisions with respect to the use of personal data within prosecutions.


Question 3:

Only national authorities have access to data in the various databases on a need to know basis. As said, many registers exist on the local (regional or district) level. The local agencies adhere to local registers as these offer more control over the data and its potential misuse. Many data pertain to information provided by informants and they, as well as local investigations, may be better protected and served by restrictive data exchange. This hampers investigations and hence efforts are undertaken to improve the data exchange between the various actors and agencies involved in investigations and prosecutions. These are sought in improving the procedures, as well as in the development of centralized databases. The development of centralized databases provides technical challenges as the various local registers show a large variance in structure, actuality etc. And, local rational and irrational interests have to be balanced against possible improvements with respect to efficiency and effectiveness of central databases.

Another development is the ANITA project which studies the use of intelligent agents to aid the information exchange.1 The agents are associated to a particular register and 'guard' the database in the sense that they only allow data to be exchanged when the requester meets the proper requirements as set by data protection rules and (local) policy. They assess requests for data made by other agents.

So, both centralized improvements as well as improvements that adhere to distributed datasets are under development.


The sharing of data with foreign agencies is handled by the Wpolr for investigations and the Wjusr for prosecutions. Foreign agencies do not have autonomous access. They have to request particular data, stating the purpose, necessity, etc. Requests for data are handled by the eight Regionale Internationale Coördinatiecentra (regional International Coordination centers) IRCs and one national Landelijk Internationaal Coördinatiecentrum L-IRC. These centres are joint units of police and the Public Prosecutions Department. Requests from Schengen countries are routed directly to the relevant district or region. Request from other countries are routed to the Ministry of Justice.

Question 4:

All databases need to have explicit purposes (e.g. articles 9 and 10, Wpolr). This requirement is in accordance with the requirements in the Wet Bescherming Persoonsgegevens (Personal Data Protection Law), which is the national implementation of EU Directive 95/46/EG. The goal of each database determines at which stage data is introduced to a particular database. For instance, when a criminal investigation starts, a temporary database will be created for storing data on this investigation.


Question 5:

The basic rule is that the principle of specified purpose (doelbinding) determines when data has to be erased. This, in general, is the case when an investigation is closed, as the purpose for storing information no longer exists. Another reason for erasing data after a limited period of time, is to prevent stale data from being used in investigations. For this reason data retention periods are defined for the various registers depending on their purpose and use. As there are many registers with many different uses, a great variance in retention periods can be seen.

Data retention rates are described by law for the various types of registers. Data in permanent registers, such as OPS and HKS, have retention periods of between five and 30 years. The Wpolr also contains special provisions for data retention in some of the defined databases. Data in temporary registers (tijdelijke registers) have to be deleted six months after they were entered in the database (article 13b para 5 Wpolr).

Data in the serious crimes database (ZwaCri) and the CIE have to be erased when they are no longer required, or five years after the last data on a subject was entered, provided that this data showed the relevancy of retaining the subject in the database (article 13a para 8 Wpolr).

Apart from the legal provisions in the Data protection acts and decrees, also the privacy code obligatory for each register maintained by the police (articles 9/10 Wpolr) must provide provisions on the erasure of data (article 10 para 2d Wpolr). These retention periods will be derived from the relevant legal provisions in data protection laws.

For prosecution data different retention periods, and different motives for erasing data exist. Wjusr articles 4, 5, and 6 contain provisions on the deletion of data stored in judicial registers. Article 4 Wjusr states that data has to be erased 20 years after a final sentence is passed, or after the person has died. Data pertaining to offences against public decency as defined in articles 240b thru 250 of the Dutch Penal Code are to be erased after the person has died. Article 5 Wjusr prolongs the data retention period for sentences of three years or longer and terbeschikkingstelling and inclusion in institutes for youngsters with the length of the sentence. The retention period is further prolonged by ten years in the case of crimes with a maximum penalty of eight years or more.

Article 6 Wjusr determines that data on summary offences have to be deleted after five years, or ten years in the case of conditional punishment. In practice, data is often not deleted when required by the various provisions.

Question 6:

As most registers do not have a legal basis, only their use is handled by legislation. The purpose of the various databases is not clearly described in legal sources but in general they have to be necessary for police tasks (Wpolr, article 4 para 1).

Personal data may only be processed for legitimate purposes that are necessary for a particular, well-described task. These requirements stem from the WBP (general data protection act) and are also included in the Wpolr and Wjusr. Hence, one can in general say that the databases are enacted for purposes pertaining to either specific investigation or specific prosecution. General databases with, for instance, information on suspects are not in accordance with these principles.

As both the general and the special data protection laws state that the purpose of datasets have to be explicated in the privacy code obligatory for each dataset, there is a multitude of purposes. In general, the registers are either meant for daily police of judicial operations or they contain data on solved and open cases.

Some judicial registers pertain to convicted criminals.

Question 7:

There is collaboration with foreign agencies in various ways. For serious crimes, the collaboration takes place in accordance with the Europol treaty. The treaty describes the authorities that have access to the Europol data (article 7).

For 'smaller' crimes, there is much cross-border collaboration, especially in border regions (Verbeek, 2004). Both formal and informal collaboration can be seen in practice. Again, especially in border regions, informal data exchange takes place on a reciprocal basis. This kind of data exchange is not always legitimate.

The formal data exchange has to go through one of the eight the IRCs (Internationaal Rechtshulp Centrum, International Mutual Assistance Centres), and/or the national IRC, which routes the request to the relevant police districts, the KLPD or judicial districts. These share data with the IRCs. The exchange of data is handled in accordance with the provisions in Wpolr, Bporl (article 13) and Wjusr.

The 2001 European Convention on Mutual Legal Assistance requires changes to the Wjusr. These have not been implemented yet (as of June 2004), but are under consideration of parliament. One of the proposed changes is a new article 39e section 1j of the Wjus which opens the way to provide prosecution data to foreign agencies, such as Europol and Eurojust. Article 39e section 1a will also pave the way to supply data to a European Public Prosecutor, should such an institute be enacted in the future.

Bpolr also contains provisions with respect to the exchange of data requested by foreign agencies (article 9). A new article 13a Bpolr provides measures for the exchange of data in joint international investigation teams. A relevant provision in this light is also the new article 552qa of the Code of Criminal Procedure.

In general, the exchange of police data with foreign agencies is handled by the KLPD (article 13 para 7 Bpolr).
Also data exchange in relation with the Eurojust treaty exists. The treaty describes the authorities authorized to access Eurojust data (article 9).

Question 8:

The Personal Data protection act (Wbp) and the special data protection acts (Wpolr and Wjusr) provide requirements for the exchange and processing of data. These acts implement EU Directive 95/46/EU. Also article 8 UHCR is relevant.

Relevant restrictions are:


  • data will only be provided on a specified request. Either the case or the subject has to specified in sufficient detail (article 13 para 1 sub c Bpolr);

  • the purpose for which the data will be used has to be specified (e.g. Wpolr, article 4 para 2; Bpolr article 13 para 5). The Dutch police officer responsible for the data requested, has to assess whether the intended use, the nature of the data and 'the nature' of the recipient country justify the data exchange.

  • need to know (e.g. Wpolr article 4 para 1; Bpolr article 13 para 6). The data has to be necessary to perform a legitimate task in the recipient country.

  • no data is provided if the use of the data is thought to be the prosecution of a person on the basis of his religion, race, nationality, political opinions (Bpolr article 13 para 8).

  • data security - the necessary measures to guarantee the security and integrity of the data have to be taken (article 4 para 3 Wpolr)

Question 9:

In general, all registers containing personal data are subject to the Personal Data Protection Act, which states (article 7) that 'Personal data shall be collected for specific, explicitly defined and legitimate purposes.'

Wpolr in article 4 para 1 provides a lex specialis for this provision in the field of police investigations. It states that police records can only be kept for specified purposes necessary for properly conducting police tasks. Para 2 further states that the register may only contain data acquired in a legal manner and necessary for the purpose for which the register was enacted. Para three states that the responsible person for the register has to take actions to guarantee the accuracy and completeness of the stored data.

No data may be registered pertaining to religion, race, political opinions, intimate behaviour, medical or psychological characteristics (article 5 para 1 Wpolr).

The Wpolr provides for a closed regime for providing information. This means that the collection and receipt of police data or the provision of these data is governed by regulations.

These requirements do not restrict the creation of national databases for investigations and prosecutions, but they do provide restrictions to their use and content.


Question 10:

In the new Wpolr, currently under consideration of parliament, provisions are incorporated that allow for more 'flexible' exchange of data (both on an incidental basis (article 17), as well as on a structural basis (article 18)).

For prosecution data the Wjusr contains a provision that allows for data transfer to agencies or persons entrusted with a public task, by Order in Council (article 9 Wjusr). The Order in Council can set limitations with respect to the data and its use. Also the use of the data has to be limited to the purpose for which they were provided, unless stated otherwise in the Order of Council.

Question 11:

There has not been much debate in the Netherlands with respect to this topic. At present the focus is on improving the flow of personal data with respect to investigations and prosecutions information within the Netherlands.

In general a guideline in the Netherlands is that databases containing personal information are only permissible if they have a legitimate, well-defined purpose. They have to be necessary for properly carrying out police or judicial tasks. This excludes the deployment of databases without a purpose for concrete cases (except for databases on convicted criminals and closed cases). It is hard to see what the use or purpose of an EU database on investigations or prosecutions would be, and hence would need further specification in order to provide a more detailed point of view.

The provision of data to foreign actors or agencies is only permissible if there is a concrete request as described in article 13 Wpolr.


Question 12:

A basic principle on databases in the field of investigations and prosecutions is that registers have to concern concrete cases and need a well-specified, legitimate purpose. This principle can be circumvented by law, but until now there has been no need or urge to do so, apart from Eurojust or Europol.

It is unclear as of yet what an EU database would amount to, so it is hard to give a definite answer to the question whether this would be acceptable to the Dutch legal order.

The matter of a judicial/quasi judicial authority is not under consideration in the Netherlands at present, so again, no definite answer can be given.


Question 13:

The Dutch criminal law system has a closed system of evidence (article 339 Code of Criminal Procedure). Evidence can be provided by official records by authorized persons and institutions (article 344 para 1 1 sub 2 Code of Criminal Procedure). This may exclude information obtained from EU databases, except if these are mandated by existing treaties or statutes, or new provisions are enacted by law. The court will judge on the permissibility of evidence, which makes it hard to tell whether it will accept evidence obtained from a database that does not exist (yet).


Question 14:

Again, as discussions on EU databases for investigations and prosecutions are not on the Dutch agenda, it is hard to tell which crimes could be included in such a database. It is likely though, that serious crimes are candidates as they are already part of Europol and Eurojust and there already are registers for these crimes in the Netherlands (ZwaCri registers).


Question 15:

The principles of legitimate, well-described purposes will probably have to have to be safe guarded. Also proper protection measures are obvious candidates. The Eurojust and Europol treaties also contain relevant provisions in this respect, as does the EU Data protection Directive.


Question 16:

As the KLPD and the National Public Prosecutions Department play a central role in the current exchange of data with foreign agencies, it is likely they will also play a role if a EU database would be enacted. But this is mere speculation as it is not actively discussed in the Netherlands.


Question 17:

Again, as this matter is not actively discussed within the Ministry of Justice, we can only assume that the regime currently in operation would stand model for a transnational regime. It seems unlikely that the notion of legitimate purpose and necessity for a specified police/judiciary task would be abandoned as a guiding principle with respect to the protection of personal data.


Question 18:

This topic is not debated as of yet,


Question 19:

No relevant data is available on this topic.


Question 20:

We have contacted the various political parties on this topic, but have not received any response yet. This may be due to the frantic surrounding the European Parliamentary elections of 10 June 2004 in the Netherlands. Based on the party programs, we come to the following viewpoints relevant to the topics of this questionnaire:


Christian Democrats (CDA):

The CDA favours closer co-operation of the police and judiciary organizations in the EU. Europol and Eurojust are key organizations in this respect. An EU Commissioner should be responsible for their operation, whereas Europol should report to the EP. The CDA also favors an EU warrant. It is not clear whether they oppose or favor an EU database. Effective and efficient data exchange is endorsed.

Labour Party (PvdA):

The PvD wants to harmonize substantive criminal law with respect to cross border crimes. The Labour party does not seem to have a clear standpoint on EU databases, as their election program does not even mention EU aspects of criminal investigations and prosecutions (in contrast to some other party programs).

Liberal Democrats (VVD):

As the cross border flow of people and goods threats the safety of EU citizens, a closer collaboration between EU member states in crime prevention, investigation and prosecution is deemed necessary. Europol should be better equipped to play its role in this respect. Close collaboration of police and judiciary in the EU is of prime importance. They do not express an opinion on whether this collaboration would require EU databases.

Green Party (GroenLinks)

GroenLinks favors an EU Public Prosecutor's Department with jurisdiction to a limited set of what the call eurocrimes. Effective control of this office by the EP and also legal safeguards are required. EU wide collaboration of police and judiciary is required and this calls for a certain amount of harmonization of the criminal procedure.

Democrats (D66):

Collaboration to counter cross border crimes is essential. Europol should be strengthened. Serious crimes should be registered by Europol in a central database accessible from all member states, under control of the EP.

Data protection and a balance of the individual's privacy and the interests of crime prevention are important.

Small Christian parties (ChristenUnie/SGP):

EU member states should have effective and reliable national police and judicial IT infrastructures. Fighting EU crimes starts within each member state. Bilateral and EU collaboration of police and judiciary is important. Strengthening Europol and Eurojust are proper measures to accomplish more effective and efficient crime control. They favour open collaboration standards as opposed to central databases and harmonization of procedures and substantive criminal law. No EU judiciary as of yet, as this is a few bridges too far.

Question 21:

This question is hard to answer in general. Many people consider crime to be a major problem, but others don't. Some of the popular media, such as the newspaper 'De Telegraaf', consider crime to be more of a problem than others.

Some incidents with regards to what is called 'useless violence' (zinloos geweld) whereby random people where killed by (groups) of youngsters have fuelled people's fear of crime. Also the assassination of LPF political leader Pim Fortuyn, and the fear surrounding terrorist attacks and the War on Terror has contributed to a raised fear/awareness of crime. Crime rates (for crimes such as burglaries) are dropping.
The following is based on an analysis of the party programmes, as the parties themselves have not responded to our questions yet, see question 20.

All political parties consider crime and public safety to be a serious problem that requires attention. In general crime prevention is more of an issue to the parties on the right of the political spectrum (VVD, CDA, LPF, Christen Unie/SGP) than to those on the left of this spectrum (PvdA, D66, Groen Links, SP).

CDA:

International organized crime and terrorism are serious problems. International collaboration and data sharing should be used to address these problems.



PvdA:

Crime is important with a focus on street violence.

VVD:

Crime is a serious problem.



GroenLinks:

Crime is not very high on the GroenLinks political agenda.

ChristenUnie/SGP:

(Cross border) crime is a relatively important issue.

D66:

Crime is a relatively important issue.


Question 22:

There is no reduction of police powers in the Netherlands. There is discussion on providing the police with more powers to combat terrorism and serious crimes.


References:

Algemene Rekenkamer, Uitwissleing van opsporings- en terrorisme-informatie, Kamerstukken II, 2002-2003, 28 845, nrs. 1-2.

Bjusr - Besluit justitiële gegevens (Decree on judicial data), see bjurs.doc

Besluit van 25 maart 2004 tot vaststelling van de justitiële gegevens en tot regeling van de verstrekking van deze gegevens alsmede tot uitvoering van enkele bepalingen van de Wet justitiële gegevens

Bpolr - Besluit politieregisters (Decree on police registers), see bpolr.doc

Besluit van 14 februari 1991, houdende bepalingen ter uitvoering van de Wet politieregisters

Verbeek, Joop, Politie en de nieuwe internationale informatiemarkt, grensregionale politiële gegevensuitwisseling en digitale expertise, Den Haag: SDU uitgevers, 2004.

Wbp - Wet bescherming persoonsgegevens (Personal Data Protection Act), see 'Personal Data Prot Act.doc'

Wjusr - Wet justitiële gegevens (Statute on judicial data), see wjusr.doc

Wet van 7 november 2002 tot wijziging van de regels betreffende de verwerking van justitiële gegevens en het stellen van regels met betrekking tot de verwerking van persoonsgegevens in persoonsdossiers

Wpolr - Wet politieregisters (Data Protection (Police Files) Act), see wpolr.doc

Wet van 21 juni 1990, houdende regels ter bescherming van de persoonlijke levenssfeer in verband met politieregisters.

Wpolr prop - Wet politieregisters (Statute on police registers),

proposal for a new statute on police registers, 'wpolr proposal.pdf' + explanatory memorandum 'wpolr exp memo.pdf'

Wsv - Wetboek van strafvordering (Code of criminal procedure)

Web references:

ANITA project

http://www.rint.rechten.rug.nl/onderzoek/anita/anita.html

Criminal Justice system in the Netherlands

http://www.rechtspraak.nl/about_jurisdiction/how_does_the_justice_system_in_the_netherlands_work/criminallaw.htm

Dutch Data Protection Authority

http://www.cbpweb.nl/en/index.htm

Dutch Legislation (official)

http://wetten.overheid.nl

Eurojust


http://www.eurojust.eu.int/index.htm

Europol


http://www.europol.net/

Ministry of Justice

http://www.justitie.nl/english/

KLPD


http://www.politie.nl/KLPD/

Parliamentary documents (official)

http://parlando.sdu.nl/cgi/login/anonymous

Policing in the Netherlands (This brochure shows how the 'skeleton' of the Dutch police is made up. It contains subjects as organisation, recruitment and selection, and international police co-operation.)



http://www.minbzk.nl/contents/pages/7350/Politieinnederland_eng.pdf

1 http://www.rint.rechten.rug.nl/onderzoek/anita/anita.html



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