Abstract
This chapter investigates how a complex EU criminal justice procedure, the European Arrest Warrant (EAW), has been implemented and is performing its function through the support of a pre-existing information infrastructure: the Schengen Information System (SIS). Below the apparently seamless surface of the enabling information infrastructure lays a world of complexity. The infrastructure supports the transmission of data as well as sensemaking and the solution of se-mantic, administrative and procedural micro-issues through its human ‘intelligent’ components operating in ad hoc organisational units. Complexity is embedded in the heterogeneous, loosely integrated, and time bounded components of SIS. The chapter also investigates how the attempt to introduce a more complete Schengen Information System (SIS II) in order to fully satisfy EAW requirements resulted in a never-ending normative and technological development phase. Building on this wealth of experience, the chapter provides an in-depth view of the dynamics affecting the development of large transborder information infrastructures support-ing the circulation of legal agency.
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Notes
- 1.
The author wishes to express his gratitude to all the experts and informed participants who supported the data collection, and in particular to the personnel of the Italian SIRENE Bureau and of the Directorate for International cooperation (Ufficio II) within the Directorate General for Criminal Justice of the Italian Ministry of Justice. Special thanks go to Francesco Contini and Giovan Francesco Lanzara for very useful comments and support. The opinions expressed in this chapter are those of the author and do not necessarily reflect the positions of the aforementioned persons and institutions.
- 2.
‘Agency is broadly defined here as the capacity of an entity—human or nonhuman, material or symbolic—to produce effects upon a state of affairs. By “circulation of agency” we mean the possibility for such capacity to be transmitted across multiple media, national borders and functional domains’ (see Chap. 1).
- 3.
The communication exchange which takes place is not only passively describing a given reality but is also performative because it changes the social order it is describing and ‘re-establish(es) relations between citizens within a legal order’ (Mohr and Contini 2011, 999).
- 4.
The concept of assemblage, derived by the definition provided by Lanzara (2009), allows the evocation of the heterogeneous and loosely integrated nature of the EAW, a system characterised by the presence of distinct components of a normative, technological and organisational nature, a system that is constituted by—and at the same time is the result of—a multiplicity of actors and authority structures that emerge and define their role over time, none of which is exercising full control over the system or its development. It is a net of situated interventions and design activities that are bounded in space and time; of intervention and activities that tend to be ‘local’ and fragmented, focused on maintaining, updating, adapting and patching together one or more technological, organisational and legal components, confronting unexpected events, drifts and deviations from the planned development path. Its components have been often designed for other scopes and are still performing other tasks. Its essence is continuously defined and redefined in a process that takes place through mediation and negotiation, in which governance structures are explored, experimented and temporarily adopted. In the assembling, existing administrative routines, interfaces and jurisdictions are more or less intentionally redesigned to reach a technical, functional and institutional compatibility.
- 5.
Hanseth and Lyytinen define information infrastructures as a ‘shared, open, heterogeneous and evolving socio-technical system of Information Technology (IT) capabilities. … IIs [information infrastructures] are recursively composed of other infrastructures, platforms, applications and IT capabilities and controlled by emergent, distributed and episodic forms of control. II’s evolutionary dynamics are nonlinear, path-dependent and influenced by network effects and unbounded user and designer learning’ (Hanseth and Lyytinen 2010, 1).
- 6.
- 7.
Art. 9 EAW FD, Council Framework Decision 2002/584/JHA
- 8.
See Lanzara, Chap. 1.
- 9.
On the topic see for example Kurtovic and Langbroek (2010).
- 10.
- 11.
- 12.
- 13.
- 14.
- 15.
Co-financed by the European Commission JLS/2007/JPEN/245; for more details see Velicogna (2010).
- 16.
Co-financed by the European Commission JLS/2009/JCIV/AG/0035.
- 17.
Persons wanted for extradition to a Schengen State.
- 18.
Article 98: persons wanted as witnesses, or for the purposes of prosecution or the enforcement of sentences.
- 19.
Article 99: persons or vehicles to be placed under surveillance or subjected to specific checks.
- 20.
Supplementary information.
- 21.
Miscellaneous information.
- 22.
An issue that has arisen in the EAW evaluation reports ‘is the scrutiny and flagging in the SIS of alerts for arrest for surrender purposes without the matter being put before the competent executing judicial authority for consideration. This is a major issue for the operation of the EAW, since the flagging of an alert may de facto amount to non-execution of the underlying EAW’ (Council of the European Union 2009b, 17).
- 23.
If the competent issuing authority does not provide an Italian translation of the EAW (or the SIS alert) to the Italian Ministry of Justice or to the competent Judicial Authority within 10 days of the validation of the arrest by the Court of Appeal, the order imposing the coercive measures is null and void. If the EAW in Italian is delivered and there is still a danger that the person may abscond, new coercive measures can be ordered. The order can be challenged before the Supreme Court of Cassation. The appeal may be lodged by the legal counsel of the requested person or by the public prosecutor general of the Court of Appeal in the interest of the law.
- 24.
Art. 17.6. of the Italian EAW FD implementing law. See also Council of the European Union (2009a, 31).
- 25.
If it is not possible to immediately deliver this statement, the Court of Cassation should deliver the statement within 5 days of reaching a decision.
- 26.
See also: Council of the European Union (2009a, 32).
- 27.
See for example: Council of the European Union (2009b).
- 28.
Council of the European Union (2009b, 6).
- 29.
- 30.
- 31.
- 32.
- 33.
Art.92.2. of the Convention Implementing the Schengen Agreement.
- 34.
Ibidem.
- 35.
- 36.
In particular, according to Art 92.3. of the Convention Implementing the Schengen Agreement, C-SIS comprises a data file that will ensure via online transmission that the data files of the national sections contain identical information.
- 37.
Council of the European Union, (2004), Note 12465/04 LIMITE SIRIS 92 COMIX 557 from the Spanish delegation to SIS/SIRENE Working Party (EU-Iceland and Norway Mixed Committee) on ‘Connection of new States to SISNET’.
- 38.
ITU-T (previously CCITT) Recommendation X.25: Interface between Data Terminal Equipment (DTE) and Data Circuit-terminating Equipment (DCE) for terminals operating in the packet mode and connected to public data networks by dedicated circuit (Geneva, 1976; amended at Geneva, 1980; Malaga-Torremolinos, 1984; Melbourne, 1988; Helsinki 1993; revised in 1996). For more information see http://www.itu.int/rec/T-REC-X.25/en
- 39.
The first edition of the X.25 Recommendation was approved in 1976, http://www.itu.int/en/ITU-T/studygroups/com17/Pages/history.aspx
- 40.
The network lines were leased by the French Government between C. SIS and the French border and by each Member States from the French border to the Member State. At the same time, each Member State had purchased and was the owner of the crypto devices (Kryptoguards) used on the network (Council of the European Union, (2002), Note 12436/1/02 REV 1 LIMITE SIS-TECH 137 COMIX 539 from SIS-TECH Working Group (EU-Iceland and Norway Mixed Committee) to SIS-SIRENE Working Group (EU-Iceland and Norway Mixed Committee) on ‘Information about the SISNET’.
- 41.
s-TESTA is the European Community’s own private, IP-based network dedicated to inter-administrative requirements and providing guaranteed performance levels. s-TESTA has been created to offer a telecommunications interconnection platform that responds to the growing need for secure information exchange between European public administrations. s-TESTA has been build on the experience of a preceding network (TESTA). Its kick-off was in mid 2007, and full migration was achieved by end of April 2008. http://ec.europa.eu/idabc/en/document/2097/5644.html
- 42.
A large number of disparities were detected between the databases of France and Luxembourg and those of other countries; these differences date back to April 1996 and had not been rectified 6 months later (JSA 1997).
- 43.
Approximately once every 6 months (JSA 1997).
- 44.
Taking up several months to be carried out (JSA 1997).
- 45.
‘enabling them to access and change the contents of any file in the computer system (operating system, database and network) and to erase any trace of their action’ (JSA 1997).
- 46.
‘to verify in retrospect the operations carried out by the users, regardless of priority (date, time, terminal, user ID, type of operation)’ (JSA 1997).
- 47.
SIRENE stands for Supplementary Information Request at the National Entry.
- 48.
- 49.
Art 92.4 of the Schengen convention was added through Council Regulation (EC) No 871/2004 and Council Decision 2005/211/JHA: ‘member states shall, in accordance with national legislation, exchange through the authorities designated for that purpose (Sirene) all supplementary information necessary in connection with the entry of alerts and for allowing the appropriate action to be taken in cases where persons in respect of whom, and objects in respect of which, data have been entered in the Schengen Information System, are found as a result of searches made in this system.’
- 50.
These instruments were modified in 2006, extending the period of their validity until 31 December 2008.
- 51.
Regulation (EC) No 1987/2006 of the European parliament and of the Council of 20 December 2006 on 1st pillar aspects of the establishment, operation and use of SIS II and Regulation (EC) No 1986/2006 on access to SIS II by the services responsible for issuing vehicle registration certificates.
- 52.
Council Decision 2007/533/JHA determining 3rd pillar aspects of the establishment, operation and use of SIS II.
- 53.
- 54.
The Spanish initiative (OJ C 160, 04.07.2002, p. 5 and 7) resulted in Council Regulation (EC) No 871/2004 of 29 April 2004 and Council Decision 2005/211/JHA of 24 February 2005 ‘concerning the introduction of some new functions for the Schengen Information System, including in the fight against terrorism’.
- 55.
- 56.
- 57.
- 58.
- 59.
- 60.
- 61.
- 62.
http://www.mvr.bg/en/Shengen/sis.htm. Furthermore, ‘On January 28, 2011, the meeting of the Schengen Evaluation Working Party took place in Brussels. On this occasion, the group adopted the Schengen evaluation report in the field of SIS/SIRENE for Romania, drafted after the last evaluation mission which took place in Romania during December 6–10, 2010. Thus, Romania successfully concluded the Schengen evaluation process’ (http://www.schengen.mai.gov.ro/English/index09.htm).
- 63.
Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA.
- 64.
Council Regulation (EC) No 189/2008 and Council Decision 2008/173/EC.
- 65.
Council Regulation (EC) No 1104/2008 and by Council Decision 2008/839/JHA.
- 66.
Furthermore, ‘the Council of 4–5 June invited the Commission to build upon the experience and lessons learned from this management structure and develop it further. These management changes have been consolidated in the legislative proposal for a Regulation to amend the migration instruments’ (European Commission 2009b).
- 67.
In close cooperation with the SIS II Task Force and in consultation with the appropriate instances (European Commission 2009a).
- 68.
Regulation (EU) 541/2010 amending Regulation (EC) no 1104/2008 and Council Regulation (EU) 542/2010 amending Decision 2008/839/JHA.
- 69.
- 70.
By Council Regulation (EC) No 871/2004 and Council Decision 2005/211/JHA.
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Laws and Regulations
Commission Implementing Decision 2011/406/EU
Council Decision 2001/886/JHA
Council Decision 2005/211/JHA
Council Decision 2007/533/JHA
Council Decision 2008/173/EC
Council Decision 2008/839/JHA
Council Framework Decision 2002/584/JHA
Council Regulation (EC) 1104/2008
Council Regulation (EC) 189/2008
Council Regulation (EC) 2424/2001
Council Regulation (EC) 871/2004
Council Regulation (EU) 542/2010
Regulation (EC) 1986/2006
Regulation (EC) 1987/2006
Regulation (EU) 541/2010
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Velicogna, M. (2014). The Making of Pan-European Infrastructure: From the Schengen Information System to the European Arrest Warrant. In: Contini, F., Lanzara, G. (eds) The Circulation of Agency in E-Justice. Law, Governance and Technology Series, vol 13. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7525-1_8
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