О Руководстве «Sirene» и других имплементационных мерах для Шенгенской информационной системы второго поколения (SIS II)» (С (2013)1043) [рус., англ.] Часть 10

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  1. ALERTS FOR REFUSAL OF ENTRY OR STAY (ARTICLE 24 OF THE SIS II REGULATION)

INTRODUCTION

The exchange of information on third-country nationals on whom an alert has been issued under Article 24 of the SIS II Regulation allows Member States to take decisions in the case of entry or visa application. If the individual is already on the territory of the Member State, it allows national authorities to take the appropriate action for issuing residence permits, long-stay visas or expulsion. In this section references to visas concern long-stay visas, unless otherwise clearly explained (e.g. re-entry visa).

Carrying out the information procedures laid down under Article 5(4) of the Schengen Borders Code and the consultation procedures laid down under Article 25 of the Schengen Convention, falls within the competence of the authorities responsible for border controls and issuing residence permits or visas. In principle, the Sirene Bureaux shall be involved in these procedures only in order to transmit supplementary information directly related to the alerts (e.g. notification of a hit, clarification of identity) or to delete alerts.

However, the Sirene Bureaux may also be involved in transmitting supplementary information necessary for the expulsion of, or for refusing entry to, a third-country national; and, may be involved in transmitting any supplementary information further generated by these actions.

Directive 2004/38/EC of the European Parliament and of the Council <*> is not applicable in Switzerland. Therefore in the case of hit on a third country national who is the beneficiary of the right of free movement, normal consultation procedures shall be undertaken between Switzerland, the issuing Member State and any other Member State which may hold relevant information on the third country national’s right of free movement.

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<*> Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ L 158, 30.4.2004, p. 77).

 

4.1. ENTERING AN ALERT

According to Article 25 of the SIS II Regulation, specific rules apply to third-country nationals who are beneficiaries of the right of free movement within the meaning of Directive 2004/38/EC. The Sirene Bureau shall, as far as possible, be able to make available any information that was used to assess whether an alert for refusal of entry or stay was entered for a beneficiary of the right of free movement <*>. In the exceptional case of entry of an alert on a third-country national enjoying the right of free movement, the Sirene Bureau of the issuing Member State shall send an M form to all the other Member States, based on the information provided by the authority that has entered the alert (see Sections 4.6 and 4.7)

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<*> Article 30 of the Directive 2004/38/EC provides that the person refused entry shall be notified in writing thereof and informed in full on grounds on which the decision was taken unless it is contrary to the interests of State security.

 

In addition, Article 26 of the SIS II Regulation provides that, subject to certain specific conditions, alerts relating to third-country nationals who are the subject of a restrictive measure intended to prevent entry into or transit through the territory of Member States, taken in accordance with Article 29 of the Treaty on European Union <*>, shall also be entered. The alerts shall be entered and kept up-to-date by the competent authority of the Member State which holds the Presidency of the Council of the European Union at the time of the adoption of the measure. If that Member State does not have access to SIS II or alerts under Article 24 of the SIS II Regulation the responsibility shall be taken up by the Member State which will holds the subsequent Presidency and has access to SIS II, including access to the alerts under Article 24 of the SIS II Regulation.

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<*> Article 26 of the SIS II Regulation refers to Article 15 of the Treaty on European Union. However, following the entry into force of the Lisbon Treaty this Article 15 became Article 29 in the consolidated version of the Treaty on European Union.

 

Member States shall put in place the necessary procedures for entering, updating and deleting such alerts.

 

4.2. MULTIPLE ALERTS

See general procedure in Section 2.2.

 

4.3. MISUSED IDENTITY

See general procedure in Section 2.11.1.

Problems may occur when a third country national who is subject of an alert for refusal of entry or stay unlawfully uses the identity of a citizen of a Member State in order to seek to gain entry. If such a situation is discovered the competent authorities in the Member States may be made aware of the correct use of the misused identity function within SIS II. Alerts for refusal of entry shall not be issued in the main identity of a citizen of a Member State.

 

4.4. ENTERING AN ALIAS

For general rules see Section 2.11.2.

 

4.5. EXCHANGE OF INFORMATION WHEN ISSUING RESIDENCE PERMITS OR VISAS

The following procedure shall apply:

(a) without prejudice to the special procedure concerning the exchange of information, which takes place in accordance with Article 25 of the Schengen Convention; and without prejudice to Section 4.8, which concerns the exchange of information following a hit on a third-country national who is the beneficiary of the right of free movement (in which case the consultation of the Sirene of the issuing Member State is obligatory); the executing Member State may inform the issuing Member that the alert for refusal of entry has been matched in the course of the procedure for granting a residence permit or a visa. The issuing Member State may then inform other Member States using an M form if appropriate;

(b) if so requested, in accordance with national law, the Sirene Bureaux of the Member States concerned may assist in transmitting the necessary information to the appropriate authorities responsible for granting residence permits and visas.

Special procedures as provided for in Article 25 of the Schengen Convention

Procedure under Article 25(1) of the Schengen Convention

If a Member State that is considering granting a residence permit or visa discovers that the applicant concerned is the subject of an alert for refusal of entry or stay issued by another Member State, it shall consult the issuing Member State via the Sirene Bureaux. The Member State considering granting a residence permit or visa shall use an N form to inform the issuing Member State about the decision to grant the residence permit or visa. If the Member State decides to grant the residence permit or visa, the alert shall be deleted. The person may, nevertheless, be put on the issuing Member State’s national list of alerts for refusal of entry.

Procedure under Article 25(2) of the Schengen Convention

If a Member State that entered an alert for refusal of entry or stay finds out that the person who is the subject of the alert has been granted a residence permit or visa, it shall instigate a consultation procedure with the Member State that granted the residence permit or visa, via the Sirene Bureaux. The Member State which granted the residence permit or visa shall use an O form to inform the issuing Member State about the decision whether or not to withdraw the residence permit or visa. If this Member State decides to maintain the residence permit or visa, the alert shall be deleted. The person can, nevertheless, be put on a Member State’s national list of alerts for refusal of entry.

The consultation via Sirene Bureaux using an O form shall also take place if the Member State that granted the residence permit or visa discovers later that there is an alert for refusal of entry or stay on that person entered in SIS II <*>.

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<*> In the case of alerts for refusal of entry issued for the family members of EU citizens, it is necessary to recall that it is not possible as a matter of routine to consult SIS II prior to issuing a residence card for such a person. Article 10 of the Directive 2004/38/EC lists the necessary conditions for acquiring right of residence for more than three months in a host Member State by family members of Union citizens who are third-country nationals. This list, which is exhaustive, does not allow for routine consultation of the SIS prior to the issuing of residence cards. Article 27(3) of this Directive specifies that Member States may request, should they consider it essential, information from other Member State only regarding any previous police record (that is not all of the SIS II data). Such enquiries shall not be made as a matter of routine.

 

If a third Member State (i.e. neither that which granted the residence permit/visa nor that which issued the alert) discovers that there is an alert on a third-country national who holds a residence permit or visa from one of the Member States, it shall notify both the Member State which granted the permit/visa and the issuing Member State via Sirene Bureaux using an H form.

If the procedure foreseen under Article 25 of the Schengen Convention entails deleting an alert for refusal of entry or stay, the Sirene Bureaux shall, whilst respecting their national law, offer their support if so requested.

Special procedures as provided for in Article 5(4)(a) and (c) of the Schengen Borders Code

 

4.5.1. Procedure in cases falling under Article 5(4)(a)

According to Article 5(4)(a) of the Schengen Borders Code, a third-country national who is subject to an alert for refusal of entry or stay and, at the same time, has a residence permit, long stay visa or a re-entry visa granted by one of the Member States, shall be allowed entry for transit purposes to the Member State which granted the residence permit or re-entry visa, when crossing a border in a third Member State. The entry may be refused if this Member State has issued a national alert for refusal of entry. In both cases, at the request of the competent authority, the Sirene Bureau of the Member State that the person is seeking to enter shall send the Sirene Bureaux of the two Member States in question a message (an H form if the transit was allowed/a G form if the entry was refused) informing them of the contradiction and requesting that they consult each other in order to either delete the alert in SIS II or to withdraw the residence permit/visa. It may also request to be informed of the result of any consultation.

If the third-country national concerned tries to enter the Member State which has entered the alert in SIS II, his/her entry may be refused by this Member State. However, at the request of the competent authority, the Sirene Bureau of that Member State shall consult the Sirene Bureau of the Member State that granted the residence permit or visa in order to allow the competent authority to determine whether there are sufficient reasons for withdrawing the residence permit/visa. The Member State which granted the residence permit or visa shall use an O form to inform the issuing Member State about the decision whether or not to withdraw the residence permit or visa. If this Member State decides to maintain the residence permit or visa, the alert shall be deleted. The person can, nevertheless, be put on a Member State’s national list of alerts for refusal of entry.

If this person tries to enter the Member State that issued the residence permit or visa, he/she shall be allowed entry into the territory but the Sirene Bureau of that Member State, at the request of the competent authority, shall consult the Sirene Bureau of the issuing Member State in order to enable the competent authorities concerned to decide on withdrawal of the residence permit or visa or deletion of the alert. The Member State which granted the residence permit or visa shall use an O form to inform the issuing Member State about the decision whether or not to withdraw the residence permit or visa. If this Member State decides to maintain the validity of the residence permit or visa, the alert shall be deleted. The person can, nevertheless, be put on a Member State’s national list of alerts for refusal of entry.

 

4.5.2. Procedure in cases falling under Article 5(4)(c)

According to Article 5(4)(c) a Member State may derogate from the principle that a person for whom an alert for refusal of entry was issued shall be refused entry on humanitarian grounds, on grounds of national interest or because of international obligations. At the request of the competent authority, the Sirene Bureau of the Member State that allowed entry shall inform the Sirene Bureau of the issuing Member State of this situation using an H form.

 

4.6. COMMON RULES CONCERNING PROCEDURES REFERRED TO IN SECTION 4.5

(a) Only one N form or O form shall be sent per consultation procedure by the Sirene Bureau of the Member State which has granted or intends to grant or retain a residence permit or long-stay visa in order to inform the Member State which has issued or is planning to issue a refusal of entry alert about the final decision on granting, retaining or revoking the residence permit or visa.

(b) The consultation procedure shall be either a procedure for the purposes of Article 25(1) of the Schengen Convention or a procedure for the purposes of Article 25(2) of the Schengen Convention.

(c) When a M, G or H form is sent in the context of a consultation procedure, it may be marked with the keyword «consultation procedure». (M form: field 083; G form: field 086; H form: field 083).

 

4.7. EXCHANGE OF INFORMATION FOLLOWING A HIT AND WHEN REFUSING ENTRY OR EXPELLING FROM THE SCHENGEN AREA

Without prejudice to the special procedures concerning the exchange of information, which takes place in accordance with Article 5(4)(a) and (c) of the Schengen Borders Code; and without prejudice to Section 4.8 which concerns the exchange of information following a hit on a third-country national who is the beneficiary of the right of free movement (in which case the consultation of the issuing Member State via its Sirene Bureau is obligatory), a Member State may ask to be informed of any hits on alerts for refusal of entry or stay that it has entered.

The Sirene Bureaux of Member States that have entered alerts for refusal of entry shall not necessarily be informed of any hits as a matter of course, but may be informed in exceptional circumstances. A G form or an H form, depending on the action taken, may in any case be sent if, for example, supplementary information is required. A G form shall always be sent when there is a hit on a person benefiting from the right of free movement.

Notwithstanding the provisions of the paragraph above, as set out in Section 10 all Sirene Bureaux shall provide statistics on hits on all foreign alerts on their territory.

The following procedure shall apply:

(a) A Member State may ask to be informed of any hits on alerts for refusal of entry or stay that it has issued. Any Member State that wishes to take up this option shall ask the other Member States in writing.

(b) The executing Member State may take the initiative and inform the issuing Member State that the alert has been matched and that the third-country national has not been granted entry or has been expelled from the Schengen territory.

(c) Once an action has been taken on the basis of a hit the Sirene Bureau of the executing Member State shall send a G form to the Sirene Bureau of the issuing Member State; a G form shall also be sent in case of a hit, when more information is needed for the execution of the measure.

(d) Upon the receipt of the information referred to in point (c) from the issuing Member State:

(i) if the action is executed the executing Member State shall notify the Sirene Bureau of the issuing Member State using an M form (not another G form for the same hit),

(ii) if the action is not executed the executing Member State shall notify the Sirene Bureau of the issuing Member State using an H form, or

(iii) if further consultation is required this shall take place using an M form,

(iv) for the final form exchange in a consultation procedure an N or O form shall be used.

(e) If, on its territory, a Member State discovers a third-country national for whom an alert has been issued, the Sirene Bureau of the issuing Member State, upon request, shall forward the information required to return the person concerned. Depending on the needs of the executing Member State this information, given in an M form, shall include the following:

— the type and reason for the decision,

— the authority issuing the decision,

— the date of the decision,

— the date of service (the date on which the decision was served),

— the date of enforcement,

— the date on which the decision expires or the length of validity,

— the information whether the person was convicted and the nature of the penalty.

If a person on whom an alert has been issued is intercepted at the border, the procedures set out in the Schengen Borders Code, and by the issuing Member State, shall be followed.

There may also be an urgent need for supplementary information to be exchanged via the Sirene Bureaux in specific cases in order to identify an individual with certainty.

 

4.8. EXCHANGE OF INFORMATION FOLLOWING A HIT ON A THIRD-COUNTRY NATIONAL WHO IS A BENEFICIARY OF THE RIGHT OF FREE MOVEMENT

Concerning a third-country national who is a beneficiary of the right of free movement within the meaning of Directive 2004/38/EC <*>.

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<*> According to Directive 2004/38/EC, a person benefiting from the right of free movement may only be refused entry or stay on the grounds of public policy or public security when their personal conduct represents a genuine, immediate, and sufficiently serious threat affecting one of the fundamental interests of society and when the other criteria laid down in Article 27(2) of the said Directive are respected. Article 27(2) stipulates: «Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.» Moreover, there are additional limitations for persons enjoying the right of permanent residence who can only be refused entry or stay on serious grounds of public policy or public security as stated in Article 28(2) of Directive 2004/38/EC.

 

If there is a hit on a third-country national who is beneficiary of the right of free movement within the meaning of Directive 2004/38/EC special rules shall apply (but see the introduction to Section 4 on the position of Switzerland). The following procedure shall apply:

(a) at the request of the competent authority, the Sirene Bureau of the executing Member State shall immediately contact the Sirene Bureau of the issuing Member State using a G form in order to obtain the information necessary to decide, without delay, on the action to be taken;

(b) upon receipt of a request for information, the Sirene Bureau of the issuing Member State shall immediately start gathering the required information and send it as soon as possible to the Sirene Bureau of the executing Member State;

(c) the Sirene Bureau of the issuing Member State shall check with the competent authority, if this information is not yet available, whether the alert may be kept in accordance with Directive 2004/38/EC. If the competent authority decides to keep the alert, the Sirene Bureau of the issuing Member State shall inform all the other Sirene Bureaux thereof, by means of an M form;

(d) the executing Member State shall inform, via its Sirene Bureau, the Sirene Bureau of the issuing Member State whether the requested action to be taken was carried out (using an M form) or not (using an H form) <*>.

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<*> In conformity with Directive 2004/38/EC the executing Member State cannot limit the free movement of third country nationals benefiting from the right of free movement on the sole ground that the issuing Member State maintains the alert unless the conditions referred to in footnote 28 are met.

 

4.9. EXCHANGE OF INFORMATION IF, IN THE ABSENCE OF A HIT, A MEMBER STATE DISCOVERS THAT THERE IS AN ALERT FOR REFUSAL OF ENTRY FOR A THIRD-COUNTRY NATIONAL WHO IS A BENEFICIARY OF THE RIGHT OF FREE MOVEMENT

If, in the absence a hit, a Member State discovers that there is an alert for refusal of entry for a third-country national who is a beneficiary of the right of free movement, the Sirene Bureau of this Member State shall, at the request of the competent authority, send an M form to the Sirene Bureau of the issuing Member State informing it about this.

The Sirene Bureau of the issuing Member State shall check with the competent authority, if this information is not yet available, whether the alert may be kept in accordance with Directive 2004/38/EC. If the competent authority decides to keep the alert, the Sirene Bureau of the issuing Member State shall inform all the other Sirene Bureaux thereof, by means of an M form.

 

4.10. DELETION ALERTS FOR REFUSAL OF ENTRY OR STAY

Without prejudice to the special procedures provided for by Article 25 of the Schengen Convention and Article 5(4)(a) and (c) of the Schengen Borders Code the alerts for refusal of entry or stay on third country nationals shall be deleted upon:

(a) the expiry of the alert;

(b) the decision to delete by the competent authority of the issuing Member State;

(c) the expiry of the time limit on refusal of entry where the competent authority of the issuing Member State set an expiry date on its decision; or

(d) the acquisition of citizenship of one of the Member States. If the acquisition of citizenship comes to the attention of a Sirene Bureau of a Member State other than the issuing one, the former shall consult the Sirene Bureau of the issuing Member State and, if needed, send a J form, in accordance with the procedure for rectification and deletion of data found to be legally or factually inaccurate (see Section 2.7).

 

  1. ALERTS ON MISSING PERSONS (ARTICLE 32 OF THE SIS II DECISION)

 

5.1. MULTIPLE ALERTS

See general procedure in Section 2.2.

 

5.2. MISUSED IDENTITY

See general procedure in Section 2.11.1.

 

5.3. ENTERING AN ALIAS

See general procedure in Section 2.11.2.

 

5.4. ADDING A FLAG

Circumstances may arise where a hit occurs on an alert on a missing person and the competent authorities within the executing Member State decide that the action requested may not be taken and/or that no further action will be taken on the alert. This decision may be taken even if the issuing Member State’s competent authorities decide to retain the alert in SIS II. In such circumstances the executing Member State may request a flag after the hit has occurred. With a view to adding a flag, the general procedures as described in Section 2.6 shall be followed.

There is no alternative action to be taken for alerts for missing persons.

 

5.5. PROVISION OF DESCRIPTIVE DETAIL ON MISSING MINORS AND OTHER PERSONS ASSESSED AS BEING AT RISK

Sirene Bureaux shall have ready access to all relevant supplementary information at national level regarding missing person alerts in order for the Sirene Bureaux to be able to play a full role in reaching a successful outcome to cases, facilitating identification of the person and providing supplementary information promptly on matters linked to the case. Relevant supplementary information may cover, in particular, national decisions on the custody of a child or vulnerable person or requests for the use of «Child Alert» mechanisms.

As not all vulnerable missing persons will cross national borders, decisions on the provision of supplementary information (on descriptive details) and its recipients shall be taken on a case-by-case basis, covering the entire range of circumstances. Following a decision at national level on the extent of forwarding required for such supplementary information, the Sirene Bureau of the issuing Member State shall, as far as is appropriate, take one of the following measures:

(a) retain the information in order to be able to forward supplementary information upon the request of another Member State;

(b) forward an M form to the relevant Sirene Bureau if enquiries indicate a likely destination for the missing person;

(c) forward an M form to all the relevant Sirene Bureaux, based on the disappearance circumstances for the purpose of supplying all data concerning the person in a short period of time.

In the case of a high-risk missing person, field 311 of the M form shall begin with the word «URGENT» and an explanation of the reason for the urgency. (When the missing minor is unaccompanied <*>, the explanatory term «Unaccompanied minor» shall be indicated.) This urgency may be reinforced by a telephone call highlighting the importance of the M form and its urgent nature.

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<*> Unaccompanied minors are children, as defined in Article 1 of the Convention on the Rights of the Child of 20 November 1989 (CRC), who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.

 

A common method for entering structured supplementary information in an agreed order on a high-risk missing person shall be used <*>. This shall be entered in field 083 of the M form.

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<*> Data of disappearance:

(a) Place, date and time of the disappearance.

(b) Circumstances of disappearance.

Details of the missing person:

(c) Apparent age.

(d) Height.

(e) Skin colour.

(f) Colour and shape of hair.

(g) Colour of eyes.

(h) Other physical details (i.e. piercings, deformations, amputations, tattoos, marks, scars, etc.).

(i) Psychological particulars: at risk of suicide, mental illness, aggressive behaviour, etc.

(j) Other details: necessary medical treatment, etc.

(k) Clothes worn at the time of the disappearance.

(l) Photograph: available or not.

(m) Ante-mortem form: available or not.

Related information:

(n) Person/s who could accompany him or her (and Schengen ID if available).

(o) Vehicle/s relating to the case (and Schengen ID if available).

(p) If available: number of mobile phone/last «log-in», contact via on-line social networks.

The titles of the different sub-fields themselves are not to be included as part of field 083, but just the reference letter. When details are already available in the fields of an alert the information shall be included in the alert, including fingerprints or photographs.

 

Once information has been received by a Sirene Bureau, it shall, in order to maximise the opportunities for locating the person in a targeted and reasoned fashion, be communicated, as far as is appropriate, to:

(a) relevant border posts;

(b) the competent administrative and police authorities for the location and protection of persons;

(c) the relevant consular authorities of the issuing Member State, after a hit is achieved in SIS II.

 

5.6. THE EXCHANGE OF INFORMATION AFTER A HIT

See general procedure in Section 2.3.

In addition the following rules shall apply:

(a) As far as it is possible, the Sirene Bureaux shall communicate the necessary medical details of the missing person(s) concerned if measures have to be taken for their protection.

The information transmitted shall be kept only as long as it is strictly necessary and shall be used exclusively for the purposes of medical treatment given to the person concerned.

(b) The Sirene Bureau of the executing Member State shall always communicate the whereabouts to the Sirene Bureau of the issuing Member State.

(c) In accordance with Article 33(2) of the SIS II Decision, the communication of the whereabouts of the missing person, who is of age, to the person who reported him/her missing shall be subject to the missing person’s consent <*>. The consent shall be in writing or at least a written record shall be available. In cases where consent is refused, this shall be in writing or recorded officially. However, the competent authorities may communicate the fact that the alert has been deleted following a hit, to the person who reported him or her missing.

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<*> For clarity on consent in matters of on the protection of individuals with regard to the processing of personal data and on the free movement of such data see Article 2(h) Directive 95/46/EC.

 

5.7. DELETION OF ALERTS ON MISSING PERSONS

If there is to be any significant delay in the deletion of the alert by the issuing Member State this delay shall be notified to the Sirene Bureau of the executing Member State in order for a flag to be placed on the alert as described in Section 5.4 of the Sirene Manual.

 

5.7.1. Minors

An alert shall be deleted upon:

(a) the resolution of the case (e.g. the minor is repatriated; the competent authorities in the executing Member State take a decision on the care of the child);

(b) the expiry of the alert; or

(c) the decision by the competent authority of the issuing Member State.

 

5.7.2. Adults where no protective measures are requested

An alert shall be deleted upon:

(a) the execution of the action to be taken (whereabouts ascertained by the executing Member State);

(b) the expiry of the alert; or

(c) the decision by the competent authority of the issuing Member State.

 

5.7.3. Adults, protective measures requested

An alert shall be deleted upon:

(a) carrying out of the action to be taken (person placed under protection);

(b) the expiry of the alert; or

(c) the decision by the competent authority of the issuing Member State.

Subject to national law, where a person is in official protective care an alert may be retained until that person has been repatriated.

 

  1. ALERTS FOR PERSONS SOUGHT FOR A JUDICIAL PROCEDURE

(ARTICLE 34 OF THE SIS II DECISION)

 

6.1. MULTIPLE ALERTS

See general procedure in Section 2.2.

 

6.2. MISUSED IDENTITY

See general procedure in Section 2.11.1.

 

6.3. ENTERING AN ALIAS

See general procedure in Section 2.11.2.

 

6.4. THE EXCHANGE OF INFORMATION AFTER A HIT

See general procedure in Section 2.3.

In addition, the following rules shall apply:

(a) the real place of residence or domicile shall be obtained using all measures allowed by the national law of the Member State where the person was located;

(b) national procedures shall be in place, as appropriate, to ensure that alerts are only kept in SIS II for the time required to meet the purposes for which they were supplied.

The Sirene Bureaux may transmit further information on alerts entered under Article 34 of SIS II Decision, and in so doing may act on behalf of judicial authorities if this information falls within the scope of mutual judicial assistance.

 

6.5. DELETION OF ALERTS ON PERSONS SOUGHT FOR A JUDICIAL PROCEDURE

An alert shall be deleted upon:

(a) the communication of the whereabouts of the person to the competent authority of the issuing Member State. Where the information forwarded cannot be acted upon (e.g. incorrect address or no fixed abode) the Sirene Bureau of the issuing Member State shall inform the Sirene Bureau of the executing Member State in order to resolve the problem;

(b) the expiry of the alert; or

(c) the decision by the competent authority of the issuing Member State.

Where a hit has been achieved in a Member State and the address details were forwarded to the issuing Member State and a subsequent hit in that Member State reveals the same address details the hit shall be recorded in the executing Member State but neither the address details nor a G form shall be re-sent to the issuing Member State. In such cases the executing Member State shall inform the issuing Member State on the repeated hits, and the issuing Member State shall consider the need to maintain the alert.

 

  1. ALERTS FOR DISCREET AND SPECIFIC CHECKS (ARTICLE 36 OF THE SIS II DECISION)

 

7.1. MULTIPLE ALERTS

See general procedure in Section 2.2.

 

7.2. MISUSED IDENTITY

See general procedure in Section 2.11.1.

 

7.3. ENTERING AN ALIAS

See general procedure in Section 2.11.2.

 

7.4. INFORMING OTHER MEMBER STATES WHEN ISSUING ALERTS

When issuing an alert the Sirene Bureau of the issuing Member State shall inform all the other Sirene Bureaux by using an M form in the following cases:

(a) an alert for discreet or specific check is issued with the request that hits are reported without any delay to the issuing Sirene Bureau; in the M form it shall use the text «ARTICLE 36(2) of the SIS II Decision — immediate action» or «ARTICLE 36(3) of the SIS II Decision — immediate action». Justification for the immediate action should also be set out in field 083 of an M form; or

(b) an authority responsible for national security requests the issuance of an alert in accordance with Article 36(3) of the SIS II Decision; in the M form it shall use the text «ARTICLE 36(3) of the SIS II Decision».

If the alert is issued under Article 36(3) of the SIS II Decision the M form shall contain, in field 080, the name of the authority requesting entry of the alert, first in the language of the issuing Member State and then also in English and its contact details in field 081 in a format not requiring translation.

The confidentiality of certain information shall be safeguarded in accordance with national law, including keeping contact between the Sirene Bureaux separate from any contact between the services responsible for national security.

 

7.5. ADDING A FLAG

See general procedure in Section 2.6.

There is no alternative action to be taken for alerts for discreet or specific checks.

In addition, if the authority responsible for national security in the executing Member State decides that the alert requires a flag, it shall contact its national Sirene Bureau and inform it that the required action to be taken cannot be carried out. The Sirene Bureau shall then request a flag by sending an F form to the Sirene Bureau of the issuing Member State. As with other flag requests a general reason shall be given. However, matters of a sensitive nature need not be disclosed (see also Section 7.6(b) below).

 

7.6. THE EXCHANGE OF INFORMATION AFTER A HIT

See general procedure in Section 2.3.

In addition the following rules shall apply:

(a) When a hit occurs on an alert issued pursuant to Article 36(3) of the SIS II Decision, the Sirene Bureau of the executing Member State shall inform the Sirene Bureau of the issuing Member State of the results (discreet check or specific check) via the G form. At the same time the Sirene Bureau of the executing Member State shall inform its own authority responsible for national security.

(b) A specific procedure is required to safeguard the confidentiality of information. Therefore, any contact between the authorities responsible for national security shall be kept separate from the contact between the Sirene Bureaux. Consequently, the detailed reasons for requesting a flag shall be discussed directly between authorities responsible for national security and not through Sirene Bureaux.

(c) When a hit occurs on an alert which requests the hit to be reported immediately a G Form should be sent without delay to the Sirene Bureau of the issuing Member State.

 

7.7. DELETION OF ALERTS ON DISCREET AND SPECIFIC CHECK

An alert shall be deleted upon:

(a) the expiry of the alert; or

(b) a decision to delete by the competent authority of the issuing Member State.

 

7.8. AUTOMATIC NUMBER PLATE RECOGNITION SYSTEMS (ANPR)

See Section 9.

 

  1. ALERTS ON OBJECTS FOR SEIZURE OR USE AS EVIDENCE (ARTICLE 38 OF THE SIS II DECISION)

 

8.1. MULTIPLE ALERTS

See general procedure in Section 2.2.

 

8.2. VEHICLE ALERTS

 

8.2.1. Checking for multiple alerts on a vehicle

The mandatory identity description elements for checking for multiple alerts on a vehicle include:

(a) the registration/number plate, and/or

(b) the vehicle identification number (VIN).

Both numbers may feature in SIS II.

If, when entering a new alert, it is found that the same VIN and/or registration plate number already exist in SIS II, it is assumed that the new alert will result in multiple alerts on the same vehicle. However, this method of verification is effective only where the description elements used are the same. Comparison is therefore not always possible.

The Sirene Bureau shall draw the users’ attention to the problems which may arise where only one of the numbers has been compared, VIN-twins and reuse of licence plates. A positive response does not mean automatically that there is a hit, and a negative response does not mean that there is no alert on the vehicle.

The identity description elements used for establishing whether two vehicle entries are identical are detailed in Section 2.2.3.

The consultation procedures for checking multiple and incompatible alerts to be applied by the Sirene Bureaux for vehicles shall be the same as for persons. For general procedures see Section 2.2.

The Sirene Bureau of the Member State issuing an alert shall maintain a record of any requests to enter a further alert which, after consultation, have been rejected by virtue of the provisions given above, until the alert is deleted.

 

8.2.2. VIN-twins

VIN-twin refers to a vehicle, entered in SIS II, of the same type with the same vehicle identification number (VIN) as an original manufactured vehicle (e.g. a tractor and a motorcycle with the same VIN do not fall into this category). The following specific procedure shall apply to avoid the negative consequences of a repeated seizure of the original manufactured vehicle with the same VIN:

(a) Where the possibility of a VIN-twin is established, the Sirene Bureau shall, as appropriate:

(i) ensure that there is no error in the SIS II alert and the alert information is as complete as possible;

(ii) check the circumstances of the case giving rise to an alert in SIS II;

(iii) find out the history of both vehicles from their production;

(iv) request a thorough check of the seized vehicle, in particular its VIN, to verify whether it is the original manufactured vehicle.

All Sirene Bureaux involved shall closely cooperate in taking such measures.

(b) Where the existence of a VIN-twin is confirmed, the issuing Member State shall consider whether it is necessary to maintain the alert in SIS II. If the Member State decides to maintain the alert in SIS II the issuing Member State shall:

(i) add a vehicle-related remark «Suspicion of clone» <*> in the alert;

———————————

<*> «suspicion of clone» relates to cases where, for example, the registration documents of a vehicle are stolen and used to re-register another vehicle of the same make, model and colour which has also been stolen.

 

(ii) invite the owner of the original manufactured vehicle to, subject to his explicit consent and according to national law, provide the Sirene Bureau of the issuing Member State with all relevant information required to avoid the negative consequences of misidentification.

(iii) Send out an M form via its Sirene Bureau to all other Bureaux including, as appropriate, the marks or features describing the original manufactured vehicle and distinguishing it from the vehicle entered in SIS II. The M form shall indicate words to the effect of «ORIGINAL MANUFACTURED VEHICLE» prominently in field 083.

(c) If, when SIS II is consulted, the vehicle-related remark, «Suspicion of clone» is found, the user conducting the check shall contact the national Sirene Bureau to obtain additional information in order to clarify whether the vehicle being checked is the vehicle sought or the original manufactured vehicle.

(d) If during the check, it is established that the information on the M form is no longer up-to-date the Sirene Bureau of the executing Member State shall contact the Sirene Bureau of the issuing Member State in order to verify the current legal ownership of the vehicle. The latter Sirene Bureau shall send a new M form accordingly, indicating words to the effect of «ORIGINAL MANUFACTURED VEHICLE» prominently in field 083.

 

8.3. THE EXCHANGE OF INFORMATION AFTER A HIT

The Sirene Bureaux may transmit further information on alerts entered under Article 38 of the SIS II Decision and in so doing may act on behalf of judicial authorities, if this information falls within the scope of mutual judicial assistance in accordance with national law.

The Sirene Bureaux shall send supplementary information as quickly as possible via a P form, if requested in field 089 of a G form, when a hit is achieved on an alert for seizure or use as evidence issued on a vehicle, aircraft, boat, industrial equipment or container pursuant to Article 38 of the SIS II Decision.

Given that the request is urgent and that it will not therefore be possible to collate all the information immediately, it shall not be necessary to fill all the fields of the P form. However, efforts shall be made to collate the information relating to the main headings: 041, 042, 043, 162, 164, 165, 166, 167 and 169.

Where a hit is achieved on an identifiable component of an object the Sirene Bureau of the executing Member State shall inform the Sirene Bureau of the issuing Member State of the circumstances of the hit using a G form, explaining in field 090 (Additional information) that the seizure is not of the complete object but of a component or components. Where several components are found at the same time, as they relate to one alert, only one G form will be sent. Any subsequent hits on the alert shall be notified to the Sirene Bureau of the issuing Member State by means of a G form. The alert shall not be deleted unless the conditions set out in Section 8.4 are met.

 

8.4. DELETION OF ALERTS ON OBJECTS FOR SEIZURE OR USE AS EVIDENCE IN CRIMINAL PROCEEDINGS

An alert shall be deleted upon:

(a) the seizure of the object or equivalent measure once the necessary follow-up exchange of supplementary information has taken place between Sirene Bureaux or the object becomes subject of another judicial or administrative procedure (e.g. judicial procedure on good faith purchase, disputed ownership or judicial cooperation on evidence);

(b) the expiry of the alert; or

(c) the decision to delete by the competent authority of the issuing Member State.

 

  1. AUTOMATIC NUMBER PLATE RECOGNITION SYSTEMS (ANPR)

 

These systems are relevant for alerts under Articles 36 and 38 of the SIS II Decision. Due to the widespread use of ANPR for law enforcement purposes there is the technical capability to achieve numerous hits on a vehicle or number plate over a short period of time.

Given that some ANPR sites are manned there is the possibility of a vehicle being detected and the requested action undertaken. In this case, before any action is undertaken, the users of the ANPR system shall verify whether the hit achieved through ANPR relates to an alert under Article 36 or 38 of the SIS II Decision.

However, many fixed ANPR sites are not constantly manned. Accordingly, although the technology will register the passage of the vehicle and a hit will be achieved, the requested action may not be undertaken.

For both Article 36 and Article 38 alerts where the requested action could not be taken the following general procedure shall apply:

One H form shall be sent for the first hit. If more information is required on the movement of the vehicle it is for the Sirene Bureau of the issuing Member State to contact the Sirene Bureau of the executing Member State bilaterally to discuss information needs.

For alerts under Article 36 the following procedure shall apply:

(a) the Sirene Bureau of the Member State achieving the hit shall inform the issuing Sirene Bureau of the circumstances of the hit using one G form, using the word «ANPR» in field 086. If more information is required on the movement of the vehicle, the Sirene Bureau of the issuing Member State shall contact the Sirene Bureau of the executing Member State;

(b) the Sirene Bureau of the Member State achieving a hit on an alert for a specific check whereby the requested action could not be taken, shall inform the issuing Sirene bureau of the circumstances of the hit using an H form, with the word «ANPR» in field 083, followed by words to the effect of: «This hit has been achieved by use of ANPR. Please inform us if your country wishes to be informed of further hits achieved through ANPR for this vehicle or number plate where the requested action could not be undertaken»;

(c) the issuing Member State shall decide whether the alert has achieved its purpose, shall be deleted or not and whether bilateral discussions should take place on information needs.

For alerts under Article 38 the following procedure shall apply:

(a) in circumstances where a hit occurs and the requested action has been taken the Sirene Bureau of the Member State achieving the hit shall inform the issuing Sirene Bureau of the circumstances of the hit using one G form;

(b) in circumstances where a hit occurs and the requested action has not been taken the Sirene Bureau of the Member State achieving the hit shall inform the Sirene Bureau of the issuing Member State of the circumstances of the hit using an H form and the word «ANPR» in field 083 followed by words to the effect of; «This hit has been achieved by the use of ANPR. Please inform us if your country wishes to be informed of further hits achieved through ANPR for this vehicle or number plate where the requested action could not be taken.»;

(c) when receiving such an H form, the Sirene Bureau of the issuing Member State shall consult the competent authorities, which shall have the responsibility of deciding on the necessity of receiving further H forms or information passed bilaterally from the Sirene Bureau of the executing Member State.

 

  1. STATISTICS

 

Once a year the Sirene Bureaux shall provide statistics, which have to be sent to the Agency and the Commission. The statistics shall also be sent, upon request, to the European Data Protection Supervisor and the competent national data protection authorities. The statistics shall comprise the number of forms of each type sent to each of the Member States. In particular, the statistics shall show the number of hits and flags. A distinction shall be made between hits found on alerts issued by another Member State and hits found by a Member State on alerts it issued.

Appendix 5 sets out the procedures and formats for the provision of statistics under this section.

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