El control de datos de circulación de personas en la UE como mecanismo de salvaguarda de la seguridad nacional // Controlling data on EU cross-border movements as a mechanism to safeguard national security

摘要

Abstract:EU Coordinated border management and effective functioning of data processing systems related to the movement of persons may serve as an early warning mechanism against the risk of terrorist attacks. It can strengthen the collective capacity of States to detect, prevent and combat terrorism by facilitating the timely exchange of information, thereby enabling crucial decisions to be adopted in a responsible manner.This paper analyzes the concrete border data management tools that can be useful in the fight against terrorism. The first step in intelligence lies in obtaining information, which will then be analyzed and treated to turn that information into useful knowledge. As we will have an opportunity to verify, numerous border databases were created to control the entry of immigrants into European borders, but the information offered by these systems can also serve to fight against this challenge that threatens us, that of jihadist terrorism.Nevertheless, we emphasize that terrorism and immigration are different phenomena. The truth is that the new wave of Jihadist attacks took place along the largest migratory crisis that Europe faced due to different humanitarian crises and to the war in Syria and other conflicts. But they represent different realities. Jihadist terrorism and immigration have little or nothing in common. In spite of this, many wish to link both with a view to justify certain anti-immigration policies as necessary actions for coping with Jihadist terrorism. This has been done based on a simple narrative: holding back immigration prevents the entry of potential terrorists in Europe.This paper shows that the risk that the fight against terrorism will be used as a basis to reinforce people controls at the borders, while the true objective of these measures is to curb migratory flows. At the same time, it underlines the need for clear guidelines and practices to be followed when implementing such controls. It also vindicates the need for States to observe their obligations laid down by international law, as recalled by the European Court of Human Rights and the EU Court of the Justice. In fact, in many cases, these jurisdictions highlighted the undoubted relevance of the statutory reserve principle, the principle of necessity or the principle of proportionality, as legal basis for the adoption of measures that include personal data processing.