Estilos de liderazgo

There has been a steady transition from the use of traditional criminal databases towards the implementation of biometric criminal databases. Biometric criminal databases were the essential foundation for international linkages and TBIF. During this transition stage, it is possible to track three key elements in the actual policy development: the biometric information collected; the reclassification of crimes; and, the actual exchanges and linkages between databases.

5.3.1. Information Collected. The first element in this transition is the information collected in criminal databases: from nominal or textual characteristics to biometric characteristics. The purposes for which biometric information is collected is also relevant to this discussion.

Nowadays, criminal databases not only collect names, dates of birth, sex, physical descriptions and categories of offences, but also include some biometric characteristics like DNA, face images, fingerprints, iris patterns or voice.

Each country’s national criminal legislation sets the criteria for collecting, accessing, storing and deleting information and database management. As criteria are set at the national level, it is possible to find asymmetries among criminal databases reflected at the international level. Information collection criteria are not determined by scientific or technological standards, but by these national legal prescriptions. At this point, countries are collecting biometric information: a) related only to crimes; b) related to crimes and other biometric data; or c) related to crimes, biometric data and more information as a result of the linkage among biometric criminal databases. A distinct and common characteristic related to the varied information collected, during this transition phase is that different countries are collecting biometric data but then start to use it for other purposes33.

33

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Accordingly, the development of national criminal database frameworks, as well as and international linkages, should be negotiated with the highest degree of transparency and the involvement of data protection authorities34.

5.3.2. Reclassification of Crimes. The second element in this transition stage is the reclassification of crimes. Because of the need to combat terrorism, cross-border crimes and illegal immigration, countries require international co-operation. This requires a consistent classification of crimes at a national level.

In Europe, for example, the Schengen Information System II35 is a biometric list of wanted and unwanted persons designed to prevent cross-border crimes and illegal immigration. The Prüm Convention36 authorised the expansion of the classifications of information collected to create a more extensive database of biometric characteristics compiled to tackle not only cross-border crimes, but also terrorism and illegal immigration.

 Terrorism

After terrorist attacks in 2001, countries developed a “unique global instrument to enhance national, regional and international efforts to counter terrorism”37

. International cooperation is continuing and expanding at an international level38. At a national level, countries introduced amendments to their criminal laws and prosecution systems to include terrorism as a transnational crime and terrorism- related offences. For example in New Zealand, terrorism-related offences include terrorist bombing, financing of terrorism, recruiting members of terrorist groups, participating in terrorist groups, hijacking, other crimes relating to aircraft, crime

34

For further details, see Chapter 8. Conclusions

35

For further details, see Appendix F. Schengen Information System

36

For further details, see Appendix G. Prüm Convention

37

United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 116th sess, 117th plen mtg, Agenda Item 46, UN Doc A/Res60/288 (20 September 2006, adopted 8 September 2006).

38

There are 13 international conventions http://www.un.org/terrorism/instruments.shtml (21/12/2012) These instruments were developed under the auspices of the United Nations, its specialized agencies and the International Atomic Energy Agency (IAEA) and are open to the participation of all Member States.

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relating to international airports, and wrecking39. In Mexico, the definition of terrorism, as a crime, embodies an historical aspect related to treason. The Mexican Federal Criminal Code classifies the crimes of national terrorism and international terrorism40. Terrorism and counter-terrorism have been widely debated, but a legal classification problem arises when discussion turns to ‘terrorist activity’. This type of activity is included in criminal databases because it encompasses ‘crime prevention’ justifications41. But the term is not specific and precise and the current definition of ‘terrorist activity’42

depends on individual assessment. Habermas might explain this as “the intent to legitimate political decisions in a less rational way”43

. Such assessments affect civil liberties.

 Cross-border crimes

Cross-border crimes are classified as ‘transnational organised crimes’44 and are treated as domestic criminal offences. These offences may directly or indirectly threaten individuals but also social, cultural, economic and political regimes. Activities considered cross border crimes are: drug trafficking, people trafficking, trafficking in firearms, smuggling of migrants; money laundering45 and terrorism,

39

Criminal Investigations (Bodily Samples) Amendment Act 2003 (New Zealand)

40

Therefore, since 1917, all crimes related to treason to homeland like terrorism, sabotage, conspiracy, rebellion, mutiny, sedition or insurrection are considered as serious offence by the Código Penal Federal, DOF 14/08/1931 [Federal Criminal Code, last amendment 14/06/2012] (Mexico) http://www.diputados.gob.mx/LeyesBiblio/pdf/9.pdf (21/12/2012)

41

Criminal Code Act 1995 (Cth); the Ley Orgánica 10/1995, de 23 de noviembre, del Código Penal, BOE-A-1995-25444 [Organic Law 10/1995 Criminal Code] (Spain) https://www.boe.es/buscar/doc.php?id=BOE-A-1995-25444 (21/12/2012); Criminal Investigations (Bodily Samples) Amendment Act 2003 (New Zealand) and Código Penal Federal, DOF 14/08/1931 [Federal Criminal Code, last amendment 14/06/2012] (Mexico) http://www.diputados.gob.mx/LeyesBiblio/pdf/9.pdf (21/12/2012)

42

Reviewing the Australian, Mexican, New Zealand and Spanish criminal legislation, it is possible to define terrorist activity as situations in which “groups or individuals operate entirely inside a country, attempting to influence the government or population to effect political or social change”.

43 _{Habermas, Jürgen (1980), “Sfera pubblica (Una voce di enciclopedia)”, above}

n 4.

44

There is no single accepted definition of transnational organised crime. Mueller, Gerhard O. W. “Transnational Crime: Definitions and Concepts,” (1998) 4 Transnational Organized Crime 13-21; Williams, Paul D. Security Studies. An Introduction, (Routledge, 2008); Collins, Alan, Contemporary Security Studies, (Oxford University Press, 2007); Barkawi, Tarak and Laffey, Mark (eds.) “The post-

colonial moment in security studies” (2001) 32(2) Review of International Studies 329-352.

45

United Nations Convention against Transnational Organized Crime, opened for signature on 15 November 2000 (entered into force on 29 September 2003).

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among others transnational crimes46. These are the typical offences that trigger inclusion in international criminal databases.

However, as noted, there is no consistent international classification. Each country decides which criminal offences should be included in their criminal databases and what information will be exchangeable. Policy making is undertaken at a national, rather than an international level.

 Illegal immigrants

Migration, including illegal immigration, is a complex issue47 that has an impact on the economy and social life of any countries. Most countries are designing their migration policies based on economic and social benefit48 with little open and public dialogue consensus through real deliberative democracy49. Migration discourse centres on two areas: the first relates to combating people smuggling50, and the second to border security in terms of avoiding the threat of terrorists entering a country. Many countries place illegal immigration in the same policy debates about terrorism and cross-border crimes, in this transition stage of policy making. In this context, if countries continue to strengthen their migration policies, there is a possibility that some countries could categorize illegal immigration as criminal activity.

46

Intellectual property crime, cybercrime, maritime piracy, stolen motor vehicles, environmental crime, counterfeit medical products, firearms trafficking, stolen works of art and stolen travel documents.

47

For further details, see Chapter 4. Biometric Systems in the Context of Transborder Immigration Flow

48 _{Like Weber’s “bureaucratic domination” concept in which bureaucracy is impersonal and “depends}

upon regular income, and hence at least a portion on a money economy and money taxes”. Gerth, H. H. And Wright Mills, L. (ed.) From Max Webber, Essays in Sociology, (Rutledge, 2009).

49

Habermas, Jürgen, “Sfera pubblica (Una voce di enciclopedia)”, above n 4; Jasanoff, Sheila,

Designs on Nature, Science and Democracy in Europe and the United States, above n 4.

50 _{For Interpol “people smuggling simply implies the procurement, for financial or material gain, of the}

illegal entry into a state of which the individual is neither a citizen nor a permanent resident. Trafficking is distinct from smuggling insofar as the traffic of human beings involves the exploitation of the migrant, often for purposes of forced labour and prostitution” http://www.interpol.int/Crime- areas/Trafficking-in-human-beings/Trafficking-in-human-beings (21/12/2012).

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5.3.3. Exchanging and Linking Databases to enable Transborder Biometric Information Flow (TBIF). The third element of this transition is the way in which TBIF is carried out, the exchange of information by specific request and the actual linkage of databases by systematic sharing data between countries for international cooperation.

In both cases of TBIF, the exchanging or linking of national criminal information with any international agency or country means not only sharing information, but also its processing personal information. In the last two decades, TBIF has been possible, mainly in Europe51 through Interpol52 with background checks, for example based on textual information searches by name, aliases, date of birth and sex. Nowadays, TBIF is a reality everywhere, and searches can be performed, not only on textual information but on DNA, fingerprints, iris, face images and other biometric characteristics.

Concerning international cooperation and assistance, there are challenges in consistency of criteria and creating open and representative procedures in specific institutional contexts. There are different forms of international cooperation and assistance: bilateral or multilateral treaties, and/or cooperation with international or regional organizations or agencies that facilitate the TBIF by exchanging specific information or linking different databases. In the global era, the TBIF should to be possible via the Internet, across the world using biometric systems without any problems posed by the range of the Roman alphabet, the Cyrillic alphabet or Chinese characters. Biometric characteristics should be insensitive to text characters or language translation.

51

At that time, systems included the Schengen Information System, SIRENE, EUROPOL, EURODAC, Customs Information System (CIS) and the Visa Information System (VIS).

52

Since 1987, Interpol has operated its own Criminal Intelligence Database or Criminal Information System (ICIS).

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