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Draft second additional protocol to the European Convention on Mutual Assistance in Criminal Matters

Opinion 231 (2001)

Parliamentary Assembly
Assembly debate on 29 June 2001 (24th Sitting) (see Doc. 9118, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Dreyfus-Schmidt). Text adopted by the Assembly on 29 June 2001 (24th Sitting).
1. The Assembly welcomes the intention of the Committee of Ministers to strengthen mutual assistance between states in criminal matters.
2. It recalls its Recommendation 1507 (2001) – Europe’s fight against economic and transnational organised crime: progress or retreat? – in which it called upon the Committee of Ministers to speed up the work on updating and supplementing the 1959 European Convention on Mutual Assistance in Criminal Matters (ETS No. 30) through a second additional protocol.
3. It notes that Chapter I of the draft second additional protocol to the European Convention on Mutual Assistance in Criminal Matters and its six articles make a number of clarifying changes to the convention and the first protocol (ETS No. 99), most of which are appropriate and only two of which pose a problem.
4. Firstly, Article 1 of the draft proposes a new wording for Article 1 of the convention; the new version of the third paragraph widens the scope of the convention to include administrative decisions which may “give rise to proceedings before a court having jurisdiction in particular in criminal matters”.
5. This very unclear proposal must be rejected: if an appeal against an administrative decision is lodged with a criminal court, the convention will be applicable by virtue of their confidence in the judicial authorities.
6. Mutual assistance between administrative authorities would require a separate convention. Article 1, paragraph 3 should therefore be deleted and consequently also Article 26 (“Parties may at any time (…) define what authorities they will deem administrative authorities for the purposes of Article 1, paragraph 3, of the Convention”) as well as the words “administrative or”, which appear twice in Article 4, paragraph 3.
7. Secondly, Article 5 of the draft contains a new wording for Article 20 of the convention: in addition to the convention’s two exceptions to the principle of not charging for mutual assistance (expenses incurred by the attendance of experts and expenses incurred by the transfer of a person in custody), there is now to be a third exception – “costs of a substantial or extraordinary nature”. This wording is, to say the least, doubly vague: what exactly constitutes “substantial” costs and what might “costs of an extraordinary nature” comprise?
8. The two concepts need clarifying, even though the Council of Europe’s European Committee on Crime Problems is already responsible, under Article 28 of the draft second additional protocol, for monitoring “implementation of the convention and its protocols” and for doing “whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of their application”. This Article 28 should, moreover, be incorporated into the convention itself.
9. Chapter II of the draft contains twenty-one new articles, several of which allow the use, in mutual assistance between states in criminal matters, of modern procedures such as hearings by video conference (Article 9) or telephone conference (Article 10).
10. The other articles are concerned with states’ rights and obligations: postponed execution of requests (“the requested Party may postpone action on a request if such action would prejudice investigations, prosecutions or related proceedings”) (Article 7); spontaneous forwarding of information (Article 11); restitution (Article 12); temporary transfer of detained persons (Article 13); personal appearance of transferred sentenced persons (Article 14); language of procedural documents and judicial decisions to be served (Article 15); service by post (Article 16); cross-border observations (Article 17); controlled delivery (Article 18); covert investigations (Article 19); joint investigation teams (Article 20); criminal liability regarding officials and civil liability regarding officials (Articles 21 and 22); provisional measures (Article 23); confidentiality (Article 24) and data protection (Article 25).
11. Chapter III and its six articles deal with the signature of the second protocol, its entry into force, accessions, territorial application, reservations, the possibility of denouncing the protocol and notifications to be made by the Secretary General of the Council of Europe.
12. The draft second protocol is extremely flexible, allowing each party to decide not to accede to certain articles (provided it does not ask other parties to apply them), to partially withdraw reservations at any time and to denounce the protocol. For the time being, suffice it to point out that the flexibility provided for in the draft second protocol is exactly the same as that to be found in the convention itself and in its first protocol.
13. The Assembly would like to see all forms of mutual assistance become so effective as to be requirable of all states, in particular Council of Europe member states. It is urgent to achieve an early adoption, in accordance with this opinion, by the Committee of Ministers of the text of the second additional protocol, so that the protocol can be open for signature as soon as possible.