Draft third additional protocol to the European Convention on Mutual Assistance in Criminal Matters
- Author(s):
- Parliamentary Assembly
- Origin
- Text adopted by the Standing Committee,
acting on behalf of the Assembly, on 23 May 2025 (see Doc. 16173, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Vladimir Vardanyan).
1. The Parliamentary Assembly welcomes
the finalisation of the draft third additional protocol to the European
Convention on Mutual Assistance in Criminal Matters (ETS No. 30)
by the Committee of Experts on the Operation of European Conventions
on Co-operation in Criminal Matters and the European Committee on Crime
Problems.
2. Since the convention was first established in 1959, criminal
activities have become increasingly transnational. International,
and especially cross-border, co-operation is essential to combat
transnational crime – and this co-operation should be as rapid,
effective and efficient as possible. At the same time, co-operation
and mutual assistance in criminal matters should respect human rights
and the rule of law: for Council of Europe member States this includes
the standards of protection under the European Convention on Human
Rights (ETS No. 5), in particular the right to a fair trial and
the right to respect for private life.
3. The European Convention on Mutual Assistance in Criminal Matters
has been updated with protocols approximately every twenty years,
with the first additional protocol (ETS No. 99) opened for signature
in 1978 and the second additional protocol (ETS No. 182) in 2001,
to meet the relevant needs of co-operation in criminal matters.
The draft third additional protocol (“the draft third protocol”)
follows this pattern: it provides for a welcome modernisation of
the convention by reflecting the use of modern technologies as well
as by broadening the range of means via which mutual assistance
can be requested and facilitating the execution of mutual assistance
requests.
4. The Assembly welcomes that the draft third protocol takes
account of modern technological developments to facilitate mutual
assistance requests and make them more cost-effective, notably by prioritising
secure electronic communication in request procedures, by enabling
hearings by video conference (with relevant safeguards) and by establishing
procedures to facilitate the use of recording devices when the subject
of an investigation enters the territory of another party, as well
as a procedure through which parties can make requests for the interception
of telecommunications.
5. As regards hearings by video conference (Article 2), the Assembly
notes that parties may, at their discretion, apply this possibility
to hearings involving the accused person or the suspect. In this
case, the manner in which the video conference is carried out shall
be subject to agreement between the parties concerned, in accordance
with national law and relevant international instruments (Article 2,
paragraph 8). The Assembly understands that this should be done
in accordance with the right to a fair trial enshrined in Article 6 of
the European Convention on Human Rights and/or other similar provisions
under international human rights law. This implies that the accused
person or suspect should be guaranteed the right to follow the proceedings without
technical impediments and the right to legal assistance, including
effective and confidential communication with a lawyer. For the
sake of clarity, the Assembly proposes that these safeguards be
explicitly referred to in the draft explanatory report to the protocol
in relation to Article 2, paragraph 8.
6. A significant part of the draft third protocol (Articles 3
and 4) is designed to facilitate international co-operation concerning
State surveillance. The draft text sets out an improved legal basis
for such co-operation, with safeguards such as the obligation for
the requesting State to indicate the reason why the purpose sought with
the surveillance measure cannot be adequately achieved by other
means of investigation, thereby facilitating a proportionality test,
and the possibility of refusing a request on the ground that such
a measure would not have been authorised under the law of the requested
party. The Assembly welcomes these safeguards and notes that they
are also meant to cover the refusal of a request on the rule of
law or human rights grounds, including on the basis of the European
Convention on Human Rights.
7. While supporting the introduction of a legal basis for international
co-operation, equipped with sound safeguards, the Assembly recalls
that the European Court of Human Rights has identified significant shortcomings
in the regulation, oversight and functioning of State surveillance
in several member States, in violation of the right to respect for
private life guaranteed by Article 8 of the European Convention
on Human Rights. Many of these judgments are still pending implementation,
which indicates that the problems identified by the European Court
of Human Rights remain.
8. Along the same lines, in its
Resolution 2513 (2023) “Pegasus
and similar spyware and secret State surveillance”, the Assembly
highlighted the highly intrusive nature of modern spyware used for
targeted surveillance, expressing deep concern that spyware had
been used illegally or for illegitimate purposes by several member
States. The Assembly concluded that recourse to such spyware should
be limited to exceptional situations, as a measure of last resort,
and always under court supervision.
9. Likewise, in its
Recommendation 2258 (2023),
the Assembly called on the Committee of Ministers to adopt a recommendation
to member States of the Council of Europe on secret surveillance
and human rights, particularly in the light of the threats posed
by new surveillance technologies and spyware; and to examine the feasibility
of a Council of Europe convention on the acquisition, use, sale
and export of spyware. The Committee of Ministers agreed that a
non-binding instrument on secret surveillance and human rights would have
a genuine added value and invited the Steering Committee for Human
Rights to bear this in mind in its work. In December 2024, the European
Commission for Democracy through Law (“Venice Commission”) adopted
a report entitled “A rule of law and human rights compliant regulation
of spyware” at the request of the Assembly. The report concluded
that spyware is “an unprecedently intrusive surveillance tool”,
which should only be developed and used under relevant legal frameworks
meeting strict requirements. It transpires from this study that
relatively few States have developed legislation that specifically
regulates the use of spyware. It is also doubtful whether member
States have all the necessary minimum safeguards in place.
10. With these considerations in mind, the Assembly recommends
that the draft third protocol be adopted by the Committee of Ministers
and opened for signature and ratification. At the same time, however,
the Assembly makes a strong call for urgent steps to be taken to
ensure that State surveillance is carried out following procedures
which are compliant with international standards, failing which
greater international co-operation is bound to be flawed. In particular:
10.1 Council of Europe member States
should take the necessary steps to implement judgments of the European
Court of Human Rights concerning State surveillance by adopting
the relevant general measures required;
10.2 Council of Europe member States should ensure that their
legal framework for the development and use of spyware includes
the minimum safeguards as set out by the Venice Commission;
10.3 the Committee of Ministers should take further steps towards
the adoption of a recommendation on secret surveillance and human
rights and a legally binding instrument on the acquisition, use,
sale and export of spyware, in light of Assembly
Recommendation 2258 (2023);
10.4 non-member States of the Council of Europe which are parties
to the convention and wish to become parties to the third protocol
should also ensure that their legislative framework on State surveillance
and its implementation are compliant with international human rights
standards.
