House of Lords - European Communities

Select Committee on European Communities Fourteenth Report

APPENDIX 3 (Articles 11 - 20)

Article 11

SENDING AND SERVICE OF PROCEDURAL DOCUMENTS

1. Each Member State shall send procedural documents intended for persons who are in the territory of another Member State to them directly by post. ( . . . )

2. Procedural documents may be sent via the competent authorities of the requested Member State if:

- the requesting Member State requires proof other than proof that can be obtained by post of the service of the document on the addressee, or

- a previous recourse to despatch by post has proved ineffective, or

- if the requesting Member State has justified reasons for considering that dispatch by post will be ineffective or is inappropriate.

3. Where there is reason to believe that the addressee does not understand the language in which the document is drafted, the document - or at least the important passages thereof - must be translated into (one of) the language(s) of the Member State in the territory of which the addressee is staying. If the authority by which the procedural document was issued knows that the addressee understands only some other language, the document - or at least the important passages thereof - must be translated into that other language.

4. All procedural documents shall be accompanied by a report stating that the addressee may obtain information from the authority by which the document was issued or from other authorities in that Member State regarding its rights and obligations concerning the document. Paragraph 3 shall also apply to that report.

5. Articles 8, 9 and 12 of the European Mutual Assistance Convention and Articles 32 and 35 of the Benelux Treaty shall apply as regards documents sent by post.

Article 12

HEARING BY VIDEO CONFERENCE AND BY TELEPHONE

1. If it is desirable for a person in one Member State to be heard as a witness or expert by the judicial authorities of another Member State but it is not desirable or possible for the person concerned to appear in that Member State in person, the hearing may take place by video conference, as provided for in paragraphs 2 to 9, or by telephone, as provided for in paragraph 10.

2. ( . . . )

3. The requested Member State shall agree to the hearing by video conference provided that the use of the video conference is not in conflict with its own laws and on condition that it has the technical means to permit the hearing. If the requested Member State has no access to the technical means for video conferencing, such means may be made available to it by the requesting Member State by agreement between them.

4. Applications for a hearing by video conference shall contain, in addition to the data referred to in Article 14 of the European Mutual Assistance Convention and Article 37 of the Benelux Treaty, the name of the authority and of the persons who will be conducting the hearing.

5. The judicial authority of the requested Member State shall summon the person concerned to appear in accordance with the forms prescribed by its legislation.

6. With reference to hearing by video conference, the following rules shall apply;

(a) a judicial authority of the requested Member State shall be present during the hearing and shall also be responsible for ensuring both identification of the person to be heard and respect for the fundamental principles of the law of the requested Member State;

(b) measures extending to the protection of the person to be heard may be agreed between the competent authorities of the requesting and the requested Member States. The measures may include the Implementation of the requesting Member State's legislation on protection of the persons to be heard;

(c) the hearing shall be conducted directly by the judicial authority of the requesting Member State in accordance with its own laws;

(d) at the request of the requesting Member State the requested Member State shall ensure that the person to be heard is assisted by an interpreter, if necessary;

(e) ( . . . )

(f) the person to be heard may claim the right not to testify which would accrue to him under the legislation of either the requested or the requesting Member State;

(g) ( . . . ).

7. On conclusion of the hearing, the judicial authority of the requested Member State shall draw up minutes indicating the date and place of the hearing, the identity of the person heard, the identities and functions of all other persons present: at the hearing, any oaths taken and the technical conditions under which the hearing took place. The document shall be forwarded by the competent authority of the requested Member State to the competent authority of the requesting Member State.

8. Expenditure arising from the video conference shall be charged to the requesting Member State unless the Member States concerned decide otherwise by mutual agreement. In special cases or in the event of urgency, the requesting Member State may ask the requested Member State to advance the amount necessary.

9. Each Member State shall take the necessary steps to ensure that intentional false statements made in their territory by persons whether placed under oath or pledge or not in the context of this Article's application are punishable in the same way as similar false statements made in the context of a national judicial procedure.

10. The judicial authorities of a Member State wishing to hear by telephone a person who is in the territory of another Member State may take that evidence subject to any statements made by the Member States in accordance with the following subparagraph.

Each Member State may declare when giving the notification provided for in Article 18(2) that it does not intend to accept that a Member State may have recourse on its territory to a hearing by telephone. It may also declare that it accepts such recourse only under certain conditions, which may inter alia include the need for the consent of the person to be heard and observance of all or some of the rules set out in paragraph 6.

Article 13

TEMPORARY TRANSFER OF PERSONS HELD IN CUSTODY FOR PURPOSES OF INVESTIGATION

1. Where there is agreement between the competent authorities of the Member States concerned, a Member State which has requested an investigation for which the presence of a person held in custody on its own territory is required may temporarily transfer that person to the territory of the Member State in which the investigation is to take place.

2. The agreement shall cover the arrangements for the temporary transfer of the person and the date by which he must be returned to the territory of the requesting Member State.

3. Where consent to the transfer is required from the person concerned, a statement of consent or a copy thereof shall be provided promptly to the requested State.

4. The period of custody in the territory of the requested Member State shall be deducted from the period of detention which the person concerned is or will be obliged to undergo in the territory of the requesting Member State.

5. Articles 11(2) and (3), 12 and 20 of the European Mutual Assistance Convention and Articles 33, 35 and 46 of the Benelux Treaty shall apply.

6. Each Member State may declare when giving the notification provided for in Article 18(2) that, before reaching an agreement under paragraph 1, the consent referred to in paragraph 3 will be required or will be required under certain conditions indicated in the declaration.

Article 14

SPONTANEOUS EXCHANGE OF INFORMATION

1. The competent authorities of the Member States may, within the limits of their national law and without a request to that effect, exchange information relating to criminal offences or infringements of regulations, as referred to in Article 2(1), the punishment or handling of which falls within the competence of the receiving authority at the time the information is provided.

2. The providing authority may, pursuant to its national law, impose conditions on the use of such informatin by the receiving authority.

3. The receiving authority shall be bound by those conditions.

Article 15

REQUESTS FOR MUTUAL ASSISTANCE

1. Requests for mutual assistance and the communications referred to in Article 14 shall be made directly between judicial authorities with territorial competence for their service and execution, and returned through the same channels unless otherwise specified in this Article.

Any charge brought by a Member State for proceedings before the courts of another Member State within the meaning of Article 21 of the European Mutual Assistance Convention and Article 42 of the Benelux Treaty may be the subject of direct communications between the competent judicial authorities.

2. Paragraph 1 shall not prejudice the possibility of requests being sent or returned in specific cases:

- between a central authority of a Member State and a central authority of another Member State; or

- between a judicial authority of one Member State and a central authority of another Member State.

3. A Member State may declare, in a statement to be sent to the depositary of this Convention, that its judicial authorities do not, or do not in general, have authority to execute direct requests and that requests and information must therefore be sent via the central authority or authorities of the Member State to the extent indicated in the statement. The Member State may at any time amend its statement by means of a communication to be made to the depositary and any such amendment shall be for the purpose of giving greater effect to paragraph 1.

4. Any request as referred to in paragraph 1 may, for the sake of speed, be made via the International Criminal Police Organisation (Interpol) or any other body competent under provisions introduced pursuant to the Treaty on European Union.

5. Subject to statements made in accordance with paragraph 3, paragraph 1 shall apply to requests for controlled deliveries, as referred to in Article 10. Where the competent authority is a judicial authority in one Member State and a police or customs authority in the other, requests shall be made and answered directly between those authorities.

6. ( . . . )

7. The following requests or communications shall be made through the central authorities of the Member States:

(a) requests for temporary transfer or transit of persons held in custody as referred to in Article 13 of this Convention, in Article 11 of the European Mutual Assistance Convention and in Article 43 of the Benelux Treaty;

(b) notices of judgments as referred to in Article 22 of the European Mutual Assistance Convention and Article 43 of the Benelux Treaty. However, requests for copies of convictions and measures as referred to in Article 4 of the Additional Protocol to the European Mutual Assistance Convention may be made directly to the competent authorities;

Article 15a

COVERT INVESTIGATIONS

1. At the request of the requesting Member State, the requested Member State may authorize officers of the requesting Member State operating under cover of a false identity (covert investigators) to operate in the territory of the requested Member State. The requesting member State shall make the request only where it would be completely impossible or extremely difficult to elucidate the facts without recourse to the proposed investigative measures. The officers in question shall in the course of their activities be authorised only to collect information and to make contact with suspects or other persons associated with them.

2. Covert investigations in the requested Member State shall have a limited duration. The preparation and supervision of the investigations shall take place in close cooperation between the relevant authorities of the requested and requesting Member States.

3. The conditions under which a covert investigation is allowed, as well as the conditions under which it is carried out, shall be determined by the competent authority of the rquested Member State in accordance with its national law. If, in the course of a covert investigation, information is acquired in relation to an infringement other than that covered by the original request, then the conditions concerning the use to which such information may be put shall also be determined by the competent authority of the requested Member State in accordance with its national law.

4. The requested Member State shall provide the necessary manpower and technical support. It shall take all measures necessary to protect the officers referred to in paragraph 1, while they are active in the requested Member State.

5. When depositing its instruments of adoption of this Convention, a Member State may declare that it is not bound by Article 15a or part thereof. Such declaration may be withdrawn at any time.

Article 16

STATEMENTS

1. When giving the notification referred to in Article 18(2), each Member State shall make a statement naming:

(a) the competent administrative authorities or services with the meaning of Article 2(1);

(b) the other authorities competent to apply this Convention where not already indicated in the European Mutual Assistance Convention and the Benelux Treaty; and

(d) one or more central authorities for the purposes of applying Article 15 as well as the authorities competent to deal with the requests referred to in the second sentence of Article 15(7)(b).

2. Statements made in accordance with paragraph 1 may be amended in whole or in part at any time by the same procedure.

Article 17

RESERVATIONS

Reservations against this Convention are not permitted, with the exception of that referred to in Article 15(3).

Article 18

ENTRY INTO FORCE

1. This Convention shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.

2. Member States shall notify the Secretary-General of the Council of the European Union of the completion of the constitutional procedures for the adoption of this Convention.

3. This Convention shall enter into force ninety days after the notification referred to in paragraph 2 by the State, Member of the European Union at the time of adoption by the Council of the Act drawing up this Convention, which is last to complete that formality.

4. Until this Convention enters into force, any Member State may, when giving the notification referred to in paragraph 2 or at any other time, declare that as far as it is concerned this Convention shall apply to its relations with Member States which have made the same declaration. Such declarations shall take effect ninety days after the date of deposit thereof.

5. This Convention shall apply only to requests submitted after the date on which it enters into force or is applied as between the requested Member State and the requesting Member State.

Article 19

ACCESSION OF NEW MEMBER STATES

1. This Convention shall be open to accession by any State which becomes a member of the European Union.

2. The text of this Convention in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic.

3. The instruments of accession shall be deposited with the depositary.

4. This Convention shall enter into force with respect to any State which accedes to it ninety days after the deposit of its instrument of accession or on the date of entry into force of this Convention if it has not already entered into force at the time of expiry of the said period of ninety days.

5. Where this Convention is not yet in force at the time of the deposit of their instrument of accession, Article 18(4) shall apply to acceding Member States.

Article 20

DEPOSITARY

1. The Secretary-General of the Council of the European Union shall act as depositary of this Convention.

2. The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, statements and reservations and also any other notification concerning this Convention.

Done at …………………. on …………………. in a single original in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, all texts being equally authentic, such original being deposited in the archives of the General Secretariat of the Council of the European Union.