APPENDIX 5 (continued)
CONSIDERATION OF DRAFT CONVENTION ON MUTUAL ASSISTANCE
AND CO-OPERATION BETWEEN CUSTOMS AUTHORITIES (NAPLES II)
TITLE III
POLICE AND SECURITY
CHAPTER 1
POLICE CO-OPERATION
Article 39
1. The Contracting Parties undertake to ensure that their
police authorities shall, in compliance with national legislation
and within the scope of their powers, assist each other for the
purposes of preventing and detecting criminal offences, insofar
as national law does not stipulate that the request has to be
made via the judicial authorities and provided that the request
or the implementation thereof does not involve the application
of measures of constraint by the requested Contracting Party.
Where the requested police authorities do not have the power to
deal with a request, they shall forward it to the competent authorities.
2. The written information provided by the requested Contracting
Party under paragraph 1 may not be used by the requesting Contracting
Party as evidence of the criminal offence other than with the
consent of the competent judicial authorities of the requested
Contracting Party.
3. Requests for assistance referred to in paragraph 1 and
the replies to such requests may be exchanged between the central
bodies responsible in each Contracting Party for international
police co-operation. Where the request cannot be made in time
using the above procedure, the police authorities of the requesting
Contracting Party may address it directly to the competent authorities
of the requested Party, which may reply directly. In such cases,
the requesting police authority shall at the earliest opportunity
inform the central body responsible for international police co-operation
in the requested Contracting Party of its direct request.
4. In border regions, co-operation may be covered by arrangements
between the competent ministers of the Contracting Parties.
5. The provisions of this Article shall not preclude more
detailed present or future bilateral agreements between Contracting
Parties with common borders. The Contracting Parties shall inform
each other of such agreements.
Article 40
1. Police officers of one of the Contracting Parties who,
as part of a criminal investigation, are keeping under surveillance
in their country a person who is presumed to have been involved
in a criminal offence to which extradition may apply, shall be
authorized to continue their surveillance in the territory of
another Contracting Party where the latter has authorized cross-border
surveillance in response to a request for assistance which has
previously been submitted. Conditions may be attached to the authorization.
On request, the surveillance will be entrusted to officers
of the Contracting Party in whose territory this is carried out.
The request for assistance referred to in the first subparagraph
must be sent to an authority designated by each of the Contracting
Parties, which has jurisdiction to grant or to forward the requested
authorization.
2. Where, for particularly urgent reasons, prior authorization
cannot be requested from the other Contracting Party, the officers
carrying out the surveillance shall be authorized to continue
beyond the border the surveillance of a person presumed to have
committed offences listed in paragraph 7, provided that the following
conditions are met:
(a) The authorities of the Contracting Party designated
under paragraph 5, in whose territory the surveillance is to be
continued must be notified immediately, during the surveillance,
that the border has been crossed:
(b) A request for assistance submitted in accordance
with paragraph 1 and outlining the grounds for crossing the border
without prior authorisation shall be submitted without delay.
Surveillance shall cease as soon as the Contracting Party
in whose territory it is taking place so requests, following the
notification referred to in (a) or the request referred to in
(b) or where authorization has not been obtained five hours after
the border was crossed.
3. The surveillance referred to in paragraphs 1 and 2 shall
be carried out only under the following general conditions:
(a) The officers carrying out the surveillance must comply
with the provisions of this Article and with the law of the Contracting
Party in whose territory they are operating: they must obey the
instructions of the competent local authorities.
(b) Save for those situations outlined in paragraph 2,
the officers shall, during the surveillance, carry a document
certifying that authorization has been granted.
(c) The officers carrying out the surveillance must at
all times be able to provide proof that they are acting in an
official capacity.
(d) The officers carrying out the surveillance may carry
their service weapons during the surveillance save where specifically
otherwise decided by the requested Party, their use shall be prohibited
save in cases of legitimate self-defence.
(e) Entry into private homes and places not accessible
to the public shall be prohibited.
(f) The officers carrying out the surveillance may neither
challenge nor arrest the person under surveillance.
(g) All operations shall be the subject of a report to
the authorities of the Contracting Party in whose territory those
took place; the officers carrying out the surveillance may be
required to appear in person.
(h) The authorities of the Contracting Party which seconded
the surveillance officers shall, when requested by the authorities
of the Contracting Party in whose territory the surveillance took
place, assist the enquiry subsequent to the operation in which
they took part, including legal proceedings.
4. The officers referred to in paragraphs 1 and 2 shall be:
- as regards the Kingdom of Belgium: members of
the "police judiciaire preÁs les Parquets" the
"gendarmerie" and the "police communale" as
well as customs officers, under the conditions laid down in appropriate
bilateral agreements referred to in paragraph 6, with respect
to their powers regarding illicit trafficking of narcotic drugs
and psychotropic substances, trafficking of arms and explosives,
and the illicit transportation of toxic and dangerous waste;
- as regards the Federal Republic of Germany, officers
of the "Polizeien des Bundes und der LaÏnder" as
well as, with respect only to illicit trafficking of narcotic
drugs and psychotropic substances and arms trafficking, officers
of the "Zollfahndungsdienst" (customs investigation
service) in their capacity as auxiliary officers of the State
ministry;
- as regards the French Republic; officers and criminal
investigation police officers of the national police and national
"gendarmerie" as well as customs officers, under the
conditions laid down in appropriate bilateral agreements referred
to in paragraph 6, with respect to their powers regarding illicit
trafficking of narcotic drugs and psychotropic substances, trafficking
of arms and explosives, and the illicit transportation of toxic
and dangerous waste;
- as regards the Grand Duchy of Luxembourg: officers
of the "gendarmerie" and the police as well as customs
officers, under the conditions laid down in appropriate bilateral
agreements referred to in paragraph 6, with respect to their powers
regarding illicit trafficking of narcotic drugs and psychotropic
substances, trafficking of arms and explosives, and the illicit
transportation of toxic and dangerous waste;
- as regards the Kingdom of the Netherlands: officers
of the "Rijkspolitie" and the "Gemeentepolitie"
as well as, under the conditions laid down in appropriate bilateral
agreements referred to in paragraph 6, with respect to their powers
regarding illicit trafficking of narcotic drugs and psychotropic
substances, trafficking of arms and explosives and the illicit
transportation of toxic and dangerous waste, officers of the tax
inspection and investigation authorities responsible for entry
and excise duties.
5. The authority referred to in paragraphs 1 and 2 shall
be:
- as regards the Kingdom of Belgium: the "Commissariat
général de la Police judiciare";
- as regards the Federal Republic of Germany; the
"Bundeskriminalamt";
- as regards the French Republic; the "Direction
centrale de la Police judiciaire";
- as regards the Grand Duchy of Luxembourg: the "Procureur
général d'Etat;"
- as regards the Kingdom of the Netherlands: the "Landelljk
Officier van Justitie" responsible for cross-border surveillance.
6. The Contracting Parties may, at bilateral level, extend
the scope of this Article and adopt additional measures in application
thereof.
7. The surveillance referred to in paragraph 2 may only be
carried out where one of the following criminal offences is involved:
- assassination,
- murder;
- rape;
- arson;
- counterfeiting;
- armed robbery and receiving stolen goods;
- extortion;
- kidnapping and hostage taking;
- trafficking of human beings;
- Illicit trafficking of narcotic drugs and psychotropic
substances;
- breach of the laws on arms and explosives;
- use of explosives;
- illicit transportation of toxic and dangerous waste.
Article 41
1. Officers of one of the Contracting Parties who are pursuing,
in their country, an individual apprehended in the act of committing
one of the offences referred to in paragraph 4 or involved in
one of those offences, shall be authorized to continue pursuit
in the territory of another Contracting Party without prior authorization,
where given the particular urgency of the situation it is not
possible to notify the competent authorities of the other Contracting
Party by one of the means provided for in Article 44 prior to
entry into that territory or where these authorities are unable
to reach the scene in time to take over the pursuit.
The same shall apply where the person being pursued has escaped
from temporary custody or while serving a custodial sentence.
The pursuing officers shall, at the latest when they cross
the border, contact the competent authorities of the Contracting
Party in whose territory the pursuit is to take place. The pursuit
will cease as soon as the Contracting Party in whose territory
the pursuit is taking place so requests. At the request of the
pursuing officers, the competent local authorities shall challenge
the pursued person in order to establish his/her identity or to
make an arrest.
2. The pursuit shall be carried out in accordance with one
of the following procedures, defined by the declaration laid down
in paragraph 9:
(a) The pursuing officers shall not have the right to
apprehend.
(b) If no request to cease the pursuit is made and if
the competent local authorities are unable to intervene quickly
enough, the pursuing officers may detain the person being pursued
until the officers of the Contracting Party in whose territory
the pursuit is taking place, who must be informed without delay,
are able to establish the person's identity or make an arrest.
3. Pursuit shall be carried out in accordance with paragraphs
1 and 2 and as defined by the declaration laid down in paragraph
9, in one of the following ways:
(a) in an area or during a period from the time the border
was crossed, to be established in the declaration;
(b) without geographical or time limits.
4. In a declaration referred to in paragraph 9, the Contracting
Parties shall define the offences referred to in paragraph 1 in
accordance with one of the following procedures:
(a) The following offences:
- assassination
- murder
- rape
- arson
- counterfeiting
- armed robbery and receiving stolen goods
- extortion
- kidnapping and hostage taking
- trafficking of human beings
- illicit trafficking of narcotic drugs and psychotropic
substances
- breach of the laws on arms and explosives
- use of explosives
- illicit transportation of toxic and dangerous waste
- failure to report an accident which has resulted
in death or serious injury
(b) Extraditable offences:
5. Pursuit shall be carried out under the following general
conditions:
(a) The pursuing officers shall comply with the provisions
of this Article and with the law of the Contracting Party in whose
territory they are operating: they shall obey the instructions
issued by the competent local authorities.
(b) Pursuit shall be solely over land borders.
(c) Entry into private homes and places not accessible
to the public shall be prohibited.
(d) The pursuing officers shall be easily identifiable,
either by their uniform, by means of an armband or by accessories
fitted to their vehicle; the use of civilian clothes combined
with the use of unmarked vehicles without the aforementioned identification
is prohibited; the pursuing officers must at all times be able
to prove that they are acting in an official capacity.
(e) The pursuing officers may carry their service weapons;
their use shall be prohibited save in cases of legitimate self-defence.
(f) Once the pursued person has been apprehended as provided
for in paragraph 2 (b), for the purpose of bringing him/her before
the competent local authorities he/she may only be subjected to
a security search; handcuffs may be used during the transfer,
objects carried by the pursued person may be confiscated.
(g) After each operation referred to in paragraphs 1,
2 and 3, the pursuing officers shall appear before the competent
local authorities of the Contracting Party in whose territory
they were operating and shall give an account of their mission,
at the request of those authorities, they shall remain at their
disposal until the circumstances surrounding their action have
been clearly established; this condition shall apply even where
the pursuit has not resulted in the arrest of the person being
pursued.
(h) The authorities in the Contracting Party of the pursuing
officers shall, when requested by the authorities of the Contracting
Party in whose territory the pursuit took place assist the enquiry
subsequent to the operation in which they took part, including
legal proceedings.
6. Persons who, following the action taken in accordance
with paragraph 2, have been arrested by the competent local authorities
may, irrespective of their nationality, be held for questioning.
The relevant rules of national law shall apply by analogy.
If the person is not a national of the Contracting Party
in the territory of which he/she was arrested, then that person
shall be released no later than six hours after the arrest was
made, not including the hours between midnight and 9.00 in the
morning, unless the competent local authorities have previously
received a request for that person's temporary arrest for the
purposes of extradition in any form whatsoever.
7. The officers referred to in the previous paragraphs shall
be:
- as regards the Kingdom of Belgium: members of
the "police judiciaire pres les Parquets", the "gendarmerie"
and the "police communale" as well as customs officers,
under the conditions laid down in appropriate bilateral agreements
referred to in paragraph 10, with respect to their powers regarding
illicit trafficking of narcotic drugs and psychotropic substances,
trafficking of arms and explosives, and the illicit transportation
of toxic and dangerous waste;
- as regards the Federal Republic of Germany: officers
of the "Polizeien des Bundes und der Lander", as well
as, with respect only to illegal trafficking in narcotic drugs
and psychotropic substances and arms trafficking, officers of
the "Zollfahndungsdienst" (customs investigation service)
in their capacity as auxiliary officers of the State ministry;
- as regards the French Republic: officers and criminal
investigation police officers of the national police and national
"gendarmerie" as well as customs officers, under the
conditions laid down in the appropriate bilateral agreements referred
to in paragraph 10, with respect to their powers regarding illicit
trafficking of narcotic drugs and psychotropic substances, trafficking
of arms and explosives, and the illicit transportation of toxic
and dangerous waste;
- as regards the Grand Duchy of Luxembourg: officers
of the "gendarmerie" and the police as well as customs
officers, under the conditions laid down in the appropriate bilateral
agreements referred to in paragraph 10, with respect to their
powers regarding illicit trafficking of narcotic drugs and psychotropic
substances, trafficking of arms and explosives, and the illicit
transportation of toxic and dangerous waste;
- as regards the Kingdom of the Netherlands: officers
of the "Rijkspolitie" and the "Gemeentepolitie"
as well as, under the conditions laid down in the appropriate
bilateral agreements referred to in paragraph 10, with respect
to their powers regarding the illicit trafficking of narcotic
drugs and psychotropic substances, trafficking of arms and explosives
and the illicit transportation of toxic and dangerous waste, officers
of the tax inspection and investigation authorities responsible
for entry and excise duties.
8. This Article shall apply without prejudice, where the
Contracting Parties are concerned, to Article 27 of the Benelux
Treaty of 27 June 1962 on Extradition and Mutual Assistance in
Criminal Matters, as amended by the Protocol of 11 May 1974.
9. On signing this Convention, each Contracting Party shall
make a declaration in which it shall define for each of the Contracting
Parties with which it has a common border, on the basis of paragraphs
2, 3 and 4 above, the procedures for carrying out a pursuit in
its territory.
A Contracting party may at any time replace its declaration
by another declaration, provided the latter does not limit the
scope of the former.
Each declaration shall be made after consultation with each
of the Contracting Parties concerned and with a view to obtaining
equivalent arrangements on both sides of internal borders.
10. The Contracting Parties may, on a bilateral basis, extend
the scope of paragraph 1 and adopt additional provisions in accordance
with this Article.
Article 42
During the operations referred to in Articles 40 and 41,
officers operating on the territory of another Contracting Party
shall be regarded as officers of that Party with respect to offences
committed against them or by them.
Article 43
1. Where, in accordance with Articles 40 and 41 of this Convention,
officers of a Contracting Party are operating in the territory
of another Contracting Party, the first Contracting Party shall
be responsible for any damage caused by them during the course
of their mission, in accordance with the law of the Contracting
Party in whose territory they are operating.
2. The Contracting Party in whose territory the damage referred
to in paragraph 1 is caused shall repair such damage under the
conditions applicable to damage caused by its own officers.
3. The Contracting Party whose officers have caused damage
to any person in the territory of another Contracting Party shall
reimburse the latter in full any sums it has paid to the victims
or other entitled persons.
4. Without prejudice to the exercise of its rights vis-aÁ-vis
third parties and without prejudice to paragraph 3, each Contracting
Party shall refrain. In the case provided for in paragraph 1,
from requesting reimbursement of damages it has sustained from
another Contracting Party.
Article 44
1. In accordance with the relevant international agreements
and account being taken of local circumstances and technical means,
the Contracting Parties shall install, in particular in border
areas, telephone, radio, and telex lines and other direct links
to facilitate police and customs co-operation, in particular for
the rapid transmission of information for the purposes of cross-border
surveillance and pursuit.
2. In addition to these short-term measures, they will in
particular consider the following options:
(a) exchanging equipment or posting liaison officials
equipped with suitable radios;
(b) widening the frequency bands used in border areas;
(c) establishing a common contact point for police and
customs services operating in these same areas;
(d) co-ordinating their programmes for the procurement
of communications equipment, with a view to installing standardised
and compatible communications systems.
Article 45
1. The Contracting Parties undertake to adopt the requisite
measures in order to guarantee that:
(a) the managers of establishments providing accommodation
or their employees ensure that aliens accommodated therein, including
nationals of the other Contracting Parties and those of other
Member States of the European Communities, with the exception
of accompanying spouses or minors or members of travel groups,
personally complete and sign declaration forms and confirm their
identity by producing a valid identity document;
(b) the completed declaration forms will be kept for
the competent authorities or forwarded to them where such authorities
deem this necessary to prevent threats, for the purposes of initiating
criminal proceedings or to ascertain what has happened to persons
who have disappeared or who have been the victim of an accident,
save where national law provides otherwise.
2. Paragraph 1 shall apply by analogy to persons staying
in any commercially rented accommodation, in particular tents,
caravans and boats.
Article 46
1. In certain cases, each Contracting Party may, in compliance
with its national legislation and without being asked, send the
Contracting Party concerned any information which may be of interest
to it in helping prevent future crime and offences against or
threats to public policy and security.
2. Information shall be exchanged, without prejudice to the
arrangements for co-operation in border areas referred to in Article
39(4), via a central body to be designated. In particularly urgent
cases, the exchange of information within the meaning of this
Article may take place directly between the police authorities
concerned, unless national provisions stipulate otherwise. The
central body shall be informed of this as soon as possible.
Article 47
1. The Contracting Parties may conclude bilateral agreements
providing for the secondment, for a specified or unspecified period,
of liaison officers from one Contracting Party to the police authorities
of another Contracting Party.
2. The secondment of liaison officers for a specified or
unspecified period is intended to further and accelerate co-operation
between the Contracting Parties, particularly by providing assistance:
(a) in the form of the exchange of information for the
purposes of combating crime both by preventative and punitive
means;
(b) in complying with requests for mutual police assistance
and legal assistance in criminal matters;
(c) for the purposes of missions carried out by the authorities
responsible for the surveillance of external borders.
3. Liaison officers shall have the task of providing advice
and assistance. They shall not be competent to take independent
police action. They shall supply information and perform their
duties in accordance with the instructions given to them by the
Contracting Party of origin and by the Contracting Party to which
they are seconded. They shall report regularly to the head of
the police department to which they are seconded.
4. The Contracting Parties may agree within a bilateral or
multilateral framework that liaison officers from a Contracting
Party seconded to Third States shall also represent the interests
of one or more other Contracting Parties. Under such agreements,
liaison officers seconded to Third States shall supply information
to other Contracting Parties when requested to do so or on their
own initiative and shall, within the limits of their powers, perform
duties on behalf of such Parties. The Contracting Parties shall
inform one another of their intentions with regard to the secondment
of liaison officers to third States.
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