Memorandum by Statewatch
The opportunity to comment on a recent draft
of the Convention on mutual assistance in criminal matters (Council
document 13451/99) is welcome. This draft differs in many important
ways from the draft considered by the Committee in early 1998,
and also differs to some extent from the draft being considered
at present by the European Parliament (OJ 1999, C 251).
Despite the excellent work of your committee
and by others on the draft Convention as set out in COPEN 60 there
remain substantial concerns over its content and implications.
These concerns are partly due to the changed
nature of the draft Convention. The objective of the first drafts
in 1996 was to improve judicial co-operation. Changes to the draft
to cover covert operations, controlled deliveries and the interception
of telecommunications all concern extending cross-border police
co-operation. It is true that some of these activities require
a judicial (or ministerial) order but they are nonetheless police
A number of measures have introduced similar
practices: the 1988 Vienna Convention on drugs refers to controlled
deliveries (Article 11); the Schengen Convention contains regulations
on cross border observations (Article 40) and controlled deliveries
of illegal drugs (Article 76); the Naples II Convention covers
cross border observations, controlled deliveries and covert investigations
(and the creation of joint teams). The purpose of these measures
and the present draft Convention is not to place limits and checks
on existing practices but rather to extend them and make their
operation more efficient.
The present draft Convention, like previous
versions, provides no limit on the offences for which these investigative
and intrusive techniques may be employed. By simply seeking to
"supplement" the 1959 Convention, which covers any offence
however minor (see Explanatory Report), the provisions contain
no test of a "serious" crime. This point was also raised
by the House of Commons European Scrutiny Committee. Thus although
the need for the Convention is presented as necessary to combat
serious/organised crime there is clearly no intention to limit
its use to such offences.
Overall it can only be observed that this draft
Convention when adopted by the Council of Ministers will still
have to be ratified at national level. If concerns about serious
crime and the need for increased powers of police surveillance
on the one hand are balanced by the need to provide for scrutiny,
accountability and safeguards for the rights of the citizen on
the other it is hard to see how this measure would pass this test.
(1) ARTICLE 4(3)
General: Traditionally it is the requested state
which defines how and under what conditions requests are considered.
Here it is the requesting state which holds the initiative.
This Article should be reworded to make clear
that the right of a requesting Member State to insist upon execution
of its request is without prejudice to the right of the requested
state to refuse the request if it is "contrary to the fundamental
principles of law" in that State (Article 4(1)). This is
necessary to ensure that the right to refuse a request in those
circumstances is absolute.
Provisions identical to Articles 7(2) and 7(3)
should be inserted into Article 4. This will preserve the right
of Member States to control the use of the information supplied
to other Member States in the context of responding to a request,
as well as in the context of a spontaneous offer of information.
This is necessary to ensure that Member States are always able
to give effect to the protections set out in their laws on criminal
procedure and evidence.
(2) ARTICLE 6
General: The written form of requests and responses
is not only needed to provide authenticity for the authorities
but also for any criminal proceedings and for a defendant to have
Article 6(1). This Article should be amended
to read: "shall be made in writing, or if necessary, by any
other means, provided that a full written record of the request
is also produced simultaneously, or if as soon as possible after
the request a simultaneous production is impossible in practice".
It is essential to require expressly that a written record is
always produced, for it would otherwise be impossible to ensure
that a request was legally made and legally executed, and thereby
"in accordance with the law" as required by the ECHR.
The suggested wording takes account of the intention (see footnote
2 on page 62) to allow for oral requests in urgent cases, but
neither the current proposed wording of Article 6(1) nor this
footnote recognizes explicitly that written records must always
be produced to ensure the legality and accountability of the authorities'
Article 6(3). This Article obviously refers
to the UK and Ireland. It is questionable whether the Convention
should require them to make such a declaration upon signing up
to the relevant provisions of the Schengen acquis, given
the earlier testimony of the Home Office before this Committee
to the effect that communication via the central office was in
practice more efficient in this country (the position in Ireland
is unknown). The current draft values harmonization above effectiveness.
ARTICLE 7 (SPONTANEOUS
Mutual legal assistance has traditionally been,
by definition, information supplied as a result of a formal request
related to an ongoing investigation. It is therefore reactive.
Spontaneous exchange (also provided for in the Schengen Treaty,
Articles 39 and 46) mainly refers to police requests (or instructing
judge) not to judicial authorities. In effect the police can communicate
information or suspicions which may lead to an investigation.
Informal contacts between police forces, which have often been
criticised, are under this Article simply formalised without any
checks being put in place.
A new paragraph must be inserted in Article
9 to deal with the situation where a period of detention expires
while a person is in the requested Member State. The draft report
of the EP's civil liberties committee on the Convention (1999/0809
(CNS)-F, 21 Dec 1999) suggests a well-drafted amendment to this
"The State in which the person concerned
was originally held in custody shall notify the State to which
the person is transferred of the date on which the period of detention
ends. Where this date falls during the period of transfer, the
person concerned shall immediately be released by the competent
authority of the State in whose territory he [or she] is to be
found unless he [or she] is in custody for other reasons".
It may be necessary to adjust this amendment
slightly to facilitate the return of the released person to the
Member State which had initially detained him or her.
A further new paragraph must be inserted in
Article 9 to make clear that a person transferred pursuant to
this Article can challenge his or her detention in either the
Member State which initially detained the person or the Member
State which is now detaining the person pursuant to this Article.
This is necessary because at that point both States are jointly
responsible for the detention of that person, and so should both
be subject to such challenge in accordance with Article 5 ECHR
and any higher standards in national law which apply. Without
such a clause, there is a risk that the Member States will take
the view that the detention can only be challenged in only one
Member State, or not at all.
ARTICLE 10 (HEARING
General: At no point in this Article are the
rights of the defendant set out, for example, to have a lawyer
or a translator.
Article 10(3) and (5b) the wording "it
is not desirable or possible for the witness or expert to attend"
and "protection of the person". Does this mean the person
in question cannot be questioned by the defence and/or that the
name and position of the person will be withheld or that there
will be sound but no picture?
Article 10(5) should be amended to provide for
legal advice and assistance regarding the hearing and the presence
of a legal adviser. This is essential to ensure that the protections
set out in Article 10(5), particularly in sub-paragraph (e), are
guaranteed in practice.
Article 10(5)(d) should be amended to ensure
that the appointment of an interpreter should be at the request
of the person being interviewed. Leaving the matter to the national
judge runs the risk that the right to interpretation pursuant
to Articles 5 and 6 ECHR might be infringed.
Article 10(6) should be amended to make clear
that the document in question shall be subject to the national
rules on disclosure of prosecution documents in both the requested
and requesting Member States. The reason for this change is that
otherwise the document might be seen as possessing a special status,
undermining national law on disclosure of documents to the defence.
Article 10(9) should be split into a separate
Article that also covers co-defendants and persons under investigation
alone or with others. These changes are in accordance with the
proposed amendments in the EP's draft report, which rightly stress
that the rights of the defence are so important that they must
be in a separate Article, and that co-defendants and persons under
investigation deserve equal protection to the accused person.
Most importantly, this Article must be amended
to the effect that it shall not come into force until the Council
has adopted an instrument concerning protection of the rights
of the accused. This accords with the draft EP report, and it
is essential to ensure effective protection for the accused. Although
of course the ECHR covers persons involved in cross-border trials,
it does not set out detailed rules governing their status and
so it is important to agree such rules in advance so as to reduce
the risk that such trials will be found in breach of the ECHR,
and of higher national standards.
ARTICLE 12 (CONTROLLED
The inclusion of controlled deliveries only
makes sense if it refers to specific controlled goods like drugs
and gold. To extend them to "extraditable offences"
begs the question what are the limits? In most countries even
petty thefts are extraditable.
In practice the problem with controlled deliveries
occurs where the delivery is controlled by an infiltrated agent
or by a paid informer. There have been many cases initiated by
the actions of police agents where no interested buyer existed.
There is no provision in this Convention to govern and monitor
Article 13(3) is now very confusing and ambiguous.
This results from the amendment to the last line of Article 13(1)
to the effect that the team will be "set up" in only
one Member State, coupled with the opening words of Article 13(3)
stating that the team will "operate" in more than one
Member State. But Article 13(3)(a), (b) and (c) all assume that
the team will operate in only one Member State. The lines of authority
and accountability will become very confused. Articles 13(4) and
(5) are similarly ambiguous.
Provision of information. Article 13(8) (formerly
Article 13(7) in the July published 1999 draft) subjected such
provision to Article 7 of the Convention. This was an essential
safeguard for use of this information that must be reinserted.
Furthermore, Article 13(9), which has been inserted
since the published draft, is highly objectionable. It places
no effective controls whatsoever on the information obtained during
an investigation by a joint team. Article 13(9)(d) is particularly
striking, since it gives complete carte blanche for Member
States to use information obtained for any purpose whatsoever
at their discretion. This shows a complete disregard for data
protection rules, and it is remarkable that the Member States
would consider adopting a Convention with such a clause and without
even a reference to data protection law.
The wording of Article 13(9) could tempt Member
States to set up and second persons to joint teams purely for
the purpose of gathering information in breach of national data
protection rules ("fishing expeditions"). The Article
also ignores the important distinction between "hard"
and "soft" data for police purposes, and might (for
example) lead to the transmission of "soft" data to
immigration authorities for the purposes of considering expulsion
or exclusion of persons, with a consequential difficulty for the
person affected in obtaining disclosure of the relevant information
because of the context in which it was obtained.
Article 13(9) should therefore be amended by:
(a) subjecting the entire paragraph to the protections of Article
7; (b) deleting the second line of Article 13(9)(b) and replacing
it with an obligation to comply with national data protection
law in both the state in which the information became available
and the state which wishes to use it; and (c) deleting Article
13(9)(d) in its entirety.
Article 13(11): this provision would allow Europol
officers to "take part in the activities of the team"
thus giving them an operational role.
ARTICLE 14 (COVERT
General: No definition is given for offences
where covert agents can be used, nor is any provision made for
covert agents to appear as witnesses and hence to be open to questioning
by the defence.
This provision formalises to common current
practices: first, where a covert police agent makes contact with
a suspected dealer in state A who then goes on holiday to state
B and takes the agent with them. The investigation thus extends
to two states. Second, where state A want to infiltrate a covert
agent from state B and they "borrow" them. Neither of
these instances can, in the strict sense, be called "mutual
legal assistance", they are rather examples of police co-operation.
Article 14(2) should specify that it is not
open to Member States to exempt officers from liability when agreeing
Articles 14a and 14b are very welcome additions
and the Convention should not be approved unless they are included.
These clauses have been transposed from Articles 42 and 43 of
the Schengen Convention. Yet the draft mutual assistance Convention
does not contain any rules on the accountability of officers involved
in such operations (see Articles 40(3)(h) and 41(5)(g) of the
Schengen Convention). The Convention should not be agreed without
a further Article providing for such accountability.
ARTICLE 16 (REQUEST
General: Articles 16, 17 and 18 are the most
contentious in the draft Convention and have been the subject
of numerous revisions since 1997. The December meeting of the
JHA Council left unresolved two major issues (whether "silence"
implied consent and over the Italian "ground station"
for satellite telecommunications).
In most EU Member States interception has to
be authorised by a judge based on information supplied by the
police and in Germany for example this can lead to a foreign
police officer being called to testify. Under these provisions
some interceptions would simply be authorised by general, unlimited,
warrants (with no judicial consideration) and others subject to
very short timetables. In some instances judges are simply to
be provided with "indications" and "summaries"
by the requesting Member State.
Article 16 (3d and 4): under these provisions
the requested state will get "an indication of the criminal
conduct under investigation" and "a summary of facts".
How are authorising authorities (ie Minister in UK, judge in Germany)
to properly decide if the interception is appropriate, lawful
and the most necessary means if they only have basic details?
In the case of 16.2(a) and 2(c) (and Article 18) the notified
state will not even get this information (it simply has to assist
Article 16(5): It is not acceptable that interception
can take place on a Member State's national territory at the request
of another Member State, unless such interception conforms to
the national law of the requested state. Member States' breaches
of Article 8 ECHR have been repeatedly condemned by the European
Court of Human Rights, and because of the nature of interception
it is difficult to determine whether the ECHR and national rules
with a higher standard are being upheld. For that reason it is
essential that any cross-border interception must always be in
accordance with the law of both the requested and the requesting
states. Otherwise, there may be a temptation for Member States'
authorities to "forum-shop" and route interception requests
through the Member State with the lowest standards, and/or the
weakest regard for upholding the rules governing authorization
Therefore Article 16(5) should be deleted and
Article 16(6) should govern all requests under Article 16(1).
Moreover, Article 16(6) should be amended to read that Member
States shall impose any conditions which they would impose if
a national authority had requested the interception.
ARTICLE 17 (INTERCEPTION
General: This is the "Iridium" provision.
Iridium, a satellite telecommunications provider, has its "ground
station" in Italy to serve the whole of the EU and offered
what the Council called a "convenient" solution by automatically
providing access to communications. Iridium has since gone into
voluntary bankruptcy in the US. Italy has always objected, and
still does, to the granting of "automatic" general warrants
(as distinct from individual warrants) for interception without
any judicial authorisation.
Article 17 should specify that nothing in that
Article derogates from the requirements of Article 16(6) (after
being amended as suggested above) and that no "automatic"
general warrants be allowed for.
General: The traditional procedure where the
requested state (notified state) is able to decide on interception
is reversed. The notified state has to give reasons why they do
not want a citizen or resident to be placed under surveillance.
The December meeting of the Justice and Home
Affairs Council failed to resolve the issue of whether "silence"
from the "informed" Member State implied prohibition
or acceptance. Belgium, Denmark, Italy, Portugal and the Commission
favoured silence implying acceptance and Austria, UK, Germany
and Ireland also favoured this approach (but were said to be "flexible").
Only France and Spain favoured "silence" meaning prohibition.
Article 18 should be deleted and it should be
made clear that interception of the sort described in Article
18 shall be subject to the rules in Article 16. It is not acceptable
that interception can take place without the consent of a Member
State in which a person is present. This would prevent application
of the national law in which a person is present as a condition
for cross-border interception, and in particular Member States
should not be given the option of essentially automatically approving
other Member States' requests (Article 18(6)). There are overwhelming
reasons against the adoption of Article 18, which would constitute
a dramatic diminution in national human rights protection for
persons present on a Member State's territory.
Statewatch comments prepared by Steve Peers,
Reader in Law, Human Rights Centre, University of Essex and Heiner
Busch (Berlin) with additional material from Tony Bunyan.
14 February 2000