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The draft Convention on Mutual Legal Assistance

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14 February 2000

Note from Statewatch on COPEN 60 (13451/99) - the draft Convention on Mutual Legal Assistance to the House of Lords Select Committee on the European Communities

The opportunity to comment on a recent draft of the Convention on mutual assistance on 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).

Overall comments

Despite the excellent work of your committee and by others 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 cooperation. Changes to the draft to cover covert operations, controlled deliveries and the interception of telecommunications all concern extending cross-border police cooperation. It is true that some of these activities require a judicial (or ministerial) order but they are nonetheless police practices.

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 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.

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.

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 access.

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' actions.

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 exchange of information)

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.

Article 9

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 end:

"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 by video conference)

General: At no point in this Article are the right 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 deliveries)

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 such activities.

Article 13

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 investigations)

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", there are rather examples of police cooperation.

Article 14(2) should specify that it is not open to Member States to exempt officers from liability when agreeing such rules.

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 for interception of telecommunications)

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 "an indication of the criminal conduct under investigation" and "a summary of facts". How are authorising authorities (i.e. 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 technically).

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 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 of interception.

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 of subjects on national territory by the use of service providers)

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.

Article 18

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 prevents 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 Dr. Heiner Busch (Berlin) with additional material from Tony Bunyan.