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The proposed Convention on mutual assistance on criminal matters

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11 October 2000

Submission by Statewatch to the House of Lords Select Committee on the European Union on the proposed Convention on mutual assistance on criminal matters, particularly organised crime and financial crime

Introduction

Since the EU mutual assistance Convention agreed in May will already have the effect of simplifying mutual assistance considerably, it can be questioned whether there is any need to reopen the issue barely a month later, long before seeing how that Convention works in practice.

The adoption of a second EU Convention on mutual assistance matters, in addition to a Council of Europe Convention and Protocol, an earlier EU Convention on this subject, several provisions in the Schengen Convention, and many mutual assistance provisions in specific EU measures, runs the risk of creating confusion among practitioners and interested bodies and persons. The Council should consider agreeing a formal or informal consolidation of the rules, or at least publish a clear and readable guide to the various provisions. EU extradition rules should also be consolidated and/or explained.

Explanatory memorandum of the Presidency

It is disturbing that the Presidency has based a large number of the provisions of the draft Convention at least in part on secret recommendations to Member States. The other main rationale for the various provisions is the 1997 High-Level Group report on organised crime and the Tampere conclusions, both prepared without any public input or discussion. It is long past time for the Council to release Green Papers and White Papers allowing for full discussion of issues before adoption of legislation, just as the Commission must do in the first pillar and as some Member States do before adoption of national criminal law. This is particularly true as regards this proposal, which relies on secret recommendations or secretly negotiated measures to suggest overturning important reservations made by Member States when agreeing international treaties, potentially as a requirement imposed by a national parliament for ratification of the treaty in question. In any event, the 1997 report considered organised crime, not financial crime in particular and not other forms of crime, which would be regulated by several provisions of this proposal.

Article 2

This Article would allow for search and seizure orders to apply even in relation to acts which were not criminal in the state which is executing the orders. The Presidency EM refers to para 33 of the Tampere conclusions but that para was only a very general endorsement of the principle of mutual recognition; it did not suggest that Member States drop every reservation applying to all relevant legal instruments. It is inappropriate to require Member States to drop such reservations before rules have been agreed to allow effective cross-border challenges to the validity and merits of the search and seizure orders. By what means will defence lawyers in one state have effective access to the courts of the Member State which issued the order?

This clause would extend to all mutual assistance, not just as regards serious or organised crime. There is no explanation of the reason for such a broad amendment.

Article 3

This Article raises important data protection issues, so the silence of this proposal on data protection matters is particularly significant (see comments below). It is striking that para 54 of the Tampere Conclusions, referred to by the Presidency, begins with the requirement of ‘due regard for data protection' and makes reference to ‘judicial control'. Both aspects are missing from this proposal. Moreover, it would be helpful if the proposal clarified the relationship of this provision with the role of Financial Intelligence Units, the subject of a separate proposal, which are also addressed in the Tampere conclusions.

There is no definition of ‘other commercial activities'. This runs the risk that Member States would be obliged to restrict lawyer/client confidentiality.

As drafted, the scope of this article could potentially go beyond organised and financial crime. There is no explanation of the justification for this.

Article 4

Article 4(1) should specify that it does not preclude the application of national data protection rules or to challenges to the use of such material as evidence under national law.

It is doubtful whether Article 4(2) is legally valid. The EU Treaty clearly specifies that measures implementing Conventions must be adopted by two-thirds vote, admitting for no exceptions. It is also clear from Article 39 EU that the European Parliament must be consulted on any measure referred to in Article 34(2)(b) to (d), implictly including implementation measures. At any rate, it is arguable whether the measure called for in this case would actually be an implementation measure, since it would set out rules concerning a broad and important area of activity which are only subject to very general principles in the draft Convention.

Article 5

As drafted this Article appears to apply to all crimes. The para of the Tampere conclusions referred to by the Presidency applies ‘when such information is necessary to combat money laundering'. The intent in the Presidency EM to limit this clause at least to financial investigations should be set out expressly and the Council should consider whether and explain why the principle should apply beyond money laundering investigations.

Article 5(1) must be subject to data protection rules, especially where a person is no longer being prosecuted or under suspicion. It would also be helpful if the relevant criteria and the meaning of Article 5(2) were more expressly spelled out.

Article 6

The para of the Tampere conclusions referred to by the Presidency only refers to money laundering cases. Here it is clearly the Presidency's intention to extend the scope of this Article to all types of mutual assistance, which given the wording of this provision may have nothing to do with financial matters. The reason for extending this Article to other matters should be fully explained and considered.

Article 7

As regards Article 7(2), it appears logical to replace the first line of Article 50(1) of the Schengen Convention by Article 7(1), but there are seem good reasons to retain the rest of Article 50 of Schengen, which contains, among other things, a useful data protection rule in Article 50(3). Deleting the de minimis clause in Article 50(4) Schengen appears directly contrary to the focus on ‘serious economic crime' in the Tampere conclusion referred to by the Presidency.

Article 8

This is a sweeping suggestion for which the Presidency has provided no justification except for speeches of a minister and secret recommendations to Member States. The proposed Framework Decision on money laundering proposes a much more limited removal of reservations regarding one particular aspect of mutual assistance in certain types of cases. This proposal is broader, raising issues of compatibility of the two proposals, and does not define its key terms (‘serious organised crime', ‘essential interests').

No such ‘bonfire' of reservations should take place without a proper study by the Council of the reservations which Member States can currently apply under the relevant provisions and the operation of those reservations in practice, in particular as regards reservations maintained on human rights or civil liberties grounds. It might be questionable whether Member States could retain such reservations by claiming that they defended each Member State's ‘essential interests'. This Article is closely related to the simplification of mutual assistance effected by the EU Convention agreed in May and so there are particularly good grounds for waiting to see how that Convention applies in practice before agreeing further removal of reservations to relevant treaties.

Article 13

The Presidency's EM claims that the final provisions are based on the Covnention agreed in May 2000, but Article 13 is in fact quite differently worded from the relevant provision in the earlier Convention.

Data protection rules

It is striking that the Convention draft makes no reference whatsoever to data protection rules. It should not be adopted unless it at least makes reference to the Council of Europe Recommendation and Convention and the rules in Article 23 of the existing EU Mutual Assistance Convention (but not the reference in Article 23(5) to Article 13 of that Convention, because Article 13(10)(d) arguably breaches Article 8 ECHR). Also, Member States should not agree on the text of the Convention before reaching agreement on the draft Resolution on general principles which should apply to data protection in the context of third pillar measures, which is presently under discussion.

It should be recalled that the requirement to observe data protection principles is expressly set out in the EU Treaty and forms part of the recently-agreed EU Charter of Fundamental Rights, which applies to third pillar matters.

Comments prepared by Steve Peers, Reader in Law, University of Essex.