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EU: New Convention on mutual assistance in criminal matters

Statewatch bulletin, July-October 1997, vol 7 nos 4 & 5

The present situation - Council of Europe Convention and Protocol to Convention

The primary instrument currently governing mutual assistance between the EU member states is the Council of Europe (CoE) Convention on mutual assistance in criminal matters of 1959, which entered into force in 1962. This Convention has been supplemented by an Additional Protocol, signed in 1978, which entered into force in 1982. The Convention is now in force in 30 states, including all 15 member states of the EU. The Protocol is in force in 24 states, including 13 Member States of the EU (Belgium and Luxembourg have yet to ratify it). Once these two states ratify the Protocol, it will be binding on all Member States of the EU.

Both the Convention and the Protocol are instruments of public international law, whose legal effect for individuals is dependent upon how each state decides to give effect to rules of international law in its national legal system. There is no judicial system for reviewing or interpreting the Convention or Protocol, or for settling disputes relating to their application. National rules implementing the Convention or Protocol have to conform to the Human Rights Convention, notably Articles 5 (rights on detention) and 6 (rights to a fair trial). Both the Convention and the Protocol are subject to reservations on any of their provisions by any signatory.

What needs to emphasised, especially in relation to the new draft EU Convention is that the CoE Convention deals purely with relations between judicial authorities - policing and law enforcement issues entirely outside its scope.

Equally, enforcement of criminal sentences is a matter for separate Council of Europe Conventions, on transfer of prisoners, transfer of proceedings and the international validity of criminal judgements. These Conventions have fewer signatories than the mutual assistance Convention and have not yet been subject to any attempts to supplement them through the 'third pillar' of the EU.

The 1959 Convention does not apply to political offences or offences connected with political offences, or to fiscal offences. It also contains a very general exception which states can invoke to protect sovereignty, security or public order (ordre publique).

In practice the 1959 Convention works by means of "Letters Rogatory" sent by judicial authorities in the state which requests evidence (the "requesting state") to the state which has the evidence (the "requested state"). The letters rogatory are sent through the Home Affairs ministries.

The 1959 Convention covers physical evidence as well as appearance of natural persons. Witnesses in the requested state can be summoned to the proceedings in the requesting state. However, the summons is not binding upon the witnesses and the requesting state can only enforce the summons against the witnesses if the witnesses cross into the requesting state, receive another summons from the authorities, and then ignore it. The Convention also covers people who are in custody in the requested state, where the requesting state wants them to testify. The person has the right to object to testifying in the requesting state.

The Protocol widens the scope of the 1959 Convention allowing it to be used for fiscal offences and makes it clear that the "double criminality" rule (requiring an offence to be punishable in both the requested and requesting state for the Convention to apply) is to be relaxed for such offences.

The subject of interception of telecommunications is not covered by either the 1959 Convention or the Protocol. The only relevant provision is Recommendation (85)10 of the Council of Europe Committee of Ministers.

The new draft EU Convention: first phase of discussions

The initial purpose of the negotiations on a EU Convention for mutual criminal assistance was to facilitate the operation of the 1959 Council of Europe Convention and Protocol - not to extend its scope into the field of criminal investigations.

The first drafts (April and July 1996) did, however, include some significant extensions in the powers of the authorities to gather evidence and to get witnesses into court. Article 2 allows requests to be made by "administrative authorities" concerning "infringements of public order provisions", for example, by Germany.

Article 3 provides for an exception to the rule that a person must consent before a transfer (compared with Article 11 of the 1959 CoE Convention, which deals with transfers in different circumstances); the exception is that the person may be forcibly moved if "charged in the course of proceedings for which the investigation has been requested". This provision runs the risk of allowing states to circumvent the guarantees provided for in extradition treaties, or encouraging them to bring additional charges against a person in custody in order to ensure the person's transfer for "use" in another state's proceedings. Article 6 is a completely new development in international judicial assistance, providing that witness statements may be taken by video conference. The requested state is generally obliged to summon a person to give evidence in this fashion (Article 6(3)), and the summoned person will then be under an obligation to give evidence. An obligation to give evidence does not exist under the present 1959 CoE Convention. The new Convention would provide for a substantial increase in the power of one Member State to compel a person in another Member State to give evidence. In this draft, it would have fallen to the requesting state to conduct the hearing (Article 6(4)), but to the requested state to ensure "due regard for the [witness'] fundamental rights" (Article 6.5)).

The July 1996 draft of the new Convention is a very good example of the case for national parliaments to be able to scrutinise early drafts of measures. There are no less than 36 reservations or differing views expressed by EU member states. While some of these are simply reservations on minor points, others are not. For example, "Scrutiny reservations on the whole text by German, Irish and United Kingdom delegations" and on the issue of the giving of evidence by video conference Austria, Finland and Portugal said this should not take place without the consent of the person concerned, France, Italy and the UK did not agree as the person would already have been summoned.

Second phase: Beyond traditional judicial assistance

The July 1996 draft of the new Convention had 11 Articles - the May 1997 draft has 20 Articles. Under the Irish Presidency it was decided that the scope of the new Convention should be expanded far beyond judicial criminal assistance as it is commonly understood. The EU Dublin Summit in December 1996 decided to set up the "High Level Group on Organised Crime" which reported back with its "Action Plan to combat organised crime" to the June 1997 EU Summit in Amsterdam. The "Action Plan" report had several recommendations which it was decided to slot into the draft Convention on mutual assistance on criminal matters, and which had implications well beyond any understanding of "organised crime". At the same time the need to legitimise the interception of telecommunications was moving ahead.

New issues were put on the table for the Working Party on Mutual Assistance in Criminal Matters: Controlled deliveries, cross-border use of undercover investigators, cross-border surveillance and hot pursuit, cross-border bugging of vehicles or monitoring of vehicle movement, cross-border use of private informers or private undercover agents, joint teams, mutual assistance on Internet matters, and the surveillance of satellite communications were discussed.

By April a report was before the K4 Committee. The conclusions included:

1) the draft Convention "should contain additional provisions" on "controlled deliveries": "all Member States consent to the use of this method". The "method" according to the UN 1988 Convention on drugs is: "the technique of allowing illicit or suspect consignments of drugs to pass out of, through or into the territory of one or more countries, with the knowledge and under the supervision of their competent authorities". The Working Party recommended the new Convention should extend this beyond drugs to cover "arms, money etc".

2) "cross border use of undercover investigators (law enforcement agents)": "undercover investigators" are "law enforcement agents as opposed to private persons" and: "In some Member States undercover investigators may be used as part of police work without any specific legal basis. In others national law contains more precise and direct provisions on this issue." As the practice varies "no rules" can be established, so current unregulated bilateral cooperation continues.

3) the report says that the draft Convention does not need to include: "cross border surveillance and cross border hot pursuit": already covered by Articles 40 and 41 of the 1990 Schengen Convention except for Ireland and UK; "cross border use of technical equipment attached to vehicles or objects for the sole purpose of monitoring movements.." : "used in all members states", covered by "existing mutual assistance instruments"; "cross border use of technical equipment attached to or installed in vehicles to monitor communications taking place therein": most member states do not provide for this in "national law", in some "expressly forbidden", but in member states where allowed it is covered by existing instruments"; "joint teams": the Working Party concluded that there was no need for a provision in the draft convention as it was already covered by the 1959 CoE Convention and Article 47 of the 1990 Schengen Convention. The new draft thus includes in Article 10 that "controlled deliveries" shall be allowed "in the framework of criminal investigations into extraditable offences" - this formula of "extraditable offences" allows the remit to go beyond drugs. Only Portugal has a reservation on this extension (see Statewatch, vol 7 no 2 for the wide definition in the Extradition Convention). Article 4 on searches and seizure would delete the reservations which Member States have attached to Article 5 of the 1959 Council of Europe Convention. Without these reservations property could be searched or seized even if the property owner is accused of an offence which is not a crime in the state in which they resides; and the search or seizure could take place in a manner not authorised by national law.

The new Articles 6-9 on telephone tapping, including the bugging of all forms of telephones, not just satellite calls, are the most remarkable change from the earlier draft (see below). Article 12 of the revised Convention deals with witnesses' statements in video conferences. Article 12(5) makes clear that the witness will be obliged to appear. Article 12(6) on the procedure is a much expanded version of Article 6(4) and 6(5) in the 1996 drafts. Here there is no longer a woolly reference to the requested state guaranteeing the witness' fundamental rights, but there is no replacement covering the matter in more detail. It is not clear how these clauses will operate in practice. How can the guarantees for suspects' and witnesses' rights within the system of judicial protection of the requesting state be upheld, without substantial additional provisions providing for mechanisms by which the requesting state's disclosure rules will apply to the cross-border provision of evidence and by which the witness has access to legal advice concerning the requesting state's law?

Article 13 covers the transfer of a person to another Member State, which might be without consent (Article 13(6)). This leaves open the possibility that a person can be moved forcibly to another Member State, albeit temporarily, after procedural protections which might be lower than that provided for under extradition procedures. It is not clear how long the person concerned might be transferred for, with the risk that a remand prisoner might have their pending trial delayed as a result of the transfer; and the prisoner will in any case be forcibly separated from their families for the duration of the transfer. Article 14, provides for "spontaneous exchange of information". There is no reference to data protection rules. Finally, Article 15 provides for expedited procedural rules for requests between authorities. While it is made clear here that the Convention is not meant to apply to "pure" police or customs cooperation, at least for controlled deliveries (Article 15(6)), it can still cover requests emanating from or to police or customs authorities, as long as one side is handling such requests via the judicial authorities. There is a risk that such a requirement may simply be a formalist restraint covering what is de facto direct cooperation between police or customs authorities in both Member States.

It should be noted that this draft Convention, in Article 18.4, takes a further step down the road to undermine the scrutiny by national parliaments in the ratification of Conventions. The Dublin Convention stipulated that all EU member states had to complete ratification before it could come into force, the Amsterdam Treaty says Conventions can only come into force when a majority of member states (8) have adopted it - this draft Convention allows the first two member states to ratify it to put it into practice immediately.

The Convention and the surveillance of telecommunications

The implementation of the EU-FBI surveillance plan was introduced into the draft Convention on mutual assistance in criminal matters, in Articles 6-9, this year. The May 1997 draft says in an "explanatory comment" that the Presidency believes: "in view of the absence an explicit Treaty basis for the interception of telecommunications - proposes that the Convention under consideration should make provision for investigation of all types of telecommunications".

Article 6.2 says that an "order" from a competent authority of the "requesting Member State" can ask for either:

"the interception, recording and transcription of intercepted correspondence or for interception and direct transmission of intercepted correspondence to the requesting Member State for monitoring and for recording and transcription there."

In plain language the results of an interception are either sent ex-post by the "requested" member state after the event to the requesting member state or, if the member state asks the interception is transmitted, real time (as it is happening) to the "requesting" member state. The term "correspondence" is taken from Article 8 of the European Convention on Human Rights and taken to encompass "both conversations and fax messages etc." Article 6.3 covers the surveillance of mobile phones and messages in another member state or member states (or another state which is party to the agreement). Article 6.4 sets out that requests between member states should include: "as accurate a description as possible of the subject of the investigation.."; "the desired duration of the investigation"; and the "type of investigation" (as in Article 6.2 above).

Article 6.5 is intended to exclude, according to the explanatory comment, the use of information derived "between doctor and patient or client and lawyer and correspondence with religious advisers".

Articles 7 and 8 deal respectively with: "Investigation of terrestrial telecommunications" and "Investigation of satellite communications". Article 9 is currently blank to provide for additional provisions concerning third member state (in addition to the "requesting" and "requested" member states).

Article 7.2 says would allow the "requested" member state to refuse to execute the request "in view of the nature or non-seriousness of the offence or the personal status of the subject of the investigation" or if it considered the request was "unjustified given the circumstances of the case". Article 7.3 a & b say that the "requested" Member State "may" set conditions that i) prior to the transfer of the data it would "destroy.. those parts of the correspondence which.. cannot be meaningful in the context.." or ii) the "requesting" member state which receives the data "real time" would do the same. The first condition 7.3.a cannot be imposed where the "requesting" member state has asked for interception and transmission (real time). Each member state would operate according to its national law -which may of course be different.

Articles 7.3.c & d say that the "requested" and "requesting" member states shall:

"inform the holder of the network connection number and the subject of the investigation.. that the investigation has been carried out."

There is, of course, a catch to this provision: "in accordance with those authorities' national law". In the UK, for example, this would never happen (except perhaps where it had to be revealed in court).

Article 8 is almost exactly the same as Article 7 but the explanatory comments regarding satellite telecommunications shows the influence of the report of the High Level Group on Organised Crime. The request for "assistance" is to be made to the member state in which the "ground station" is located - the "ground station" could be located in member state A while the subject may be in member state B (see below for the significance of "ground stations"). The explanatory comment also says that "additional information on the aim of and reasons for the request" cannot be asked for by the "requested" member state when it is for a "real time" interception.

The background reports leading up Articles 6-9 are more revealing. A "preparatory meeting on interception" was held in the Hague on 25-26 November 1996. On 17 January the EU Presidency sent a report on the meeting to the Working Party on Mutual Assistance in Criminal Matters" entitled: "Does the interception of mobile satellite telecommunications require new forms of mutual assistance in criminal matters?" The report contains a series of definitions which expand on those given in the published version of the Council Resolution (Official Journal, 4.11.96). The first link are the "system providers", consortium that:

"provide the global network of mutually co-operating satellites. Up to now Iridium, Globalstar, Odyssey and ICO prepare a network, each servicing between 10 to 100 ground stations world-wide."

The second link is the "ground station", the "earthly, fixed equipment where a telecom signal of a satellite is received.. each ground station renders this services to a system provider for an area encompassing all the countries of the EU." The report says, as do previous ones, that the interception of mobile phone has to take place at the "ground station".

The report argues that "additional international legal instruments" are need because the 1959 Convention implies that the "requested" member state should check the data before it is transmitted "real time" to the "requesting" member state -whereas they want data to be sent immediately without any check under the laws of the "requested" member state.

In April the EU Presidency presented a report to the K4 Committee summarising the proposed changes to the new Convention. The report says that there is a need to "provide a legal basis for the cooperation between the Member States" on the interception of telecommunications and the "real time monitoring of satellite telecommunications".

The rights of the individual are referred to as covered by Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 guarantees the right to respect for private life and correspondence. The "problem" for EU policymakers is that:

"Traditionally persons located on the territory of a certain state, fall under its jurisdiction. Their freedoms.. are guaranteed under the law of that state. Likewise the infringements on this freedom should be allowed by the laws of that same state. The location of a target is therefore relevant. Exceptions of the principle of sovereignty can only be regulated by a Convention." (Hague meeting 25-26 November 1996)

These "freedoms" are, by way of this new Convention, being discussed away in the secret meetings of the EU and when the 15 governments have agreed its contents national parliaments have no powers to change or amend any of its provisions.

The April report says that in the near future:

"perhaps within a year. The 3 or 4 systems will be established by large multinational operators."

And:

"each system will have (only) one ground station in Europe. It is at this stage expected that ground stations will be established in France, Italy and perhaps Finland, the UK and Germany."

The significance of there only being 3 or 4 "ground stations" in the EU is that, under Article 7 and 8 of the new draft Convention, all requests for interception will go to the member states in which they are based in and be executed according to the national laws of that country.

Conclusion

It is clear from past experience that the Council's working groups frequently agree a large percentage of a measure before it is discussed by the K.4 Committee, never mind the Justice and Home Affairs Council. The mutual assistance Convention looks set to be a classic example.

The draft Convention abounds with clauses liable to have a substantial impact on individual rights, certainly by comparison with the subject-matter of "traditional" judicial cooperation in criminal matters, including the 1996 drafts of the same Convention.

This is a classic case where public debate is sorely needed, where peoples' rights and protections are negotiated away in secret EU meetings.

Sources: Draft report to the Council on the draft Convention on mutual legal assistance in criminal matters, Presidency to K4 Committee, 7350/97, Limite, JUSTPEN 31, 14.4.97; Interception of telecommunications systems outside national boundaries - Lawful interception of satellite personal communications systems, Presidency to Working Party on Mutual Assistance in Criminal Matters, 12290/1/96 REV 1, Limite, JUSTPEN 150, 17.1.97; Draft Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, 5978/96, 16.4.96; 9268/96, 15.7.96; 7945/97, 6.5.97; Explanatory report on the Convention on mutual legal assistance in criminal matters, including text of 1959, Council of Europe, 1969; Council of Europe press release no 341, 2.6.97.