EU: New Convention on mutual assistance in legal matters(feature)
01 July 1997
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 sco