The Second Additional Protocol to the Council of Europe Convention

on Mutual Legal Assistance in Criminal Matters.

Workshop 1: Exchange of Information - New Opportunities for co-operation

Discussion paper prepared by Ms Eleni Loizidou (Cyprus)

The 2^nd Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS N°182) which entered into force in 2004, is intended to improve states’ ability to react to cross-border crime in the light of political and social developments in Europe and technological developments throughout the world.  It serves to improve and supplement the 1959 Convention and the 1978 Additional Protocol, in particular by broadening the range of situations in which mutual legal assistance may be requested and making the provision of assistance easier, quicker and more flexible.  It also takes account of the need to protect individual rights in the processing of personal data.

PC-OC has decided to organise a special session on the Second Additional Protocol to examine whether the opportunities it provides for better cooperation are being exploited by member states and to discuss any problematic issues and solutions that could be found.

I propose that in this Workshop 1, entitled “Exchange of Information - New Opportunities for co-operation” we discuss:

(a)          whether and to what extent each relevant provision, as set out in summary below, has indeed provided new opportunities for better co-operation in exchanging information both as regards procedures and content

(b)          any difficulties encountered in the application of these provisions and

(c)          ways of solving any problems encountered

Art. 1(3) – Scope

This article extends the scope of the Convention to cover the whole field of “administrative criminal law”.

The purpose of para 3 is to bring under the same treaty, provisions on mutual assistance applicable to two types of national proceedings, namely (a) proceedings in respect of criminal offences  and (b) proceedings in respect of infringements (sometimes called regulatory offences) punishable under criminal/administrative law.  The rationale is that the same facts (eg severe pollution due to negligence, or traffic offences) are often the subject of criminal proceedings in one state and the subject of criminal/administrative proceedings in another State.  A prerequisite is that in the end it is legally possible to bring such proceedings before a court having jurisdiction in particular, but not necessarily exclusively, in criminal matters.

Art. 4 – Channels of Communication

This article rewords Art 15 of the Convention.  It establishes that as a general rule requests are in writing, channeled via the Ministries of Justice (always via Ministries of Justice in applications for temporary transfer of detained persons to the requesting state).  As a general rule requests may always be forwarded directly between judicial authorities whereas requests concerning “administrative/criminal offences” may be forwarded directly between administrative authorities or between administrative and judicial authorities.  It should be stressed that para 9 of this article opens the way to the use of telecommunications in the transmission of requests and other communication.  The Interpol channel is left open for urgent cases only.

Art. 11 – Spontaneous information

This article extends to mutual assistance in general what was until now only recognized in the limited field of money laundering, namely the possibility (but not an obligation) for Parties, without prior request, to forward to each other information about investigations or proceedings which might contribute to the common aim of responding to crime.

In accordance with paragraph 2, conditions may be attached to the use of information provided under this article, and paragraph 3 provides that, if that should be the case, the receiving Party is bound by those conditions.  In reality, the sending Party only binds the receiving Party to the extent that the receiving Party accepts the unsolicited information.  By accepting the information, it also accepts to be bound by the conditions attached to the transmission of the information.

Because some States might have difficulties in not accepting the information once it has been transmitted, for example where their national law puts a positive duty upon authorities who have access to such information, paragraph 4 opens the possibility for states to declare that information must not be transmitted without their prior consent should the sending State attach conditions on the use of such information.

Article 15 – Language of the procedural documents and judicial decisions to be served

Article 16 – Service by post

These articles replace the terms “writs and records” in the Convention, articles 7 and following, with the term “procedural documents” and “judicial decisions” without intending to depart from the scope of art. 7 but only to reflect the language used today in a large number of countries.  Art 15 provides that procedural documents and judicial decisions shall in all cases be transmitted in the language they were issued.  But if the issuing authority has reason to believe that the addressee understands only some other language, the most important passages of those papers should be accompanied by a translation into that language.  This provision conforms to the requirement of art. 6(3)(a) of ECHR that everyone charged with a criminal offence has the minimum right inter alia “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”.  Furthermore for the benefit of the authorities of the requested Party the papers shall be accompanied by a short summary of their contents into the language of that Party.

The objective of art. 16. in enabling serving of procedural documents and judicial decisions by post to persons who are in the territory of the other Party is to ensure that they can be sent and served as speedily as possible.

Art. 25 Confidentially

This article aims at recognizing that the requesting State is entitled to impose a duty of confidentiality on the requested State as to the fact and substance of the request except to the extent necessary to execute the request.

Art. 26 Data protection

This article applies only to personal data “transferred”.  Personal data is used within the meaning of art 2(a) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, of 1981. Personal data transferred may be used only for the purpose of proceedings to which the Convention or its Protocols apply or for preventing an immediate and serious threat to public security, unles prior consent is given by the other Party or the data subject.  A Party may refuse to transfer personal data if it is protected under its national legislation and the other Party is not bound by the 1981 Convention.  Parties may by Declaration to the Secretary General of the Council of Europe require that personal data transmitted may not be used unless their prior consent is granted.