The Second Additional Protocol to the European Convention

on Mutual Assistance in Criminal Matters

Workshop 2 : Gathering of evidence

(Methods of gathering and admissibility of evidence in the requesting state; e.g. Art 9; 10; 12; 13; 14; 17; 18; 19; 20; 23)

Discussion paper prepared by Mr Erik Verbert (Belgium)

The indicated articles of CETS n° 182 concern: Articles 9 (Hearing by video conference) ; 10 (Hearing by telephone conference) ; 12 (Restitution) ; 13 (Temporary transfer of detained persons to the requested Party) ; 14 (Personal appearance of transferred sentenced persons) ; 17 (Cross-border observations) ; 18 (Controlled delivery) ; 19 (Covert investigations) ; 20 (Joint Investigation Teams) and 23 (Protection of witnesses).

Since it will not be possible to discuss the legal issues, practises and problems that regard all of the listed articles, I would like to focus on one key article – which is actually not in the indicative list, but is essential in the light of the central issue of ‘in)admissibility of evidence obtained abroad. This central matter can be combined with each and one of the specific types of MLA (cross border observation for example) under articles 12-23 or more advanced ways to execute MLA-requests (via a video conference for example) under articles 9-12. 

I would focus on the application of CETS n° 182 as a “traditional” instruments for MLA, thus excluding discussions on the application of Joint Investigation Teams (JITs) (articles 20-22). A JIT is an alternative for MLA, rather than a - new(er) - form or type of MLA. The preparation of a JIT and its follow-up, insofar a JIT-contract was indeed concluded, is always or at least nearly always a EUROJUST-matter anyway. 

Perhaps the most striking feature of the Second Additional Protocol to the 1959 European Mutual Legal Assistance Convention (CETS n° 030) is contained in its article 8[1]. 

“Article 8 – Procedure

Notwithstanding the provisions of Article 3 of the Convention, where requests specify formalities or procedures which are necessary under the law of the requesting Party, even if unfamiliar to the requested Party, the latter shall comply with such requests to the extent that the action sought is not contrary to fundamental principles of its law, unless otherwise provided for in this Protocol.”

First of all, the article’s title is simply “Procedure”. While all the instruments, and I mean not just those of the Council of Europe, hardly ever or rather essentially never regulate the procedures by which the assistance, whether it is extradition, mutual legal assistance or any other form of international cooperation in criminal matters, article 8 CETS n° 182 explicitly refers to the domestic proceedings that may or even should apply when MLA is being provided by the requested State.

As a “standing” rule of international cooperation law, the procedures or the less regulated proceedings applied by and mutatis mutandis in the requested State are those ‘of’ the requested State. The requesting State has no say and even less influence over the ways ‘its’ request is being executed by / in the requested State. ‘Locus regit actus’ is the common rule in international cooperation in criminal matters. For that reason, the conventions and treaties remain at arm’s length from any sort of regulation of the procedures and proceedings that are followed in order to execute a request, even when those procedures and proceedings have a direct impact on the way a requested State applies the convention or treaty, i.e. respects its basic obligation to cooperate.

Article 8, mirroring article 4.1. of the 29 May 2000 EU MLA-Convention[2], is somewhat of a Copernican Revolution, since it enables the requesting State to have its own procedural requirements been taking into account by / in the requested State, even if those requirements are incompatible with – the term ‘unfamiliar (to)’ is used - the law of the requested State.  The limit of this, perhaps in practice somewhat soft obligation to accommodate foreign procedural rules when executing a foreign MLA-request, is that they may not be “contrary to the fundamental principles” of the criminal procedure law of the requested State.

At face value, the article states the obvious, by that I mean that it – finally, 44 years after the MLA Mother Convention – provides for a conventional legal basis for probably the key element that should assure that MLA-requests are not just executed, but that they are executed in a way that avoids admissibility issues in the (former) requesting State. A simple solution to a complicated matter, plain and simple. Or not?

The question arises if article 8 indeed manages to avoid admissibility issues in the requesting state. A central question regards the parties’ experiences, good or bad, applying article 8, and esp. eventual outcomes as regards (in)admissibility issues. Perhaps the central question can be reformulated as follows: to what extent are the parties to CETS n° 182 prepared to accept and apply ‘unfamiliar’ procedural requirements from the requesting Party ? The question can be supplemented by the question whether the first question would be answered differently if the MLA-request may or will have an impact on an ongoing investigation in the requested Party ? 

In order to provide some further and concrete guidance: a classic admissibility matter is the questioning of suspects or potential suspects under oath (or affirmation). A concrete case[3]:

-          State A requests State B to interview Mr. T. Mr. T. is suspected to have played a role in a murder case. At the time the interview is requested, the ‘evidence’ against Mr. T. is to say the least rather weak, yet there are indications – esp. coming from trustworthy informants – that merit further investigation, hence the request. State B., not informed about specific procedural requirements in State A, executes the request like any other foreign request, i.e. in accordance with its own law. The law of state B. prescribes that (potential) suspects have to be interviewed – for judicial purposes – under oath. Some time, perhaps even years later, the report of the interview must be kept out of the case file since under State A’s procedural law, a suspect cannot be interviewed under oath, on the contrary: a suspect is free to lie, the oath would deprive the suspect of his / her right not to self-incriminate.

-          Let’s suppose for a moment that State A did indicate from the onset, relying on article 8, to interview Mr. T. not under oath. Would state B. refuse to do so, considering that such an interview is contrary to the fundamental principles of its own law? Would such a refusal be valid even if the matter has no ties whatsoever with a domestic case in State B ?

-          It is usual practice that the assisting police officers of the requesting State make a report of their assistance offered in the requested State. If this report contains the admissions made by the suspect that are made contrary either the law of the requesting State or the law of the requested State (for example during , introduced as evidence in the case: what is the status of such a police report ?

In more complex scenario, equally complex admissibility issues may rise. State A requests State B to allow a ‘Bill C.’ to operate as an undercover agent in State B. The investigation is about international drug trafficking.

The request implies that the undercover agent is actually a cooperating suspect and not a professional undercover agent. Supposing that State B only allows undercover operations to be performed by police officers and not by (be it criminal) civilians, should the request be blatantly refused ? What is the matter is of such importance that it may lead to significant results in State B, results that cannot be obtained without executing the request - in one way of the other ?

Article 8 cannot be seen as a stand-alone article: a long established practice is that in many cases, police officers and / or prosecutors and / or investigating judges assist in the execution of an MLA-request – cf. article 2 CETS n° 182, amending article 4 CETS n° 030. The reason for such assistance is fairly self-evident: the requested State is normally not familiar at all with the foreign investigation. The timely, full and effective execution of the request can sometimes only be assured if police officers and / or magistrates from the requesting state are present during the execution. This assistance is sometimes even essential in order to assure that the requested State’s officers apply the necessary procedures and / or formalities per article 8 properly. The question is, to what extent requested States would allow such assistance given that in practice, the line between assisting and actually cooperating in the execution is very thin ?