NEW OPPORTUNITIES FOR MUTUAL ASSISTANCE IN CRIMINAL MATTERS OFFERED BY THE SECOND ADDITIONAL PROTOCOL TO THE CONVENTION 1959 ON MUTUAL LEGAL ASSISTANCE

                        Strasbourg, Special Session – PC-OC November 16^th, 2016)

                                                           INTRODUCTION

                                                    by Mr Eugenio Selvaggi (Italy)

This paper tends to offer participants to Special Session on MLA some possible ideas for discussions. However, discussions should not be limited to the points mentioned below.

Preliminary remark. A Jewish saying says: If you do not know where are you going to, at least be aware where do you come from.

So: where does the Second Protocol come from?

Changes in judicial co-operation, in particular in the last 20 years or so, due to: 

1. Individuals, goods and capitals do move very quickly and freely, much more than they did before. Also criminals move more frequently and freely than ever (prosecutors and law enforcement agencies have to stop at the borders); That is to be considered one of the many effects of globalization.

2.Many forms of criminality are transnational in character, and these are the most dangerous forms of criminality. Either criminal activities (drug, arms, trafficking in human beings, terrorism) have an impact over more than one country, or proceeds of crime is placed in countries that do not have effective measures related to judicial co-operation (including off shore countries).

3. Modus operandi of criminals has also changed due to new technologies (e.g. frauds via internet); that gives rise to the problem where the crime is committed, i.e. which jurisdiction is competent.

The present Special Session is a part of the Action Plan against TOC as approved. That is to say that both discussions and summaries of said discussions should be oriented as to give possible inputs for further action. To that extent it is of a particular significance that the present Session is dedicated to experts of international judicial co-operation who may bring their experience and on that basis check whether problems encountered may be solved by means of best practices or whether other type of action is needed, such as operating on drafting exercises, both on soft law or on binding instruments. 

Where does the Second Protocol come from? It reads from the website that “The Protocol 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 will therefore serve to improve and supplement the 1959 Convention and the 1978 Additional Protocol to it, in particular by broadening the range of situations in which mutual 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”.

It should be recalled that the drafting of such Protocol is to be seen in combination with the 2000 EU Convention on MLA; as a matter of fact they are almost similar. But the setting was (still is) quite different: in the EU the common space and mutual recognition make the difference.

But it is also true that the underlining perspective was (and still is) that international judicial co-operation could more effectively (or even should) be a matter of relations among judicial authorities rather than a matter among Governments: that would make co-operation more effective, streamlined and fast.

Past and ongoing initiatives carried out by PC-OC tend to simplify mechanisms of judicial co-operation, including channels of communications and gathering of evidence.

The present Session is devoted and focused on the issues which appear under the two workshops.

That, of course, does not exclude that also other issues be examined in the Session, including, i.a. MLA in relation to proceedings related to responsibility of legal entities or the problem of proportionality in (requesting and) granting co-operation. Also relations between judicial co-operation and police to police co-operation might be of interest for PC-OC, in particular in reference to the special investigation techniques (controlled deliveries, cross-border obs etc.).

As to Workshop 1 Eleni Loizidou has pointed out the main items under examination. I believe that issues related to spontaneous information and confidentiality will be discussed in depth; I also could envisage that it might also amount to the main issue of transfer of criminal proceedings.

As I said above, the legal setting in CoE and EU is not the same. However, because of the globalization and transnational character of crimes mentioned above, it is not unusual to have different jurisdictions acting at the same time and on same cases; it should therefore be borne in mind that some “mixt co-operation” might be envisaged (e.g. using JIT’s results even in jurisdictions that do not have yet that possibility provided for in their legal system).

In general: I see that both good will and imagination could play a role.

When requested for assistance competent authorities should look how to better cope with the needs of the requesting State.

On the other side, what was gathered, either as evidence or as performance requested (e.g. service of documents in a particular form or way) is to be used in the requesting State; hence, a certain grade of flexibility in the execution of a request is necessary from the side if the requested State; and even the concept of “execution” should be a matter for reflection. To that extent I will pick up the provocative phrase by Erik Verbert: the line between assisting and actually cooperating in the execution is very thin.

That is the issue (which I very much welcome)  that is proposed in the paper by Erik Verbert for Workshop 2, where also special measures of investigation and co-operation provided for by the Second Protocol will be examined.

Article 8 of Second Protocol is crucial, in my view. It could be looked at as the precedent for  mutual recognition and finally for the European Investigation Order (EIO) in EU.

In the context of the Action Plan on TOC, examination of issues related to special investigation techniques and new or special measures for international co-operation is crucial too.

Videoconference.

Cross-border investigation/proceedings.

Controlled deliveries and undercover operations.

Spontaneous information. This point should be expanded as to include the transfer of proceedings issue.

Of course the wide range of issues to be considered would ask for a Special Session of more than one day. That means that what we are called for is to start an exercise which is supposed to continue as an ordinary action of PC-OC.