Select Committee on European Communities Fourteenth Report


APPENDIX 3 (Articles 1 - 10)

CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K 3 OF THE TREATY ON EUROPEAN UNION, ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE MEMBER STATES OF THE EUROPEAN UNION

  THE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union,

  REFERRING to the Council Act of

  DESIRING to improve judicial co-operation in criminal matters between the Member States of the Union;

  POINTING OUT that the Member States have a common interest in ensuring that mutual assistance between the Member States is provided in a fast and efficient manner compatible with the basic principles of their national law, including the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950;

  EXPRESSING their confidence in the structure and functioning of their legal systems and in the ability of all Member States to guarantee a fair trial;

  TAKING INTO ACCOUNT the importance of concluding a Convention between the Member States of the European Union to supplement the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and other Conventions in force in this area;

  CONSIDERING that the provisions of those Conventions remain applicable for all matters not covered by this Convention,

HAVE AGREED ON THE FOLLOWING PROVISIONS

Article 1

GENERAL PROVISIONS

  1. The purpose of this Convention is to supplement the provisions and facilitate the application between the Member States of the European Union, of:

       -    the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, hereinafter referred to as the "European Mutual Assistance Convention";

       -    the Additional Protocol of 17 March 1978 to the European Mutual Assistance Convention;

       -    the Convention of 19 June 1990 applying the Schengen Agreement of 14 June 1985 on the Gradual Abolition of Checks at their Common Borders, in the context of relations between the Member States party to that Convention; and

       -    Chapter 2 of the Treaty on Extradition and Mutual Assistance in Criminal Matters between the Kingdom of Belgium, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands of 27 June 1962, as amended by the Protocol of 11 May 1974, hereinafter referred to as the "Benelux Treaty", in the context of relations between the Member States of the Benelux Economic Union.

  2. Paragraph 1 shall not affect the application of more favourable provisions in bilateral or multilateral agreements between Member States or, as provided for in Article 26(4) of the 1959 Convention, arrangements in the field of mutual assistance in criminal matters agreed on the basis of uniform legislation or of a special system providing for the reciprocal application of measures of mutual assistance in their respective territories.

Article 2

PROCEDURES IN CONNECTION WITH WHICH ASSISTANCE IS TO BE AFFORDED

  1. Mutual assistance shall also be afforded in proceedings brought by the administrative authorities in respect of offences which are punishable under the national law of the requesting or the requested Member State, or both, by virtue of being infringements of the rules of law, where the decision may give rise to proceedings before a criminal court.

  2. Mutual assistance shall also be afforded in connection with criminal proceedings and procedures as referred to in paragraph 1 which relate to offences or infringements for which a legal person may be held liable in the requesting Member State.

Article 3

COMPLIANCE WITH THE FORMALITIES AND PROCEDURES INDICATED BY THE MEMBER STATE

  1. Where mutual assistance is afforded and provided that such formalities and procedures are not contrary to the fundamental principles of criminal procedure in the requested Member State, the Member States shall undertake to comply, unless otherwise provided in this Convention, for purposes of executing letters rogatory, with formalities and procedures expressly indicated by the requesting Member State. The requested Member State will execute the request for assistance as soon as possible and shall undertake in this connection to meet any deadlines set by the requesting Member State.

  2. Where the request cannot, or cannot fully, be executed in accordance with the requirements or within any deadlines set by the requesting Member State, the authorities of the requested Member State shall duly and promptly inform the authorities of the requesting Member State and indicate the conditions under which it might be possible to execute the request and the likely period required for execution. The authorities of the requesting and the requested Member States may subsequently agree on further action to be taken concerning the request, where necessary making such action subject to the fulfilment of those conditions.

Article 4

SEARCHES AND SEIZURE

Article 5

RESTITUTION

  1. At the request of the requesting Member State and without prejudice to the rights of bona fide third parties, the requested Member State may place articles obtained by criminal means at the disposal of the requesting State with a view to their return to their rightful owners.

  2. In applying Articles 3 and 6 of the European Mutual Assistance Convention and Articles 24(2) and 29 of the Benelux Treaty, the requested Member State shall waive the return of articles supplied to the requesting Member State if the restitution of such articles to the rightful owner may be facilitated thereby. The rights of bona fide third parties shall not be affected.

  3. In the event of any such waiver as referred to in paragraph 2, the requested Member State shall exercise no security right or other right of recourse under tax or customs legislation in respect of surrendered articles, other than those owed by the rightful owner.

Article 6

INVESTIGATION OF TELECOMMUNICATIONS

  1. Requests to investigate correspondence not intended for the public by means of the telecommunications infrastructure or a telecommunications system used to provide services to the public shall at all times be based on an order to that effect from the competent authority under the national law of the requesting Member State.

  2. Depending on the content of the order from the competent authority of the requesting Member State, requests as referred to in paragraph 1 shall be either for 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.

  3. Requests as referred to in paragraph 1 may be made where the subject of the investigation is:

    (a)    located in another Member State, using fixed or mobile terrestrial telecommunications infrastructure there, and his correspondence can only be intercepted in that Member State;

    (b)   located in the requesting Member State, using satellite telecommunications infrastructure there, and his correspondence can only be intercepted in another Member State;

    (c)   located in another Member State, using satellite telecommunications infrastructure there and his correspondence can only be intercepted in a third Member State.

  4. Requests as referred to in this Article shall encompass, in addition to the data given in Article 14 of the European Mutual Assistance Convention and Article 37 of the Benelux Treaty:

    (a)   the existence of an order to investigate telecommunications;

    (b)   as accurate a description as possible of the subject of the investigation or the network connection number;

    (c)   the desired duration of the investigation;

    (d)   the type of investigation to be carried out, as referred to in paragraph 2;

    (e)   the technical data required for the request to be executed.

  5. Where intercepted correspondence includes information the content of which a person could refuse to divulge in accordance with the national law of the requesting Member State if called upon as a witness to do so, no use shall be made of such information, which shall be destroyed.

Article 7

INVESTIGATION OF TERRESTRIAL TELECOMMUNICATIONS

  1. Requests to investigate telecommunications as referred to in Article 6(3)(a) shall be submitted to the competent authority of the Member State in which the subject of the investigation is located and shall state the aim of and reason for the request.

  2. The requested Member State shall refuse to execute the request if the investigation is, under the law of that Member State:

    (a)   inadmissible in view of the nature or non-seriousness of the offence or the personal status of the subject of investigation, or

    (b)   unjustified given the circumstances of the case.

  3. The requested Member State may, depending on the content of the request, make execution thereof dependent upon one or more of the following conditions:

    (a)   that, prior to the transfer of the intercepted, recorded and transcribed correspondence to the requesting Member State, the competent authorities of the requested Member State destroy, in accordance with their national law, those parts of the correspondence which, in the light of the aim of and reason for the request, cannot be meaningful in the context of the criminal investigation for which the request has been submitted;

    (b)   that, after the transfer of the intercepted, recorded and transcribed correspondence or directly transmitted intercepted correspondence to the requesting Member State, the competent authorities of that Member State destroy, in accordance with their national law, those parts of the correspondence which, in the light of the aim of and reason for the request, are not meaningful in the context of the criminal investigation for which the request has been submitted;

    (c)   that, after completion of the investigation of telecommunications, the competent authorities of the requested Member State inform the holder of the network connection number and the subject of the investigation, in accordance with those authorities' national law and having due regard to the interests of the criminal investigation for which the request has been submitted, that the investigation of telecommunications has been carried out;

    (d)   that, after completion of the investigation of telecommunications, the competent authorities of the requesting Member State inform the holder of the network connection number and the subject of the investigation, in accordance with those authorities' national law, that the investigation of telecommunications has been carried out;

    (e)   that evidence contained in intercepted, recorded and transcribed correspondence or directly transmitted intercepted correspondence may not be used in the requesting Member State for purposes other than those forming the basis of the request for assistance.

Article 8

INVESTIGATION OF SATELLITE TELECOMMUNICATIONS

  1. Requests in the cases referred to in Article 6(3)(b) shall be referred to the competent authority of the Member State in the territory of which correspondence may be intercepted.

  2. If the request includes intercepting and recording correspondence, the aim of and reasons for the request shall also be stated.

  3. The requested Member State shall refuse a request to intercept and communicate the intercepted correspondence direct to the requesting State if there is no or insufficient evidence of the existence of an order to the effect from the competent authority of the requesting Member State.

  4. The requested Member State shall refuse to execute a request to intercept and record intercepted correspondence if, under its national law, the investigation is:

    (a)   inadmissible in view of the nature and non-seriousness of the punishable offence or the personal status of the subject of investigation; or

    (b)   unjustified given the circumstances of the case.

  5. The requested Member State may make execution of the request to intercept and record intercepted correspondence dependent upon one or more of the following conditions:

    (a)   that, prior to the transfer of the intercepted and recorded correspondence to the requesting Member State, the competent authorities of the requested Member State destroy, in accordance with their national law, those parts of the correspondence which , in the light of the aim of and reasons for the request, cannot be meaningful in the context of the criminal investigation for which the request was made;

    (b)   that, after the transfer of the intercepted and recorded correspondence to the requesting Member State, the competent authorities of the requested Member State destroy, in accordance with their national law, those parts of the correspondence which, in the light of the aim of and reasons for the request, cannot be meaningful in the context of the criminal investigation for which the request was made;

    (c)   that, after completion of the investigation of telecommunications, the competent authorities of the requested Member State inform the holder of the networking number and the subject of the investigation, in accordance with their national law and in the light of the importance of the criminal investigation for which the request was made, that the said investigation has been carried out;

    (d)   that, after completion of the investigation of telecommunications, the competent authorities of the requesting Member State inform the holder of the networking number and the subject of the investigation, in accordance with their national law, that the said investigation has been carried out;

    (e)   that evidence contained in intercepted and recorded correspondence may not be used in the requesting Member State for purposes other than those forming the basis of the request for assistance.

Article 10

CONTROLLED DELIVERIES

  1. Each Member State shall undertake to ensure that, at the request of another Member State, controlled deliveries may be permitted on its territory in the framework of criminal investigations into extraditable offences.

  2. The decision to carry out controlled deliveries shall be taken in each individual case by the competent authorities of the requested Member State, with due regard for the national law of that State.

  3. Controlled deliveries shall take place in accordance with the procedures of the requested Member State. Competence to act and to direct operations shall lie with the competent authorities of that Member State.


 
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