7 June 2001
Draft second additional protocol to the European Convention on Mutual Assistance in Criminal Matters
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Michel Dreyfus-Schmidt, France, Socialist Group
The report welcomes the intention of the Committee of Ministers to strengthen mutual assistance between states in criminal matters.
While most provisions of the draft second additional protocol to the European Convention on Mutual Assistance in Criminal Matters are judged appropriate, two are found to pose a problem, and should be reconsidered by the Committee of Ministers.
The report further points out the extreme flexibility of the draft second additional protocol.
I. Draft opinion
1. The Assembly welcomes the intention of the Committee of Ministers to strengthen mutual assistance between states in criminal matters.
2. It notes that Chapter I of the draft second additional protocol to the European Convention on Mutual Assistance in Criminal Matters and its six articles make a number of clarifying changes to the convention and the first protocol, most of which are appropriate and only two of which pose a problem.
3. Firstly, Article 1 of the draft proposes a new wording for Article 1 of the convention; the new version of the third paragraph widens the scope of the convention to take in administrative decisions which may “give rise to proceedings before a court having jurisdiction in particular in criminal matters”.
4. This very unclear proposal must be rejected: if an appeal against an administrative decision is lodged with a criminal court, the convention will be applicable by virtue of mutual confidence in the judicial authorities.
5. Mutual assistance between administrative authorities would require a separate convention. Article 1, paragraph 3 should therefore be deleted and consequently also Article 26 (“Parties may at any time … define what authorities they will deem administrative authorities for the purposes of Article 1, paragraph 3, of the Convention”) as well as the words “administrative or”, which appear twice in Article 4 § 3.
6. Secondly, Article 5 of the draft contains a new wording for Article 20 of the convention: in addition to the convention’s two exceptions to the principle of not charging for mutual assistance (expenses incurred by the attendance of experts and expenses incurred by the transfer of a person in custody), there is now to be a third exception - “costs of a substantial or extraordinary nature”. This wording is, to say the least, doubly vague: what exactly constitutes “substantial” costs and what might “costs of an extraordinary nature” comprise?
7. The two concepts need clarifying even though the Council of Europe’s European Committee on Crime Problems is already responsible, under Article 28 of the second additional protocol, for monitoring implementation of the convention and its protocols” and for doing “whatever is necessary to facilitate a friendly settlement of any difficulty which may arise out of their application”. This Article 28 should, moreover, be incorporated into the convention itself.
8. Chapter II of the draft contains twenty-one new articles, several of which allow use, in mutual assistance between states in criminal matters, of modern procedures such as hearing by video conference (Article 9) or telephone conference (Article 10).
9. The other articles are concerned with states’ rights and obligations: postponed execution of requests (“the requested Party may postpone action on a request if such action would prejudice investigations, prosecutions or related proceedings”) (Article 7); spontaneous forwarding of information (Article 11); restitution (Article 12); temporary transfer of detained persons (Article 13); personal appearance of transferred sentenced persons (Article 14); language of procedural documents and judicial decisions to be served (Article 15); service by post (Article 16); cross-border observations (Article 17); controlled delivery (Article 18); covert investigations (Article 19); joint investigation teams (Article 20); criminal liability regarding officials and civil liability regarding officials (Articles 21 et 22); provisional measures (Article 23); confidentiality (Article 24) and data protection (Article 25).
10. Chapter III and its six articles deal with the signature of the second protocol, its entry into force, accessions, territorial application, reservations, the possibility of denouncing the protocol and notifications to be made by the Secretary General of the Council of Europe.
11. The draft second protocol is extremely flexible, allowing each party to decide not to accede to certain articles (provided it does not ask other parties to apply them), to partially withdraw reservations at any time and to denounce the protocol. For the time being, suffice it to point out that the flexibility provided for in the draft second protocol is exactly the same as that to be found in the convention itself and in its first protocol.
12. The Assembly would like to see all forms of mutual assistance become so effective as to be requirable of all states, in particular Council of Europe member states.
II. Explanatory memorandum by Mr Dreyfus-Schmidt, Rapporteur
1. On 22 January 2001, the Committee of Ministers requested an Assembly opinion on the draft second protocol to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 as amended by the first additional protocol of 17 March 1978.
2. The Assembly referred the request to the Committee on Legal Affairs and Human Rights, which appointed its Rapporteur.
3. The Committee of Experts on the Operation of European Conventions in the Penal Field (PC-OC) published the final revised version of this draft protocol on Friday 20 April 2001.
4. The Rapporteur received the draft protocol on Monday 23 April, at the beginning of the Parliamentary Assembly session; the committee wanted the report by the morning of Thursday 26 April.
5. The European Committee on Crime Problems (CDPC) was due to approve the draft protocol at its 50th plenary session, on 18-22 June 2001, before submitting it to the Committee of Ministers for adoption in September 2001.
6. The Rapporteur was given the 26 April deadline so that the Committee on Legal Affairs and Human Rights could submit its report to the Standing Committee meeting in Istanbul on 22 and 23 May.
7. It was obviously impossible to do a proper job in those circumstances.
8. On 26 April, at the Rapporteur’s suggestion, the committee pointed out that the committee of experts (PC-OC) had worked on the draft protocol for six years, that the Committee of Ministers should not confuse speed and haste, and that the Rapporteur and the committee needed reasonable time to thoroughly consider the thirty-four articles of the second protocol and compare them with the articles of the convention itself and those in the first additional protocol.
9. Moreover, if the Rapporteur and the committee had substantially disagreed with the draft, it would have been for the Parliamentary Assembly itself rather than the Standing Committee to deal with the matter.
10. As it is, the full Assembly will have to adopt a stance on the morning of Friday 29 June 2001.
11. To the exposition in the preliminary draft opinion must be added that there are 39 parties to the convention itself, including one non-member state, Israel, and 32 parties to the first additional protocol.
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 8938, Reference No. 2567 of 26 January 2001
Draft opinion unanimously adopted by the committee on 5 June 2001
Members of the committee: Mr Jansson (Chairperson), Mr Magnusson, Mr Frunda, Mrs Gülek (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andreoli, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bartumeu Cassany, Mr Bindig, Mr Bordas, Mr Brecj, Mr Bruce, Mr Bulavinov, Mr Clerfayt, Mr Contestabile, Mr Demetriou, Mr Dimas, Mr Enright, Mrs Err, Mr Evangelisti, Mr Floros, Mrs Frimansdóttir, Mr Fyodorov, Mr Guardans, Mr Gustafsson, Mrs Hadjiyeva, Mr Holovaty, Mr Irtemçelik, Mr Jaskiernia, Mr Jurgens, Mr Kelemen, Lord Kirkhill, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroupa, Mrs Krzyzanowska, Mr Lacão, Mr Lento, Ms Libane, Mr Lintner, Mr Lippelt, Mr Loutfi, Mrs Markovic-Dimova, Mr Marty, Mr McNamara, Mr Michel (alternate: Mr Hunault), Mr Moeller, Mrs Nabholz-Haidegger, Mr Olteanu, Mr Pavlov, Mr Pollo, Mrs Postoica, Mrs Pourtaud (alterntate: Mr Dreyfus-Schmidt), Mr Rodeghiero, Mrs Roudy, Mr Rusytamyan, Mr Shaklein, Mr Simonsen, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica (alternate: Mr Coifan), Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Wilkinson (alternate: Lord Rotherwick), Mrs Wohlwend, Mr Wojcik, Mrs Wurm
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the Committee: Mr Plate, Ms Coin, Ms Kleinsorge, Mr Cupina
1 See Doc 8938 rev.