The European Convention on Mutual Assistance in Criminal Matters is a 1959 Council of Europe mutual legal assistance treaty. It has been ratified by 50 states, including the 47 member states of the Council of Europe. This article defines the transmission channels to be used for mutual assistance. However, it was recognized that the requesting party, regardless of the channel chosen, may use the diplomatic channel at any time if it deems it necessary for specific reasons. The draft also provides for assistance through searches and seizures (Article 4) and secret investigations (Article 15 bis). Experience to date clearly shows that Council working parties often agree on a high percentage of a measure before it is examined by the K.4 Committee, not to mention the Justice and Home Affairs Council. The Mutual Assistance Convention seems to be a classic example. “This issue, which is related to the problem of extradition, was raised during the deliberations of the committees. The Committee is in principle in favour of the conclusion of a special convention on mutual legal assistance in criminal proceedings.

To date, no multilateral agreement has been developed on this subject. Several delegations stated that their countries had concluded bilateral agreements on that issue and that model agreements had also been developed. Similarly, the enforcement of criminal judgments is the subject of separate Council of Europe conventions on the transfer of prisoners, the transfer of proceedings and the international validity of criminal judgments. These conventions have fewer signatories than the Mutual Legal Assistance Convention and have not yet been the subject of attempts to supplement them with the EU`s “third pillar”. With regard to tax offences, it was agreed that the requested Party may, in certain circumstances, consider it desirable to provide assistance even if such a route would be unfavourable to the accused. (2) `cross-border use of undercover investigators (law enforcement officers)`: `undercover investigators` are `law enforcement officers as opposed to individuals` and: `In some Member States, undercover investigators may be used in police work without a specific legal basis. In other cases, national law contains more precise and direct provisions on this subject. As practice varies, “no rules” can be established, so the current unregulated bilateral cooperation will continue. The report argues that “additional international legal instruments” are needed because the 1959 Convention implies that the “requested” Member State should examine the data before they are transmitted “in real time” to the “requesting” Member State – while wishing that the data be transmitted immediately without verification under the law of the “requested” Member State. The 1959 Convention regulates both the taking of evidence and the appearance of natural persons. Witnesses in the requested State may be summoned to the proceedings in the requesting State. However, the summons is not binding on witnesses, and the requesting State may execute the summons against witnesses only if the witnesses enter the requesting State, receive another summons from the authorities, and then ignore it. The Convention also applies to persons detained in the requested State if the requesting State wishes them to testify.

The person has the right to object to the declaration in the requesting State. Paragraph 4 defines the channels for transmitting requests for assistance not referred to in paragraphs 1 and 3 above. These include requests for service and minutes of court decisions, as well as requests for pre-prosecution investigation by the Public Prosecutor`s Office. Direct channels are provided, but their use is optional. It should be noted that some States, including Austria, the Federal Republic of Germany and Norway, do not distinguish between “requests for mutual legal assistance” and “other requests for mutual legal assistance” such as “service of procedural documents” or “transmission of information from court records”. For these States, all these forms fall under the uniform concept of “mutual administrative assistance” and must be dealt with as a whole. The specific situation of these countries has therefore been taken into account, in particular, in the design of the provisions of the Convention. For example, the experts were led to consolidate the provisions on “channels” for the transmission of requests for assistance into a single article.

The implementation of the EU-FBI Surveillance Plan was included this year in the draft Convention on Mutual Assistance in Criminal Matters in Articles 6 to 9. The May 1997 draft states in an “explanatory remark” that the Presidency considers to be: “In the absence of an explicit contractual basis for the interception of telecommunications, it is proposed that this Convention provide for the study of all types of telecommunications”. Paragraph 2 provides that this Convention shall not affect clauses relating to certain aspects of mutual assistance in bilateral or multilateral agreements. The contracting parties are therefore obliged to respect these clauses. However, if such international conventions are incomplete in this respect, the corresponding provisions of this Convention shall apply mutatis mutandis. However, as a general rule, the provisions of these conventions, in so far as they concern certain aspects of mutual assistance, always take precedence over those of the Council of Europe with regard to those specific aspects. This proposal was not accepted by the Committee, which considered that such a clause was not necessary in the case of mutual administrative assistance under Council of Europe rules. The draft new convention of July 1996 contained 11 articles – the draft of May 1997 had 20. Under the Irish Presidency, it was decided to extend the scope of the new Convention well beyond mutual legal assistance in the area of criminal responsibility, as generally understood. At the EU Summit in Dublin in December 1996, it was decided to set up the `High Level Group on Organised Crime`, which reported to the EU Summit in Amsterdam in June 1997 with its `Action Plan to Combat Organised Crime`. The report of the Plan of Action contained several recommendations that had been decided to include in the draft Convention on Mutual Assistance in Criminal Matters and that had implications that went far beyond any understanding of “organized crime”. At the same time, the need to legitimize the interception of telecommunications has progressed.

According to Articles 1 and 3, mutual administrative assistance is not subject to the extradition or fault rules of both countries; However, Article 5, paragraph 1, allows the Parties concerned to require the application of one or both of these provisions to cases of search or seizure. In addition, in accordance with point (c), a Party may declare that it will authorize the execution of a request for mutual legal assistance for the purpose of search or seizure only if such execution is consistent with its law. The European Convention on Mutual Assistance was opened for signature by the member States of the Council of Europe by a decision of the Committee of Ministers meeting at deputy level at its 71st session (April 1959) on 20 April 1959. Only local authorities that have received a request for assistance directly are required to inform the applicant authority that the request has been forwarded to the competent local authority. 10. The 1990 Act allows the United Kingdom to assist and seek the assistance of foreign authorities in a number of criminal cases. It introduced new powers which: Paragraph 1 specifies what should be included in requests for assistance. In practice, the 1959 Convention operates through “requests for mutual legal assistance” from the judicial authorities of the requesting State (the “requesting State”) to the State holding the evidence (the “requested State”).

Requests for mutual legal assistance are sent through the Ministries of the Interior. Mutual legal assistance in criminal matters between EU countries (3) The report states that the draft Convention need not necessarily include the following elements: “cross-border surveillance and hot-border persecution”: already under Articles 40 and 41 of the 1990 Schengen Convention, with the exception of Ireland and the United Kingdom; `cross-border use of technical equipment mounted on vehicles or objects solely for the purpose of movement monitoring`: `used in all Member States` covered by `existing instruments of mutual legal assistance`; `cross-border use of technical equipment fitted to or mounted on vehicles to monitor communications taking place there`: most Member States do not provide for this in `national law`, in some `expressly prohibited`, but in Member States where this is permitted, through existing instruments`. “Joint teams”: The Working Group concluded that no provision was necessary in the draft Convention since it was already covered by the 1959 Council of Europe Convention and Article 47 of the 1990 Schengen Convention. The new draft therefore stipulates in Article 10 that “controlled deliveries” should be allowed “in the context of criminal investigations into extraditable offences” – this formula of “extraditable offences” allows the contract to go beyond drugs. Only Portugal has a reservation regarding this extension (see Statewatch, vol. 7 No. 2 for the broad definition of the Convention on Extradition). Article 4 on searches and seizures would delete the reservations made by member States to Article 5 of the 1959 Council of Europe Convention. Without such reservations, immovable property could be searched or confiscated, even if the owner is charged with a crime that does not constitute a criminal offence in the State in which he resides; and the search or seizure could be carried out in a manner not permitted by national law. New issues were put on the table for the Working Group on Mutual Legal Assistance in Criminal Matters: controlled supplies, cross-border use of undercover investigators, cross-border surveillance and hot prosecutions, cross-border interception of vehicles or surveillance of vehicle traffic, cross-border use of private informants or undercover private investigators, joint teams, mutual assistance on the Internet and monitoring of the Satellite communications were discussed.