Final Report on the first evaluation exercise - mutual legal assistance in criminal matters(1)

(2001/C 216/02)

CONTENTS

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SUMMARY

The evaluation procedure has demonstrated that the mechanism itself has proved its usefulness and that in the course of the process significant improvements have been made, both at practical and at legislative level. The authorities of the Member States cooperated fully and positively with the evaluation teams. The European Union should continue to employ the mutual evaluation mechanism and ensure that full use is made of it.

From the evaluations two quantitative findings emerged:

- the flow of mutual assistance is increasing. All the Member States have reported this, and some have had to obtain additional resources or find ways of dealing with that aspect of mutual assistance;

- most of the mutual assistance flow concerns cooperation between the Member States of the European Union (estimated at between 75 % and 95 %).

The evaluation exercise made it clear that, while mutual assistance is not without its faults, the criticism habitually levelled at it that it is slow, inefficient and powerless is excessive; in general mutual assistance does not operate as badly as it is reputed to do. In the field of drugs or serious offences under ordinary criminal law, a great majority of the practitioners interviewed consider that mutual assistance operates efficiently and to the satisfaction of practitioners. Moreover, the persons involved in mutual legal assistance are devoted and conscientious practitioners who seek to assist foreign authorities in the best manner possible, sometimes under difficult material conditions. This finding, while not invalidating the criticism of the current operation of mutual assistance, does moderate it.

Mutual assistance can, however, be improved in many areas:

- staff and material and budgetary resources are insufficient to meet requirements and should be more in line with the needs of today;

- insufficient language knowledge remains an obstacle to improving mutual assistance and to direct communication between judicial authorities; there is considerable need for training in this area;

- there is a considerable burden of outdated practice and pointless red tape and hierarchical complexity; the result is to slow down the transmission and execution of international requests; the solution would be to simplify the channels and streamline the procedures;

- it is imperative to train specialists in mutual assistance;

- a legal complexity arises from the accumulation of international and national rules to be applied in the same case; basic training in this matter for those involved in mutual legal assistance is essential;

- there are major discrepancies between the Member States as to the application of Conventions; a better policy of guidelines (whatever the method of establishing them and whatever their legal status) should be put in place;

- requests for mutual assistance based on offences which may be categorised as tax offences give rise to problems; it is desirable to remedy this for the future;

- conventions sometimes take longer to ratify than is justified on purely technical grounds; speedier ratifications are indispensable;

- double criminality remains a potential ground for rejecting requests when the measure requested is coercive; the European Union should continue to discuss this matter;

- the exercise of rights of appeal should not be able to be used for delaying purposes;

- use of good practice should be implemented carefully in the Member States and should be monitored by the European Judicial Network;

- statutes of limitation under the law of the requested State should no longer be an obstacle to the execution of requests;

and, finally, as a general lesson to be drawn,

- the high concentration of mutual assistance within the European Union itself should encourage further use of a specific approach to mutual assistance between the Member States in the area of freedom, security and justice, in particular as it is likely that this aspect might become of growing importance with the enlargement of the European Union.

I. INTRODUCTION

Pursuant to Article 8(5) and Article 10 of the Joint Action of 5 December 1997(2), establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organised crime, this report endeavours to draw conclusions relating to the first evaluation exercise, with a view to enabling the Council to take the decisions incumbent upon it.

The first evaluation exercise addressed delays in the operation of the system for mutual legal assistance and urgent requests for the seizure of assets.

This report is based on the individual evaluation reports, the intermediate reports and discussions of those reports in the Multidisciplinary Group. Its purpose is not to reproduce the individual recommendations made to the Member States. It endeavours to highlight the main questions identified in the course of the exercise, identify good practice, analyse it and, where appropriate, propose action in the form of recommendations either to the European Union or to the Member States themselves depending on the case. These recommendations are of course not all of the same importance and one should therefore take this into account when examining the present report.

II. GENERAL OBSERVATIONS

The Member States have received individual recommendations in each evaluation but the overall results of the evaluation of Member States' systems of mutual assistance in criminal matters are also of major interest to the European Union. They make it possible in particular to assess whether the difficulties recorded, and indeed the often severe criticisms levelled in recent years at the slowness and inefficiency of this form of cooperation, are well-founded and, if so, to what extent.

Over the past five to eight years the question of mutual assistance has been discussed intensively within the European Union and its Member States. Comments and criticisms have been voiced from different sources and vary depending on whether they are from practitioners or from academics. The matter has also been given increased attention in national parliaments and in the European Parliament.

In the Action Plan of 28 April 1997 to combat organised crime, adopted by the European Council at Amsterdam, starting from the assertion that judicial cooperation needs to be brought up to a comparable level to police cooperation, the High Level Group advocated research and solutions to facilitate mutual assistance, setting up a European Judicial Network promoting direct communication between judicial authorities and improving forms of cooperation which would help to combat organised crime. The Action Plan proposed also the setting up of the mutual evaluation mechanism on which this report is based.

The first finding to be drawn from the 15 evaluations is that, while mutual assistance does not have the level of perfection and reliability expected by many practitioners, it does not operate as badly as some claim. In the field of drugs or serious offences under ordinary criminal law, a majority of the practitioners interviewed consider that mutual assistance operates more efficiently than it is reputed to do. For example, the evaluations made it clear that the alleged lack of direct communication between one judicial authority and another does not correspond to the facts. Even if the central authorities were in almost every instance unable to provide statistics for the flow of mutual assistance under Article 53 of the 1990 Convention applying the 1985 Schengen Agreement (hereinafter called the "1990 Schengen Convention") the evaluations indicate that direct communication between judicial authorities is current practice, and one that is on the increase. That finding, while not invalidating all of the criticism of the current operation of mutual assistance, does moderate it. However, in the interests of accuracy, it must be said that, while mutual assistance does not operate as poorly as it is reputed to do, there are still areas of difficulty, for instance tax questions and certain types of economic crime.

Secondly, the evaluations have demonstrated that even if the statistics are not totally reliable, most requests for mutual assistance are between Member States of the European Union, the proportion ranging between 75 % and 95 %. Moreover, almost all of the remaining requests concern candidate States, which will accede to the Union sooner or later. The conclusion to be drawn is that in this area there is a dimension specific to the Union, in its present or future configuration. This fact in its turn leads to the conclusion that it is worthwhile for the Union to have its own instruments and continue to develop practices specific to the area of freedom, security and justice. The move has already begun with the Convention on mutual assistance in criminal matters from 29 May 2000 between the Member States of the European Union (hereinafter called the "2000 Convention"), which is complementary to the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters (hereinafter called the "1959 European Convention"). Work is also at present being carried out, based on a French initiative, in the Working Party on Cooperation in Criminal Matters on elaborating another instrument in the field, focusing on economic crime. This approach deserves to be pursued and taken further.

The third finding relates to the implementation of the instruments. The experts noted that, 40 years after adoption, the reference Convention - the 1959 European Convention - is not applied in a uniform manner either between the Member States or within a Member State. There is thus a real problem of consistency, which needs to be resolved.

A fourth finding concerns the added complexity surrounding legal problems as a result of outdated practices, administrative routines and bureaucratic hierarchy. It is obvious that improved mutual assistance means updating operational methods inherited from the past and making action more flexible.

The fifth general finding relates to language usage. The fact that the vast majority of judicial authorities are unable to express themselves correctly and in legal terms in a language other than their own greatly limits the scope of the provisions on direct communications. Only increased language training sustained over time will remove that obstacle.

The sixth, and last, finding concerns flows of mutual assistance: they are on the increase. A general increase has been observed by all the Member States but the proportion varies, depending on the State and the circumstances, there is one certainty: the upward trend in requests for mutual legal assistance.

III. SPECIFIC OBSERVATIONS

(a) Ratification of international conventions

As mentioned in the questionnaire which was the basis for the evaluation exercise, the evaluation concerns mutual assistance between Member States within the framework of the 1959 European Convention and its 1978 Protocol, the 1962 Benelux Treaty on Extradition and Mutual Assistance in Criminal Matters and its 1974 Protocol, the 1990 Schengen Convention and other relevant treaties or arrangements, such as the 1990 Convention on Laundering, Search, Seizure and the Confiscation of the Proceeds from Crime (hereinafter called the "1990 Money Laundering Convention").

While all the Member States of the European Union have ratified the 1959 European Convention, the 1978 Protocol (on facilitating mutual assistance in fiscal matters) is not yet ratified by one Member State and was ratified by another only in 2000. The 1990 Money Laundering Convention has been ratified by 14 of the Member States of the Union. Apart from those specific cases, the experts noted that it nearly always took a long time (often more than five years and sometimes up to twenty years) to ratify conventions.

The European Union has already stated its concern regarding the time taken to ratify instruments. It did so in the Action Plan of 28 April 1997 to combat organised crime (recommendations 13 and 14); the target date set then was the end of 1998. It did so again in recommendation 27 of the document on "The prevention and control of organised crime: a European Union strategy for the beginning of the new millennium"(3), setting a target date for the end of 2001 and priority 1. The 2000 Convention invites the Member States to begin the procedure of ratification of the Convention before 1 January 2001.

The evaluations demonstrated how important it is that there be no gaps in the area of mutual assistance conventions since any failure to ratify may prevent or dilute mutual assistance.

Recommendation 1: The Council urges the Member States to devote particular attention to ratifying, in compliance with their constitutional requirements international instruments which facilitate mutual assistance in criminal matters within a reasonable period. Special attention should be given to an early ratification of the 2000 Convention. The Presidency of the Council should write to its counterparts, asking them to report to the Council before 1 October 2001 on their reasons for not ratifying conventions. Those reports could form the basis for discussion in the Council under the Belgian Presidency.

(b) Statutes of limitation

The evaluations revealed that in some Member States the judicial authorities did not execute a request where it appeared that the offences on the basis of which it was made would be covered by the statutes of limitation under its own law. In a 1999 law on international judicial cooperation, one Member State reaffirmed the principle that cooperation is not possible if criminal proceedings are barred by the statutes of limitation except where a convention expressly provides to the contrary.

It is not an explicit ground for refusal in the 1959 European Convention that the offence giving rise to the request is barred by statutes of limitations in the requested State. This is, however, the case in the 1957 European Convention on Extradition. In that area the Member States have taken one step further. Pursuant to the 1996 Convention on Extradition between the Member States of the European Union, extradition may not be refused on the ground that the prosecution would be statute-barred according to the law of the requested Member State. The raison d'être to keep this ground for refusal regarding mutual legal assistance should be questioned.

Recommendation 2: The Council invites the Member States to review their national legislation and practises with a view to ensuring that a request for mutual legal assistance from another Member State is not refused solely on the ground that the offence giving rise to the request is barred by statutes of limitations in the requested Member State.

(c) Grounds for refusal

The evaluations revealed that, of the four grounds of refusal listed in Article 2(b) of the 1959 European Convention, three (sovereignty, security, ordre public) are only rarely invoked to refuse a request from another Member State of the Union. Essential interests are a different matter. At least one Member State referred to its essential interests as grounds for making it compulsory for requests relating to a search or seizure in a bank to be checked by the Ministry of Justice before action is taken, although it appears that this practice has been changed through recent legislation as a result of the evaluations.

In the current state of development of international instruments, an assessment made by the executive on the basis of Article 2(b) is a unilateral decision with an undisputably political dimension since it relates to protecting a State's sovereignty. The evaluations did, however, demonstrate that mutual assistance is now developing in an increasingly judicial framework, as evidenced by the direct communication between judicial authorities in the Member States provided for in the 1990 Schengen Convention and in the 2000 Convention, and as promoted and facilitated by the European Judicial Network. That ambivalence between political assessment and examination by the judicial authorities has been analysed in several evaluations as a cause of delay in execution and a source of confusion regarding allocation of responsibilities between ministries and judicial authorities.

The draft instrument that at present is being considered in the Working Party on Cooperation in Criminal Matters includes a proposal to limit the application of Article 2(b) of the 1959 European Convention.

The Council notes that work is being carried out in the Working Party on Cooperation in Criminal Matters on grounds for refusal. In that context, proposals have been made to limit between the Member States the application of the grounds for refusal in Article 2(b) of the 1959 European Convention.

(d) Tracing of bank accounts

An effective means of combating crime, the restraint and, where appropriate, confiscation of assets and property presuppose their prior identification and tracing. It emerged in the course of the evaluations that a number of Member States would agree to a request for mutual assistance involving interim protective and coercive measures in respect of property and assets only if the latter were completely identified. But this is precisely the stumbling block in combating crime as frequently the identification is incomplete. It even happens that the property is quite simply in the name of a third party. The evaluators commented that Member States offered only limited means of tracing the least well identified assets, and some refused to undertake investigations, which they considered were too broad in scope and which they described as "fishing expeditions". This mainly applies to bank accounts. The experts noted that practitioners in some Member States thought that such requests could be executed efficiently if the requested Member State had a centralised register of all bank accounts rather than having to request all bank institutions in the country. On the other hand it must be recognised that certain Member States who do not have a centralised register of all bank accounts could have difficulties to provide such information.

Those operating in this area know that it is not easy to identify, detect and designate a bank account opened in another Member State, but it happens fairly frequently that they know of its existence without having sufficiently precise information to pinpoint the bank where it was opened.

The draft instrument that at present is being considered in the Working Party on Cooperation in Criminal Matters includes a proposal relating to the provision upon request by another Member State of a list of the bank accounts of a natural or legal person.

Recommendation 3: The Council notes with satisfaction that work is being carried out in the Working Party on Cooperation in Criminal Matters on an expedited procedure for tracing bank accounts of natural or legal persons and requests the Working Party to seek satisfactory solutions to this matter as quickly as possible.

(e) Tax offences

The evaluations showed that the issue of tax offences remained such a sensitive one that mutual assistance could, on this basis be limited and slowed down or at worst be refused.

The experts observed that 14 Member States have ratified the Additional Protocol to the 1959 European Convention of 17 March 1978 while one Member State had not yet done so. Furthermore, of the Member States which had ratified the Protocol, there were many which maintained requirements for dual criminality, for proportionality, and for speciality, mostly expressed through reservations and declarations to the Protocol.

This situation is all the more unfortunate in that certain aspects of organised crime also come within the scope of taxation, such as cigarette smuggling. It would be regrettable if a measure of restraint against a bank account harbouring the proceeds of this type of activity could not be executed on the grounds that the offence concerned taxation.

The draft instrument that at present is being considered in the Working Party on Cooperation in Criminal Matters includes a provision according to which a request for mutual assistance may not be refused on the ground that the request concerns a fiscal offence.

The Council notes, with satisfaction that work is being carried out in the Working Party on Cooperation in Criminal Matters with a view to ensure that requests for mutual legal assistance are not refused on the ground that the offence is a fiscal offence.

(f) Double criminality

The experts systematically examined the question of double criminality, which is sometimes invoked as a ground for not responding to requests for mutual assistance or for not sending a request at all. They found that that condition took different forms in different Member States and was used to varying degrees.

Nevertheless, they noted that:

- the evaluations did not lead to the conclusion that double criminality is a major restraint on mutual assistance since in most cases the crimes for which requests were made constituted serious crimes for which Member States have fairly similar legislation (drugs, crimes of violence, swindling, etc.),

- opinions differ as to whether and to what extent the requirement causes problems in practice,

- practices vary significantly from one country to another and even from one court to another,

- the mere existence of the rule leads some judicial authorities not to send out requests because they know in advance that their request will be rejected.

In addition to these general remarks, some more specific observations may be made.

The first relates to the fact that the very concept of double criminality is not carved in stone; where it exists, it is almost always envisaged with flexibility, not as a requirement that the elements constituting an offence be exactly the same in the law of the requesting and requested State, but frequently as a mere question of double punishability, which is an approach focusing more on the offences than on the law. Double punishability means inquiring whether there is in the law of the requested State an offence of the same nature which allows a charge to be brought even if it does not correspond exactly to the legal definition of the offence on the basis of which the request is made.

The second observation is that despite that variable approach, often described as an assessment in concreto, double criminality remains to a considerable extent a condition of admissibility for the request that, even if in most cases fulfilled, needs to be checked in each case. It is hence not only a potential obstacle to mutual assistance, but may also imply an additional time-consuming element in the procedure. The experts also noted that one Member State considers that the double criminality requirement extends as far as taking into consideration the extenuating circumstances surrounding the offence on which the request is based. That approach considerably extends the scope of the legal requirements and is by its nature liable to prevent the provision of mutual assistance.

A third observation relates to the fact that in many Member States double criminality is analysed differently depending on the person in charge of executing the request; that demonstrates the uncertainty in which the requesting authorities are left. Thus in one Member State it became apparent that one court executing requests had a much stricter concept of the double criminality requirement than the central authority.

The fourth observation is that the double criminality requirement is analysed more strictly when the request relates to a coercive measure. The fact is that searches and seizures, coercive measures par excellence, are essential to the fight against organised crime both to obtain evidence and to stop the assets of the most enterprising international criminals. It was noted, however, that one Member State never applies the double criminality rule vis-à-vis Member States of the Union even where there is a request for search and seizure.

The question of double criminality should become less acute as harmonisation of substantive criminal laws develops within the European Union, even though an observation from the evaluations is that double criminality could be a potential obstacle to mutual assistance, principally where coercive measures are requested.

The draft instrument that at present is being considered in the Working Party on Cooperation in Criminal Matters includes a proposal relating to the double criminality requirement in relation to requests for search and seizure.

Recommendation 4: The Council notes that double criminality remains topical among Member States and recommends continued discussion on this subject.

(g) Procedure

Compatibility between laws on criminal procedure in Member States remains a sensitive issue. The principle is that the requested State applies its own laws in executing the request. For example, the evaluators remarked that the judicial authorities of one Member State could tolerate the presence of a defence lawyer at the hearing, whereas other judicial authorities of the same Member State categorically refused to do so, citing their laws on criminal procedure, which did not so provide. Certain Member States have already introduced provisions into their national law on the question of international cooperation making it possible to apply the law of the requesting State, if so requested. The 2000 Convention includes a provision that the requested State shall comply with the formalities and procedures expressly indicated by the requesting Member State provided that such formalities and procedures are not contrary to the fundamental principles of law in the requested Member State.

All the evaluations devoted time to the internal procedure in the central authorities and other authorities that take part when executing a request for mutual legal assistance. The experts found timeworn bureaucratic practices, which were not in line with the increasing needs arising from a steady and significant increase in the flow of requests. In several Member States the work of the prosecutors is rendered cumbersome by a bureaucratic hierarchy, which slows the dispatch of requests for mutual assistance considerably even when the Member State's laws authorise prosecutors to establish and dispatch them themselves. Evaluations showed that the delays attributable to pointless routing through hierarchical channels could run to weeks or even months.

These administrative routines are not in line with the provisions of the 1990 Schengen Convention and the 2000 Convention. Less formal hierarchy and more individual responsibility appear indispensable.

In several of the Member States evaluated, the cumbersome bureaucratic channels through which requests are passed from the central authority to the staff responsible for executing them struck the experts. In most instances, the justification for that long, slow progression is the need for control. Yet it became apparent that this succession of filters did not ensure real control of the execution of the requests. Genuine control actually takes place either when the request arrives at the central authority or at the level of the judicial authority executing it. To save precious time, responsibility for control should in cases relating to the European Union be vested in a single authority, which in most Member States would be the judicial authority executing the request.

Several requests received by a Member State relate to service of documents and not to obtaining evidence in a criminal proceeding. Even if the service of documents may have great importance for the addressee or the authority that issue the documents they do not require the same complex measures by the requested Member State as other requests for mutual legal assistance. The evaluations showed that service of documents and other requests for mutual legal assistance often were dealt with in the same manner even though the service of documents could be dealt with less formally and thus more quickly.

In this context it should be noted that the experts were impressed with the informal approach to judicial cooperation, which existed in certain Members States. This approach was achieved with a minimum of formality and appeared to be successful. Since the entry into force of the 1990 Schengen Convention this informal approach is finding its way between the judicial authorities, although the situation may still be improved.

The Council reiterates its earlier recommendation of an early ratification of the 2000 Convention, which provides in general for direct contacts and direct transmissions of documents to be served. The Convention also calls on the authorities of the requested Member State to accept a procedure even if it is unfamiliar. This will no doubt entail that the difficulties in general with incompatibility between laws on criminal procedure will become less significant.

Recommendation 5: The Council calls upon the Member States to:

- rationalise the internal procedures and the administrative path and to eliminate red tape in the authorities dealing with mutual legal assistance by defining exact lines of demarcation and specific tasks, simplifying the role of the hierarchy and making the officials concerned responsible. The objective is to achieve a flexible and dynamic service; the informal approach developed in some Member States should be taken into consideration.

- ensure that a request for a specific measure from another Member State will not be executed in a less efficient way than a measure in a domestic case.

(h) Rights of appeal

Although they rarely have suspensive effect, rights of appeal offered by the requested Member State may considerably slow the transmission of material to the requesting authorities, thereby delaying both the analysis and exploitation by the requesting judicial authority. The evaluators noted, for example, that the procedural system in one Member State offered a right of appeal to any person having an interest. That facility had been abused by some defendants for delaying purposes and the Member State acknowledged the situation and had recently amended its legislation to restrict such abuse.

In another Member State a bank may exercise a right of appeal against a decision to seize an account and in a third Member State appeal procedures have suspensive effects. If it is to be assumed that the Member States of the European Union have confidence in one another's legal systems and that mutual assistance is granted in the interests of the requesting Member State, consideration should be given to limiting rights of appeal in the requested Member State or, at least, removing their suspensive effect while not losing sight of the question of fundamental rights.

Recommendation 6: The Council calls upon the Member States to examine their national procedural provisions in order to prevent rights of appeal from being used for delaying purposes.

(i) Financial crimes - specialised units

The evaluations showed that several Member States have set up special units or established specific procedures with the aim of enhancing the fight against financial crime and improving the confiscation of the proceeds of crime. These units contain experts from different areas and field of experiences and this approach has in several Member States proved to be a successful tool in combating financial crime.

Recommendation 7: The Council calls upon the Member States to examine their structures relating to investigations into financial crime with a view to drawing on best practises on how other Member States are organised and examining if it is necessary to reorganise their own structures in order to improve cooperation between the Member States.

(j) Transfer of materials

In some Member States material or objects seized following a decision of a court, acting on the basis of a request from the requesting court, is not transferred directly. Quite frequently, a judicial authority must examine whether all of the seized objects and documents actually relate to the criminal offences defined in the requests and, if necessary, remove those which do not.

The evaluations concluded that this additional stage in the transfer of material relating to the execution of the requests was a pointless requirement, which could hardly be regarded as providing additional guarantees, and was therefore simply a cause of delay. Moreover, this procedural stage is often covered by old legislation and the Member States concerned acknowledged that.

This aspect of the problem is to be viewed in conjunction with the previous recommendations relating to simplifying the procedure, reducing the number of instances involved and making the judicial authority executing the requests responsible, thus avoiding any "over-bureaucratisation" of mutual assistance.

Recommendation 8: The Council calls upon the Member States to simplify the procedure for transfer of material to the requesting Member State by dispensing with multiple controls.

(k) Standard forms and computerised systems for outgoing requests

Several experts recommended the Member States to take all necessary initiatives to improve the quality of requests for mutual legal assistance in order to avoid requests from being misunderstood and in the long run facilitate mutual legal assistance.

The experts were also impressed by the development of computerised systems in some Member States in dealing with requests for mutual legal assistance, which in particular could be one way of improving the quality of outgoing requests. Particularly in one Member State the use of computers was found to be a powerful tool for all of those involved in the preparation of requests.

Recommendation 9: The Council calls upon the European Judicial Network to continue the further development of a standard form for outgoing requests aiming at facilitating mutual assistance and make it available as soon as possible. The Council also recommends the Member States to examine the potential within their own country for a computerised system for the drafting of outgoing requests and coordinate these efforts at EU level, possibly with Community funding,

(l) Good practice

The evaluation exercise had already begun several months before the European Union adopted the Joint Action on good practice in mutual legal assistance in criminal matters. That did not prevent the evaluators from checking that the provisions of that Joint Action were actually being implemented. Their finding was that the 15 Member States had made the statements provided for in the Joint Action of 29 June 1998.

It is difficult to check whether in practice the judicial authorities now take care to indicate in requests all the telephone numbers and electronic addresses for direct contact and whether other points of good practice are applied. In view of the major advantage, which respect for good practice offers, the Member States must devote special attention to it.

Recommendation 10: The Council invites the Member States to assess the respect for the measures set out in the Joint Action of 29 June 1998 on good practice in mutual legal assistance in criminal matters. The European Judicial Network contact points could assist by notifying their own judicial authorities or their counterparts in the Network of any failings encountered.

(m) Urgent requests

The judicial authorities or officials of the central authorities in several Member States complained of abuse of the "urgency" mark, which is seen as a way of having requests dealt with as soon as possible. There is often no explanation of the grounds, which led the requesting authority to mark the case "urgent" even if no reason for urgency could be deduced from examination of the file and material.

Notwithstanding that, the requested State, on the grounds that it is not for it to assess the advisability of the measures requested by the requesting State, nearly always takes action within the deadline requested.

That situation is unsatisfactory because it further delays the execution of requests, which are not marked urgent and discredits the use of the urgency mark.

The Joint Action of 29 June 1998 on good practice in mutual legal assistance in criminal matters includes an obligation for Member States to ensure that, where a request is marked "urgent", to explain the reasons for the urgency and not to mark as "urgent" requests which are of minor importance.

The Council stresses the importance of a full implementation of the Joint Action of 29 June 1998 referred to in Recommendation 10, in particular as regards urgent requests.

(n) Guidelines

The evaluations showed that dissimilar practices could develop on the territory of a Member State with regard to the execution of incoming requests. The experts noted, for example, differences in the interpretation of national rules.

Such differences have great disadvantages and also make it difficult to obtain a clear picture of mutual assistance in the Member State concerned. The use of guidelines to ensure unified approaches and practices would be a logical solution. Moreover, the use of such guidelines is certainly a simple way of ensuring that good practice in mutual assistance becomes widespread.

Recommendation 11: The Council encourages the Member States to issue guidelines, through the means which are in line with their constitutional traditions, to their judicial authorities to ensure the dissemination of homogeneous practices.

(o) The role of the central authority

Pursuant to Article 15(1) of the 1959 European Convention, the normal method for transmission of requests is between the ministries of Justice. In most Member States the Ministry of Justice has become a central point, which ensures the proper distribution and execution of requests sent to it. The evaluations have revealed that these central points have varying levels of control: in some Member States they merely ensure proper transmission and receipt of requests, while in other Member States they are more involved in the execution of the request.

Given the developments in Mutual Legal Assistance envisaged by the new international instruments, such as the 1990 Schengen Convention and the 2000 Convention it was confirmed in the evaluations that it is necessary for most Member States to revisit the concept of a central unit as it has developed within the Member States and to seek to clarify the role that such a central unit should play, in particular in relation to other Member States of the European Union. Within some Member States already, a majority of requests are bypassing the central authority, and this trend can only continue and indeed increase over the coming years, in particular taking account that the evaluations seem to indicate that some of 75 % to 95 % of all requests for mutual legal assistance concern the Member States of the European Union. Against the move towards decentralisation must be weighed the fact that reductions of the capability of the central authority could have an influence on the effectiveness of mutual legal assistance with countries that are not Member States. The central authorities could also play a important role in assisting candidate countries in the process of developing judicial cooperation in criminal matters, as well as in relation to third countries with which the European Union intends to develop closer cooperative links. Through the promotion of an active policy of direct contacts between judicial authorities among Member States, resources will be freed in central authorities for planning, training, more difficult cases of mutual legal assistance and central coordination and international negotiations.

Recommendation 12: The Council calls upon the relevant Working Party to discuss the role of the central authority and how this central unit, despite the moves towards decentralisation, could maintain an effective role, and examine whether there are any functions, such as overall guidance and monitoring, which central authorities are best placed to perform in the developing scenarios.

(p) European Judicial Network

The evaluations have confirmed that the European Judicial Network is playing an important role more and more in speeding up the execution of mutual legal assistance requests and in ensuring better cooperation between investigators both at judicial and law enforcement level. The European Judicial Network is considered by practitioners to be one of the major developments in the European Union for ensuring better judicial cooperation and more efficient fight against serious forms of crime. It has also led to a far better understanding of each other systems.

However, it has been noted in the evaluations that important efforts are still needed at national as well as European Union level and that there is a need to make the Network better known to practitioners.

Recommendation 13: The Council calls upon the Member States and the European Judicial Network to make the Network more widely known to the judicial authorities in the Member States and remind them of the advantages to make more extensive use of the Network's contact points, especially in urgent cases.

Recommendation 14: The Council calls upon the Member States to provide the European Judicial Network contact points with all necessary resources and training, and insists on the speedy implementation of the Council decision(4) to provide the contact points with Intranet facilities as well as a secure e-mail.

(q) Direct communications

According to Article 53 of the 1990 Schengen Convention requests for mutual assistance in criminal matters may be made directly between the judicial authorities. In the 2000 Convention direct communications is made mandatory with some exceptions. The evaluations revealed that in most Member States direct transmission of requests, even if available, is not enough put in practice. The reasons for this differ but generally practitioners at operational level seem not to be familiar with these new channels. The evaluations showed that the practitioners in several Member States were of the opinion that requests that go through ministries or other channels create significant delays and that direct transmission of requests considerably improve practical cooperation.

Recommendation 15: In reiterating the need for an early ratification of the 2000 Convention the Council calls upon the Member States to promote and support the direct communication between judicial authorities of requests for mutual legal assistance in accordance with the provisions of the Convention. In this respect, the implementation of the European Judicial Atlas will play an instrumental role.

(r) Record keeping

In all the evaluations the experts found shortcomings in the Member States regarding the record keeping and control of incoming and outgoing requests. Most Member States could not provide a clear picture of the actual situation regarding number of cases pending, cases completed, outgoing and incoming requests, the time involved in executing the requests, etc. The evaluations showed that automatic issue reminders, notification of partial or full execution to the requesting authorities, did not always follow up the requests for mutual legal assistance.

The recording and control of figures should not be justified in itself, but may be seen as a useful method by which a Member State may acquire a complete knowledge of the system it is operating and the demands being put on it. It is not merely a question of knowing how many cases are going in and out of a country. A better knowledge of the figures gives a Member State the ability to determine whether all parts of a system are able to cope with the demands being put on them and ensure effective coordination of the resources.

Recommendation 16: The Council calls upon the Member States to install and use a computerised system for record keeping in order to give a clearer picture of the actual situation regarding mutual assistance and enable a better monitoring and follow-up for each case.

(s) Resources

The evaluations revealed that there is a general problem of resources and tools both in the central administrations and in the judicial authorities. Until recently the flow of mutual assistance was limited. But the regular increase related directly to greater mobility and the extension of the economic field has led to an increasing mismatch between the tools and resources of another age and today's needs. The experts concur with that finding regarding the increase in flows.

Of the Member States evaluated, some have been forced to react vigorously to make good a lag, which, over time, has become structural. While this effort is to be applauded, the experts are looking to the future and asking whether there is a need not only to make up for time lost but also to take steps to ensure that the means really do match the end. The question can no longer be approached in purely reactive terms; it has become essential to think and formulate forward-looking mutual assistance policies, which make provision in particular for the allocation of means and resources vital for the smooth and efficient management of these matters. This approach is all the more essential as major crime is steadily increasing, so the situation is unlikely to improve. As an example, the evaluators noted the shortage of computers, the use of out-of-date software which inhibited high performance, the rarity of mobile telephones and portable computers amongst officials dealing with these matters, etc. Finally, premises sometimes proved to be in poor condition and almost always unsuitable.

The evaluators also looked at travels by magistrates and police officers abroad to monitor and follow-up the execution of requests. The general finding was that there was a complete lack of flexibility and that resources for missions abroad were restricted owing to the strong suspicion of "administrative tourism". The lack of flexibility was mainly attributable to the fact that the final decision to authorise a mission often went right up through the hierarchy, sometimes as far as the Minister in person. The type of international investigations which police and judicial authorities were likely to encounter these days (cross-border trafficking in migrants, drugs, etc.) calls for swift reaction incompatible with cumbersome bureaucratic procedures. The restriction on resources showed that the methods employed belonged to another age. The need to give the authorities the means to carry out their activities must now be recognised.

Reports obtained during evaluations from those active in this area all concurred on one point: visits to the requested State contributed to speed and relevance in executing requests, particularly where searching or interviewing a witness was involved. Even if it had no right to take action on the territory visited, the authority could have questions put on the basis of its knowledge of the dossier; it could react since it was on the spot; it returned home with a copy of evidence or statements the originals of which would take the official, and inevitably longer, route.

Recommendation 17: The Council calls on Member States to formulate a genuine forward-looking policy on mutual assistance, which could include a policy to facilitate visits abroad by police and judicial authorities concerning mutual assistance, and accordingly to provide the administrative departments and judicial authorities responsible for these matters with the premises, means and resources they need.

(t) Training

All the evaluations highlighted a pronounced need for initial and further training directly geared to the fact that the subject matter of mutual assistance was developing over time. The three main requirements were training to communicate through fluency in language, training in applicable international and national instruments and training in the judicial systems of other Member States.

Direct communication between judicial authorities often involves adequate mastery of one or more languages in addition to one's mother tongue; otherwise this provision in the 1990 Schengen Convention and the 2000 Convention remains purely theoretical. The inability to express oneself in a language other than one's own is a major obstacle to flexible and speedy mutual assistance.

The evaluations showed that several conventions and other international regulatory instruments as well as a variety of national instruments could be applicable when executing or applying for mutual legal assistance. It is therefore essential for Member States to speed up and lay greater emphasis on basic and specialist training for magistrates in order to put them in a position to practice mutual assistance in accordance with the international and national instruments in force. Otherwise, the international instruments negotiated and the new laws adopted by the Member States will remain largely a dead letter.

The vital training should supplement the role which the European Judicial Network contact points must play in this connection in providing information for the judicial authorities which request it regarding the most relevant instruments for obtaining the measures sought in the requested State.

Knowledge of other Member States' legal and institutional systems also appeared to be necessary to understand the requirements of the various systems. Two advantages would ensue making pointless requests, which would be doomed to failure, could be avoided and obstacles could be circumvented through suitable, targeted presentation of requests.

Recommendation 18: The Council calls on Member States to:

- promote and extend, from recruitment and during the course of careers, initial and further training for the purpose of at very least acquiring and maintaining and subsequently improving knowledge and fluency in at least one language in addition to the mother tongue. This requirement could apply to the police, judicial and administrative authorities operating in the field of mutual assistance,

- accelerate, amplify and update the initial and continuous training for prosecutors and judges in order to ensure that judicial authorities have the necessary minimum skills to practice active and passive mutual assistance. Specialist training should be encouraged for the prosecutors and judges most involved in these issues,

- encourage and promote initial and further training to impart and improve knowledge of the legal, judicial and institutional systems of the other Member States. The initiatives taken by certain Member States in this area and also in the framework of the Eurojustice conferences should be supported and the initiative by France regarding a European Judicial Training Network could, when adopted, contribute to furthering this process.

(u) Specialisation

In a number of the Member States visited and evaluated the experts' attention was attracted by the existence of specific institutions designed to improve mutual assistance, coordination of the judicial action taken by the different prosecutors responsible for a particular case and, where appropriate, coordination with foreign judicial authorities: national magistrate, national prosecutor, liaison magistrate, national anti-Mafia directorate, for example, while the European Judicial Network plays a similar role in certain Member States. All these institutions and, it is expected, Eurojust when set up, constitute de facto specialisation by a limited number of magistrates in international cooperation matters. Such specialisation presents numerous advantages in terms of efficiency and restricting training to a select circle of officials.

Recommendation 19: The Council calls on the Member States to examine the possibility of having judicial and administrative staff specialising in the management of mutual assistance in criminal matters. In that context should be examined the possibility of having a specific Union financing programme under Title VI to meet these needs. Such a programme could for instance address training in mutual legal assistance.

IV. THE REPORTS

The practical information contained in the fifteen reports drawn up by the experts constitutes an incomparable fund of data on the institutional, judicial and legal systems of the Member States. It would be a pity if the Union and the Member States were not to benefit from this body of theoretical and practical information, which could be made available to the central authorities, courts, prosecutors and police in the Member States, the European Judicial Network, Eurojust (provisional, subsequently definitive, Unit), the European Police Office (Europol), the European Anti-Fraud Office (OLAF), the International Criminal Police Organisation - Interpol, to facilitate the day-to-day execution of their criminal mutual assistance, cooperation and coordination tasks.

Recommendation 20: The Council calls on the General Secretariat of the Council of the European Union and the European Judicial Network to make the information contained in the evaluation reports available in electronic form (e.g. CD-ROM or the website of the European Judicial Network).

V. FOLLOW-UP TO EVALUATIONS

When drawing up each of the fifteen reports, the experts addressed precise recommendations to the Member States inviting them to correct, alter or amend particular aspects of their mutual assistance systems.

The value of the peer evaluation system lies largely in the process itself and in the incentive it provides to take comments into account. With this in mind, the follow-up to evaluations should be envisaged as a request to the authorities of the Member State concerned to describe either the action taken since the evaluation to remedy the problems pinpointed by the experts, or the reasons for their inaction.

As the evaluations proceeded, the experts were moved to comment that Member States were taking steps to amend their mutual assistance system, to change the law or actually to draw up more detailed legislation, to make up for structural backwardness, etc. Major efforts have sometimes been made to catch up. It would be useful to maintain this momentum. The follow-up to evaluations might serve this purpose.

Recommendation 21: The Council asks the Presidency to prepare a letter on the basis of the conclusions of the evaluation report on each Member State and to forward it to the Member States according to a timetable reflecting the original order of evaluations; each State would then have to describe the institutional, legal, practical, administrative and logistical measures it had taken or will take in response to the recommendations addressed to it. The outcome could then be passed on to the Council by means of a Presidency report.

VI. EXTENSION OF EVALUATIONS TO CANDIDATE COUNTRIES

The Joint Action of 5 December 1997, which served as a legal basis for the evaluations has now become part of the Union acquis. However, the candidate States for accession have not yet benefited from it.

In view of the volume and the relevance of the information, both legal and practical, collected on international mutual assistance during the first evaluation exercise and in the light of the provisions of the Pre-accession Pact as set out in the text approved by the Council on 28 May 1998(5), it would seem useful to extend this procedure now to the candidate countries. It will be an easy matter to take this step now owing to experience accumulated. Moreover, it should be stressed that at its meeting on 24 May 2000 the Multi-disciplinary Group, sitting as the expert group on the Pre-accession Pact, referred to this possibility of extending the Joint Action of 5 December 1997. However, no decision has been formally adopted. In any event, it will be essential first of all to evaluate the cost of extending this procedure which would necessarily have to draw on the resources of the Council General Secretariat, supported by national experts.

Recommendation 22: The Council calls upon the relevant Working Party to extend the mechanism for evaluating international mutual assistance to the candidate States for accession.

VII. THE EVALUATION MECHANISM

Article 10 of the Joint Action of 5 December 1997, which is the basis for the evaluations, calls upon the Council to examine the detailed rules and scope of the mechanism and, if appropriate, make adjustments to the Joint Action.

Throughout this first evaluation exercise, the mechanism in place has given full satisfaction. Its provisions have not created any particular difficulties and the procedure has been without a hitch. Discussion took place in the Multi-disciplinary Group at the time of the first intermediate report to resolve ambiguities of interpretation on a few points of detail. The procedure is now well-honed and the second exercise on enforcement agencies and the fight against drugs is now in progress and is proving satisfactory. Moreover, the Multidisciplinary Group has already decided to devote the third evaluation exercise to extradition and begin work before 1 July 2001(6).

It may also be noted that, although the confidential nature of the procedure slowed down the translation, it was not an insurmountable obstacle and was an important factor in inspiring confidence in the Member States; after discussion, they all agreed to remove the confidentiality requirement. A "restricted" procedure, rather than a confidential procedure, is being used in relation to the second round of the evaluations. This simplifies administrative treatment of evaluations without losing the confidence, which the evaluation mechanism inspires.

VIII. CONCLUSION

In conclusion, while the evaluation procedure is certainly a constraint and demanding on resources, which the Member States sometimes find difficult, its critical aspect is very useful, given that it is in the hands of peers, and indeed to some extent irreplaceable. The first exercise has demonstrated that this tool works well.

On the basis of a report from the Presidency before the end of 2003, the Council should take note of progress made following implementation of the recommendations set out in this report.

(1) Approved by the Council on 28 May 2001.

(2) Article 8(5): "At the end of a complete evaluation exercise, the Council shall take the appropriate measures."

Article 10: "No later than at the end of the first evaluation of all the Member States, the Council shall examine the detailed rules and scope of the mechanism and shall, if appropriate, make adjustments to this Joint Action."

(3) OJ C 124, 3.5.2000, p. 1.

(4) A decision was taken on 11 January 2001 to implement the pilot project concerning the virtual private network with a view to it becoming operational in August 2001.

(5) Pre-accession Pact on organised crime between the Member States of the European Union and the applicant countries of central and eastern Europe and Cyprus. (OJ C 220, 15.7.1998, p. 1).

(6) Recommendation 28 in the document on "The prevention and control of organised crime: a European Union strategy for the beginning of the new millennium" (OJ C 124, 3.5.2000, p. 1).