DECISION OF THE EXECUTIVE COMMITTEE

of 28 April 1999

on the improvement of police cooperation in preventing and detecting criminal offences

(SCH/Com-ex (99) 18)

THE EXECUTIVE COMMITTEE,

Having regard to Article 132 of the Agreement implementing the Schengen Convention,

Having regard to Article 39 of the abovementioned Convention,

Desiring to continue efforts to improve the conditions for cross-border police cooperation,

Taking account of the Executive Committee Decision of 16 December 1998 (Doc. SCH/Com-ex (98)51 Rev 3),

HAS DECIDED AS FOLLOWS:

The principles governing police cooperation in preventing and investigating criminal offences as set out in the Presidency's note (Doc. SCH/I (98)75 Rev 5) of 28 April 1999 are hereby approved.

Luxembourg, 28 April 1999.

The President

C. H. Schapper

Subject: Application of Article 39 of the Convention: improving police cooperation in preventing and investigating criminal offences

SCH/I (98)75 Rev. 5

The German Presidency is striving to improve police cooperation between the Contracting States in investigating criminal offences. At Group I's meeting on 14 September 1998, the Presidency submitted a note setting out the problems and possible solutions (SCH/I (98)55 Rev.).

All delegations agreed that much could be done to alleviate the shortcomings in police cooperation in the area of investigating criminal offences if the provisions of the Schengen Convention were given a uniform interpretation and applied on the basis of its objectives.

The Contracting States agree that improved police cooperation in criminal investigation must not prejudice the powers of the judicial authorities.

The following solutions are feasible in the short-term:

1. List

For the purpose of applying Article 39 of the Schengen Convention and improving the investigation and prevention of criminal offences, the police forces of the Schengen States may exchange information provided that:

- information exchange does not require the use of coercive measures,

- information exchange is admissible under the domestic law of the requested Contracting State and the activities to be carried out are not solely the preserve of the judicial authorities or require their consent.

Improvements in investigating and preventing crime will be achieved by means of cooperation between the police forces of the Schengen States without the involvement of the judicial authorities when grounds for suspicion or concrete dangers arise, notably via steps such as those listed below. This list is not exhaustive and the implementation of the steps mentioned is subject to their admissibility under the national law of the requested and requesting State:

- identification of vehicle owners and drivers,

- driver's licence enquiries,

- tracing whereabouts and residence,

- identification of telecommunications subscribers (telephone, fax and Internet), provided this information is publicly available,

- obtaining information from the persons concerned by the police on a voluntary basis(1),

- identification of persons,

- transmission of police intelligence from police databases or files, subject to compliance with the relevant legal provisions governing data protection,

- preparation of plans and coordination of search measures and the initiation of emergency searches (independently of SIS searches),

- tracing the origins of goods, particularly weapons and vehicles (tracing sales channels),

- examination of evidence (such as vehicle damage after hit and run accidents, erasures in documents, etc.).

Schengen States may in accordance with Article 39 of the Schengen Convention agree with individual or all Contracting Parties to lay down additional areas in which the police can provide mutual assistance without involving the judicial authorities

2. Application of the judicial consent proviso (Article 39(2))

The prompt use of information as evidence in criminal proceedings is only possible if the requested Contracting State does not require formal letters rogatory in addition to the police request. The scant resources of the authorities responsible for criminal prosecution must be deployed to deal with the urgent problems of crime prevention and not unnecessarily constrained by the consent requirement.

At no point does Article 39(2) stipulate that authorisation must be obtained from the judicial authorities in order to introduce documents as evidence. The procedure for obtaining authorisation is therefore a matter for the Contracting States to determine.

The Schengen States agree that the police forces and judicial authorities may transmit requests for authorisation and the documents resulting from dealing with such requests by any means that allow swift transmission, provided the transmission provides a written trace of the document's author, (for example telefax, e-mail).

3. Simplification of procedures

Criminal investigations, particularly in emergencies, can also be accelerated by simplifying procedures. This is exemplified in the bilateral arrangements between two Schengen States whereby, at the instigation of the judicial authorities, the police authorities cooperate directly by assisting each other with police interviews, searches and the seizure of objects when a delay would be dangerous.

The Contracting States will look at the experiences gained with this or similar agreements to determine whether appropriate Schengen-wide procedures can be devised.

(1) Under the national law of Austria, Germany and the Netherlands, the principle of voluntary police interviews applies.