A4-0122/98

Draft Convention on mutual assistance in criminal matters between the Member States of the European Union (5202/98 - C4-0062/98 - 98/0902(CNS))

The draft was approved with the following amendments:

(Amendment 1)

Recital 4a (new)

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Firmly believing that improving judicial cooperation in criminal matters is a factor of fundamental importance in combating organized crime;

(Amendment 2)

Recital 6

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

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Considering that

, pending the production, in due course, of a single codified version for the Member States of the Union, the provisions of those Conventions remain applicable for all matters not covered by this Convention;

(Amendment 3)

Article 1(2)

>Original text>

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.

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2.

Paragraph 1 shall not affect the application of 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, provided that in both cases these provisions actually result in more effective cooperation.

(Amendment 4)

Article 1a (new)

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Article 1a

Where any doubt arises, this Convention shall be applied in accordance with the interpretation following from Article 1(1) of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959.

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The Member States may agree, in accordance with the provisions of the third subparagraph of Article K.3 (2)(c), that the Court of Justice shall have jurisdiction to interpret the provisions of this Convention and to rule on any disputes regarding their application.

(Amendment 5)

Article 3(1)

>Original text>

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 shall execute the request for assistance as soon as possible and shall take as full account as possible of any deadlines set by the requesting Member State. The requesting Member State shall explain the reason for the deadline.

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1.

Where mutual assistance is afforded, 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, in accordance with its national legal system, the treaties and other agreements in force and the general principles of law and criminal procedure recognized by the Member States. The requested Member State shall execute the request for assistance within the prescribed period and shall take as full account as possible of any procedural deadlines set by the requesting Member State. The requesting Member State shall explain the reason for the deadline.

(Amendment 6)

Article 3(2)

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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 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 State may subsequently agree on further action to be taken concerning the request, where necessary making such action subject to the fulfilment of those conditions.

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2.

Where the request cannot, or cannot fully, be executed in accordance with the time-limits and requirements or within any deadlines set by the requesting Member State, the authorities of the requested Member State shall 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 period required for execution. The authorities of the requesting and the requested Member State may subsequently agree on further action to be taken concerning the request, where necessary making such action subject to the fulfilment of those conditions.

(Amendment 7)

Article 5(1)

>Original text>

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.

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1.

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

(Amendment 8)

Article 6(3)(b)

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(b) the nature of the criminal investigation;

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(b)

the nature of the criminal investigation and an indication of the main evidence gathered in respect of the subject of the investigation;

(Amendment 9)

Article 6(8)

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8. Nothing in this Article shall preclude any bilateral or multilateral cooperation between Member States on interception matters which falls within the scope of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959.

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8.

Nothing in this Article shall preclude any bilateral or multilateral cooperation between Member States on interception matters which falls within the scope of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, provided that the condition laid down in Article 1(2) is fulfilled, and having due regard, in addition, for the measures necessary for the protection of fundamental human rights.

(Amendment 10)

Article 10

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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.

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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.

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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.

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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.

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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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3.

Controlled deliveries shall take place in accordance with the procedures laid down in Article 3(1). Competence to act and to direct operations shall lie with the authorities of the requested Member State.

(Amendment 11)

Article 11(2), introduction

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2. Procedural documents may be sent via the competent authorities of the requested Member State if

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2.

Procedural documents may be sent via the competent authorities of the requested Member State only if

(Amendment 12)

Article 12(5a) (new)

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5a. The person to be heard may, upon receipt of the summons to appear, at any time inform the judicial authorities of the requested Member State of his intention to appear in person on the territory of the requesting Member State. In that case, the competent authorities of the requesting and requested Member States shall, by common accord, take the most appropriate measures.

(Amendment 13)

Article 12(6)(d)

>Original text>

(d) at the request of the requesting Member State the requested Member State shall ensure that the person to be heard is assisted by an interpreter, if necessary.

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(d)

at the request of the requesting Member State or the person to be heard the requested Member State shall ensure that the latter is assisted by an interpreter, if necessary.

(Amendment 14)

Article 14

>Original text>

1. The competent authorities of the Member States may, within the limits of their national law and without a request to that effect, exchange information relating to criminal offences or infringements of regulations, as referred to in Article 2(1), the punishment or handling of which falls within the competence of the receiving authority at the time the information is provided.

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The competent authorities of the Member States

shall, within the limits of their national law and without a request to that effect, undertake to exchange information relating to criminal offences or infringements of regulations, as referred to in Article 2(1), the punishment or handling of which falls within the competence of the receiving authority at the time the information is provided.

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2. The providing authority may, pursuant to its national law, impose conditions on the use of such information by the receiving authority.

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The information provided shall be used in accordance with the conventions in force and the legal system of the receiving authority.

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3. The receiving authority shall be bound by those conditions.

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Deleted

(Amendment 15)

Article 15(3), (4) and (5)

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3. A Member State may declare, in a statement to be sent to the depositary of this Convention, that its judicial authorities do not, or do not in general, have authority to execute direct requests and that requests and information must therefore be sent via the central authority or authorities of the Member State to the extent indicated in the statement. The Member State may at any time amend its statement by means of a communication to be made to the depositary and any such amendment shall be for the purpose of giving greater effect to paragraph 1.

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Deleted

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4. Any request as referred to in paragraph 1 may, for the sake of speed, be made via the International Criminal Police Organization (Interpol) or any other body competent under provisions introduced pursuant to the Treaty on European Union.

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4.

Any request as referred to in paragraph 1 may, for the sake of speed, be made via the International Criminal Police Organization (Interpol), the European Police Office (Europol), once it is operational, or any other body competent under provisions introduced pursuant to the Treaty on European Union.

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5. Subject to statements made in accordance with paragraph 3, paragraph 1 shall apply to requests for controlled deliveries, as referred to in Article 10 and to requests for covert investigations referred to in Article 15a. Where the competent authority is a judicial authority in one Member State and a police or customs authority in the other, requests shall be made and answered directly between those authorities.

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5.

Paragraph 1 shall apply to requests for controlled deliveries, as referred to in Article 10 and to requests for covert investigations referred to in Article 15a. Where the competent authority is a judicial authority in one Member State and a police or customs authority in the other, requests shall be made and answered directly between those authorities.

(Amendment 16)

Article 15a(3)

>Original text>

3. Covert investigations shall take place inaccordance 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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3.

Covert investigations shall take place in accordance with the procedures laid down in Article 3(1). Competence to act and to direct operations shall lie with the competent authorities of the requested Member State.

(Amendment 17)

Article 17

>Original text>

Reservations against this Convention are not permitted, with the exception of that referred to in Article 15(3).

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Reservations against this Convention are not permitted.

(Amendment 18)

Article 18(3), (4) and (5)

>Original text>

3. This Convention shall enter into force ninety days after the notification referred to in paragraph 2 by the State, Member of the European Union at the time of adoption by the Council of the Act drawing up this Convention, which is last to complete that formality.

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3.

This Convention shall enter into force thirty days after the notification referred to in paragraph 2 by the State, Member of the European Union at the time of adoption by the Council of the Act drawing up this Convention, which is last to complete that formality.

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4. Until this Convention enters into force, any Member State may, when giving the notification referred to in paragraph 2 or at any other time, declare that as far as it is concerned this Convention shall apply to its relations with Member States which have made the same declaration. Such declarations shall take effect ninety days after the date of deposit thereof.

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4.

Until this Convention enters into force, any Member State may, when giving the notification referred to in paragraph 2 or at any other time, declare that as far as it is concerned this Convention shall apply to its relations with Member States which have made the same declaration. Such declarations shall take effect thirty days after the date of deposit thereof.

>Original text>

5. This Convention shall apply only to requests submitted after the date on which it enters into force or is applied as between the requested Member State and the requesting Member State.

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5.

This Convention shall apply only to requests for mutual assistance submitted after the date on which it enters into force or is applied as between the requested Member State and the requesting Member State.

(Amendment 19)

Article 19(4)

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4. This Convention shall enter into force with respect to any State which accedes to it ninety days after the deposit of its instrument of accession or on the date of entry into force of this Convention if it has not already entered into force at the time of expiry of the said period of ninety days.

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4.

This Convention shall enter into force with respect to any State which accedes to it thirty days after the deposit of its instrument of accession or on the date of entry into force of this Convention if it has not already entered into force at the time of expiry of the said period of thirty days.

(Amendment 20)

Article 20(2)

>Original text>

2. The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, statements and reservations and also any other notification concerning this Convention.

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2.

The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, statements and also any other notification concerning this Convention.

Legislative resolution embodying Parliament's opinion on the draft Convention on mutual assistance in criminal matters between the Member States of the European Union (5202/98 - C4-0062/98 - 98/0902(CNS)) (Consultation procedure)

The European Parliament,

- having regard to the Council draft (5202/98 - 98/0902(CNS)),

- having been consulted by the Council pursuant to Article K.6, 2nd paragraph, of the Treaty on European Union (C4-0062/98),

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinion of the Committee on Legal Affairs and Citizens' Rights (A4-0122/98),

- whereas the draft submitted to it is incomplete,

1. Approves the draft of the Council Presidency with regard to the part submitted to it, subject to Parliament's amendments;

2. Requests the Council to amend its draft accordingly;

3. Requests the Council to inform Parliament should the Council intend to depart from the text approved by Parliament;

4. Asks to be consulted again once the Council has drawn up a complete draft Convention;

5. Instructs its President to forward this opinion to the Council and Commission.