Mutual assistance in criminal matters between Member States

Legal and judicial systems vary from one Member State to another and there is a strong need to establish cooperation in this respect. The Council accordingly adopted this Convention to facilitate mutual judicial assistance between the authorities of the Member States (police, customs and courts) in order to improve the speed and efficiency of judicial cooperation.

ACT

Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.

SUMMARY

The purpose of this Convention is to encourage and modernise cooperation between judicial, police and customs authorities by supplementing the provisions and facilitating the application of the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters, and its 1978 Protocol, the 1990 Convention applying the Schengen Agreement and the Benelux Treaty of 1962. Such mutual assistance must respect the basic principles of each Member State and the 1951 European Convention for the Protection of Human Rights.

Requests for mutual assistance

The Convention lays down the conditions under which mutual assistance is granted. The requested Member State must comply with the formalities and procedures indicated by the requesting Member State. If the deadline set cannot be met, for example, it should inform the requesting Member State as soon as possible and they may try to agree on further action to be taken concerning the request.

Each Member State is to send procedural documents intended for persons who are in the territory of another Member State to them directly by post. In some cases, the documents may be sent via the competent authorities of the requested Member State. Where necessary for the comprehension of the addressee, the document, or at least its important passages, must be translated. All procedural documents are to be accompanied by a report stating where the addressee may obtain information regarding his rights and obligations concerning the document.

As a general rule, requests for mutual assistance and communications are made directly between judicial authorities with territorial competence. However, it is possible that some cases may be sent or returned via a central authority of a Member State. In certain cases it is actually compulsory to go through the central authorities (requests for temporary transfer or transit of persons held in custody, sending of notices of information from judicial records). Urgent requests may be made via Interpol or any body competent under provisions introduced pursuant to the Treaty on European Union.

A judicial authority or a central authority in one Member State may make direct contact with a police or customs authority from another Member State or, in respect of requests for mutual assistance in relation to proceedings, with an administrative authority from another Member State. Member States may refuse to apply this clause or choose to apply it under certain conditions.

A spontaneous exchange of information (i.e. without prior request) may take place between Member States regarding criminal offences and administrative infringements the punishment or handling of which falls within the competence of the receiving authority.

Specific forms of mutual assistance

Stolen objects that are found in another Member State are to be placed at the disposal of the requesting State with a view to their return to their rightful owners. In certain cases, the requested Member State may refrain from returning the objects if that would facilitate the restitution of such articles to the rightful owner.

A person held on the territory of a Member State which has requested an investigation may be temporarily transferred to the territory of the Member State in which the investigation is to take place, with the agreement of the competent authorities. Where it is required by one of the Member States, the consent of the person concerned is necessary before he can be transferred.

A witness or an expert in a Member State may be heard by the judicial authorities of another Member State by videoconference if this is not contrary to the fundamental principles of the requested Member State and if all the parties concerned are in agreement.

Controlled deliveries may be permitted on the territory of another Member State within the framework of criminal investigations into extraditable offences. They are to be directed and monitored by the authorities of the requested Member State.

Two or more Member States may set up a joint investigation team the composition of which is to be set out in a joint agreement between the Member States concerned. The team would be set up for a specific purpose and for a limited period of time. An official from the Member State in which the team is operating would coordinate and lead its activities in the territory of that Member State.
Covert investigations may also be carried out by officers acting under covert or false identity, provided that the national law and procedures of the Member State where the investigations take place are complied with.

Interception of telecommunications

This may be done at the request of a competent authority from another Member State - a judicial authority or an administrative authority designated for the purpose by the Member State concerned. Communications may either be intercepted and transmitted directly to the requesting Member State or recorded for subsequent transmission.

Member States are to consider such requests in accordance with their own national law and procedures. Interception may also take place on the territory of a Member State in which earth satellite equipment is located if the technical assistance of that Member State is not required by the service providers in the requesting Member State. Where interception takes place on the territory of a particular Member State because of the location of the subject but no technical assistance is needed, the Member State carrying out the interception should inform the other Member State of its action.

Personal data protection

A Member State which has obtained personal data under the Convention may use them only:

for judicial or administrative proceedings covered by Convention;
for preventing an immediate and serious threat to public security;
for any other purpose, with the prior consent of the communicating Member State or of the data subject.

The communicating Member State may ask the Member State to which the personal data have been transferred to give information on the use made of the data.

Special position of certain Member States

Special provisions apply to Ireland and the United Kingdom (transmission of requests for assistance), to Luxembourg (protection of personal data) and to Norway and Iceland (provisions linked to the Schengen acquis and the entry into force of the Convention).

Date of entry into force in the Member States

for the first eight Member States (of EU-15) to notify adoption of the Convention: 90 days after receipt by the Secretary-General of the Council of the eighth notification
for each Member State that adopts the Convention after that date: 90 days after notification to the Secretary-General of the Council of adoption of the Convention

However, before the Convention has entered into force for the first eight Member States, any Member State may declare that it will apply the Convention in its relations with Member States which have made the same declaration. Such declarations take effect 90 days after the date they are deposited.

The Convention entered into force on 23 August 2005 and replaces the Framework-Decision of 2002/465/JAI of the Council of 13 June, 2002, on joint investigation teams.

REFERENCES

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Council Act of 29 May 2005	After ratification by the Member States	-	OJ C 197 of 12.07.2005

RELATED ACTS

Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union established by the Council in accordance with Article 34 of the Treaty on European Union [Official Journal C 326 of 21.11.2001]
The Protocol is an integral part of the Convention of 29 May 2000. It provides for supplementary measures such as requests for information on banking transactions in order to combat crime in general and organised crime in particular. It is to enter into force following ratification by the Member States.

Explanatory Report - Official Journal C 379 of 29.12.2000
Explanatory report on the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union (Text approved by the Council on 30 November 2000).

Communication - Official Journal C 197 of 12.07.2000
Communication by the Secretary-General of the Council of the European Union under Article 30(2) of the Convention, established by the Council in accordance with Article 34 of the Treaty on European Union, on Mutual Assistance in Criminal Matters between the Member States of the European Union.
The Communication quotes the declaration made by Luxembourg, at the signing of the Convention, on the protection of personal data.

For further information, see the website of the European Commission's Directorate-General for Justice, Freedom and Security .

Last updated: 12.10.2005