FECL 54 (May 1998):
Both conventions constitute a further step towards a blurring of the lines between the traditionally distinct tasks of the judiciary, the police and the customs authorities.
There is a lot of overlapping between the two conventions and other international frameworks such as Schengen - overlapping of their scope and, overlapping of the "competent authorities" involved. The following comparative study of the draft CMACM and Naples II is an attempt to assess the possible cumulative effects of their combined application and their interrelation with Schengen rules, and other existing and planned instruments of international cooperation in the combat against crime.
CMACM1): The CMACM is to supplement the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters and the Schengen Implementing Convention. It represents a clear departure from the principle underlying the 1959 Convention, which dealt exclusively with cooperation between judicial authorities over matters connected with criminal proceedings (where charges had already been laid against the persons concerned or were at least in preparation) 2). In contrast to this, the draft CMACM provides in addition for cooperation of law enforcement authorities in cases that do not presuppose any imminent proceedings. Article 2 states the obligation of Member States to provide each other assistance not only with respect to crimes but also to mere "infringements of the rule of law" that may be brought before a criminal court. Furthermore, Article 2 states a departure from the requirement of double criminality - according to which mutual assistance may not take place, where a persons behaviour is not punishable in one of the states concerned. According to Article 2, a requested Member State must grant assistance in respect of offences which are "punishable under the national law of the requesting or of the requested Member State, or both".
The Draft CMACM provides for mutual assistance and cross-border cooperation in sensitive domains such as:
Interception of telecommunications (Art. 6-9);
Controlled deliveries (where the authorities know in advance and have under surveillance the transport of illegal goods, e.g. drugs) (Art. 10);
"Spontaneous" information exchange between judicial authorities (Art. 14); and
Covert investigations (Art. 15a).
(While this is being written, it is still possible that some of the provisions above will be changed or even removed in the final wording of the Convention. It is nonetheless interesting to examine them closely at this stage, since notwithstanding the final wording of the CMACM, there appears to be general agreement between the Member States that the use of the controversial methods of investigation in question should be authorised, if not by the CMACM, by separate sets of rules.)
"Mutual assistance" is to be facilitated by:
Simplification of mutual legal assistance (MLA) procedures (e.g. provision of evidence and execution of other letters rogatory in accordance with the law of the requesting State rather than, as under the 1959 Council of Europe Convention, the law of the requested State; facilitated temporary transfer of prisoners);
New ways of taking evidence (e.g. by video conference);
Facilitated direct transmission of MLA requests between the competent authorities of the Member States concerned.
Naples II: The purpose of the Naples II Convention is the prevention, detection, prosecution and punishment of infringements of national and Community customs provisions through enhanced cooperation and mutual assistance between the Member States (Art.1). The overlapping scopes of the CMACM and Naples II are evident. Naples II covers mutual assistance and cooperation "in the framework of criminal investigations" involving customs provisions (Art.3.1). Where a criminal investigation is carried out by or under the direction of a judicial authority, that authority is to determine whether requests in connection with that investigation made by another Member State are to be submitted on the basis of the CMACM or on the basis of Naples II (Art. 3.2).
The "infringements" covered by Naples II include all acts in conflict with customs provisions, as well as
- participation in and attempts of such infringements;
- "participation in a criminal organisation" committing such infringements; and,
- deriving money laundering deriving from such participation.
Naples II provides for new types of cooperation and mutual assistance regarding
- requests for surveillance (so-called "special watch" (Art. 11);
- requests for inquiries (Art. 12)
- requests for information (including oral requests) (Art. 10);
- "spontaneous assistance" (Title III); and,
- "special forms of cooperation" (Title IV), covering "activities" of officers from the requesting Member State on the territory of the requested state, such as hot pursuit (Art. 20), cross-border surveillance (Art. 21), controlled deliveries (Art. 22), covert investigations (Art. 23), and investigations by "Joint Investigation Teams" (Art. 24).
The two Conventions overlapping and complex interplay is also illustrated by the provisions conferring partly identical and partly differing particular tasks and powers on the "competent authorities", designed by each Member State.
CMACM: In the draft CMACM the term "competent authorities" applies not only to judicial authorities, but can apply to mutual assistance involving police, customs authorities, and, perhaps, intelligence services too (where, in a Member State, they are tasked with the fight against crime). This appears from the fact that, where mutual assistance is limited to judicial authorities only, this is expressly stated. Thus, only judicial authorities may make requests for mutual assistance and engage in "spontaneous exchange of information" (i.e. transmit information of possible interest to another Member State, without the latter having made a request to this effect; Art. 15.1). Somewhat surprisingly, this restriction does not apply to particularly sensitive requests for controlled deliveries and covert investigations. Indeed, Art. 15.5 states that "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". It is understandable then that one Member State "wondered if the wording of [the above] sentence would not be better contained in a separate general paragraph covering requests for assistance in general and not only requests for controlled deliveries". 3)
Naples II: Under Naples II the competent authorities comprise the Member States customs authorities, as well as "other authorities with jurisdiction for implementing the provisions of this Convention" (Art. 4.7).
CMACM: A number of Member States, have argued that "technology was developing very rapidly in [the field of telecommunications] and that therefore fairly general rules should be drawn up which could also apply in respect of potential future structures" 4). The draft CMACM (of 14.1.98) appears to take these considerations into account through a broad wording of the relevant rules (Art. 6 and 7).
According to Art. 6.1, the "competent authorities" of the requesting state may make a request for interception and immediate direct transmission to a "competent authority" in another (requested) Member State. Requests may pertain to persons subject to criminal investigation. The rules are worded so as to enable the interception without interruption in the whole territory of the EU, even of persons, quickly moving quickly between different Member States and using any type of fixed or mobile telecommunications devices and structures (Art. 6.2, a-c).
The requested state must accede to a request
a) concerning a person staying in the requesting state, but using telecommunication systems that can only be intercepted by the requested state;
b) concerning a person staying in the requested state, provided the request would be acceded to if it was made by a national authority in the requested Member State;
c) concerning a person staying in a third Member State (i.e. neither the requesting nor the requested Member State), provided the third Member State is informed and has approved of the interception measure. (Art.6.7, a-c).
It is believed that no final agreement has been reached on whether to include the item of interception in the final version of the CMACM or whether interception should be addressed separately, e.g. in a Protocol to the Convention.
Irrespective of the outcome of discussions, the draft CMACM provides some insight regarding the approach of the item.
Naples II: Naples II contains no provisions on interception of telecommunications. However, this does not imply that interception of telecommunications is excluded in customs cooperation. The wordings of Articles 3.2 of Naples II and Art.15.5 of the CMACM suggest that, by the combined use of the two Conventions, the "competent authorities" of one Member State could indeed request the "competent authorities" in another state to tap the phones of persons suspected of infringement of customs rules. Moreover, the Member States are currently working (in the K.4 Committees Enfopol Working group on Law Enforcement) on drawing up a separate set of rules pertaining to the interception of telecommunications.
CMACM: Each Member State "shall undertake to ensure that, at the request of another Member State, controlled deliveries [i.e. deliveries of illegal goods under police surveillance] may be permitted on its territory in the framework of criminal investigations into extraditable offences" (Art. 10.1). Under the 1996 EU Convention on Extradition, extradition requests shall be acceded to for all offences punishable by at least 12 months imprisonment in the requesting state and 6 months in the requested state (see FECL No.45: "EUROPOL CONVENTION READY FOR RATIFICATION").
According to Art. 10.2-3, the competence to decide and to direct an operation lies with the authorities of the requested state. The wording of this provision does, however, not appear to exclude officers of the requesting Member State from participating in and actually running an operation with the consent of the requested state. 5)
Naples II: Requests for controlled deliveries are to be dealt with according to the same rules as stated in the CMACM (Art. 22).
CMACM: Upon request, "the requested Member State may authorise covert investigations" concerning extraditable offences on its territory (Art. 15a). Decisions to this effect are to be taken by the authorities of the requested state, and operations are to be led and supervised by them and carried out in accordance with their national procedures.
Interestingly, the provision does not specify what particular methods of action the term "covert investigation" will comprise. It is worth mentioning that, in accordance with the aforementioned Art. 15.5, a request for "covert investigation" by a judicial authority of the requesting state can be acceded to by non-judicial authorities (the police or customs authorities) of the requested Member State without any involvement of the judiciary of the requested state.
Naples II: The corresponding provision in Naples II (Art. 23) differs from Art.15a in so far as it specifies what is meant by "covert investigation". Art. 23 states "the requested authority may authorise officers of the customs administration of the requesting Member State, or officers acting on its behalf, operating under cover of a false identity (covert investigators) to operate in the territory of the requested Member State".
It is unlikely that this difference of the corresponding provisions in the two Conventions is accidental, since Art. 15a CMACM in an earlier draft (of 16.11.97) was identical with the wording of Art.23 of the Naples II Convention.
Apparently, the mention of "officers operating under cover of a false identity" was too much for some Member States where the use of covert investigators is subject to tight restrictions, and too little for others, where wide use is made of undercover agents, (including not only officers but also "informal collaborators" (e.g. criminals hired as informers and agents provocateurs).
The wording in the 14 January draft CMACM has the advantage of allowing both a restrictive and a catch-all interpretation of the term "covert investigation", according to the prevailing national law and practice of each Member State. In any case, it does not restrict covert cross-border investigations to merely the use of "officers operating under cover", and, thus, is more "flexible", as regards its future interpretation by the Member States.
Both Naples II and the draft CMACM provide for spontaneous assistance.
CMACM: The draft CMACM allows the judicial authorities to exchange "information relating to offences or infringements" without a request being made (Art. 14). This appears to include the exchange of sensitive data on persons not suspected of an offence. Strangely, no mention is made in the draft Convention of rules on data protection.
Naples II: Naples II contains a whole Title on spontaneous assistance (Title III):
Art. 15 states the principle that the competent authorities are bound by the Convention to provide spontaneous assistance to each other. Art. 16 establishes an obligation for Member States to keep a "special watch" on persons "where there are serious grounds for believing that they have infringed [customs-related laws covered by the Convention] or are committing or have carried out preparatory acts with a view to the commission of such infringements" (Art.11). Art. 17 provides for the spontaneous exchange of information, and Art. 18 states that surveillance reports and information communicated in the course of spontaneous assistance may be used as evidence by the "competent bodies" of the receiving Member State, in accordance with their national law.
On the whole, the Naples II Convention is more specific than the draft CMACM as regards the forms and types of mutual assistance provided for.
Hot pursuit and cross-border surveillance
As an example, a whole Title (IV) of Naples II is about "special forms of cooperation" not mentioned in the draft CMACM - i.e. cross-border cooperation, including, among others, "hot pursuit" on land and on the sea (Art. 20) and cross-border surveillance (Art. 21).
Central Coordinating Units, liaison officers, Joint Special Investigation Teams...
The Member States are bound to set up national "Central Coordinating Units" in their customs administrations, responsible for coordinating mutual assistance measures on the national and international level (Art. 5). They may exchange liaison officers whose tasks and competences may include about any form of advice, assistance and support except "powers of intervention in the host country". The Member States are to accede to requests for information (Art. 10), for surveillance, i.e "special watch" (Art. 11), and for enquiries (Art. 12).
Officers operating in another Member State: what powers?
Under Art. 12 the requested authorities are to carry out enquiries concerning operations which constitute or appear to the requesting authority to constitute infringements.
Art. 12.2, first paragraph, states that enquiries must "at all times" be carried out by officers of the requested state". Officers of the requesting state may "be present". Art. 12.2, second paragraph, goes on to state that requesting authorities officers "may not, of their own initiative, assume powers conferred on officers of the requested authority" (our italics). This suggests that officers of the requesting state may actually carry out operational tasks on the territory of the requested state, provided they have received an authorisation to this effect from the requested state.
This may be of some relevance especially as regards the functioning of the "Joint Special Investigation Teams (JSIT)" which Member States can set up by mutual agreement (Art. 24). These JSITs will be based in one Member State and headed by an officer of the host state but will comprise officers from other Member States with "relevant specialisations". Art 24.3 says membership of a JSIT will not bestow on officers any "powers of intervention" in the territory of another Member State. However, Article 12.2 appears to relativize this rule. In practice, the authorities of the Member State hosting a JSIT are likely to grant at least quasi-operational powers to foreign officers assigned to a JSIT on the basis of their "relevant specialisations". Art. 24.2 (a) says JSITs are to be set up only for a "specific purpose" and for a "limited period". Considering its elastic wording, it is doubtful, to say the least, whether this provision will actually have any restrictive effect on the scope and the duration of JSIT activities.
Why are some methods of mutual assistance and cooperation covered by the Naples II Convention not mentioned in the draft Convention on Mutual Assistance in Criminal Matters?
One possible answer to this question may be found in the aforementioned progress report by the K.4 Committee on the work with the draft CMACM. Addressing the item of "modern cross-border investigation methods", the document refers to the conclusion of an earlier report on the draft Convention, "where it was stated that, without prejudice to future instruments, certain modern methods discussed were either covered by existing instruments or not relevant in the context of mutual assistance [in criminal matters] because they were considered police cooperation or found not to be feasible for the moment because differences in national legislation were too great".
This assessment is another hint at the synergetic effect that is likely to ensue from the combined application of a veritable muddle of existing and planned instruments in the fields of Justice, Police and Customs cooperation. For example, the draft CMACM says nothing on "hot pursuit" and cross-border surveillance, but the 1995 Schengen Implementing Convention (which will become part of the Union acquis once the Amsterdam Treaty (amended Treaty on European Union, TEU) enters into force,) does provide for these and a number of other methods in its chapter on Police cooperation (which actually also includes customs).
As opposed to Naples II, the draft CMACM does not mention joint investigation teams, but such teams are likely to be set up before long in accordance with the recommendations made in early 1997 by a High Level Group of police experts in its Action Plan against Organised Crime 8) (see FECL No.51: "High Level Group presents 'Action Plan' against organised crime") and in the framework of enhanced police cooperation through Europol, as provided for by the Amsterdam Treaty. According to Article K.2.2 (Amsterdam Treaty, Title VI), Europol is, among other things, to be enabled within the 5 years following the entry into force of the Treaty to play a leading role in "specific investigative actions" involving several Member States and including operational actions of joint teams comprising representatives of Europol, as well as to "promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol".
Naples II provides for the setting up, by each Member State, of a Central Coordinating Unit. The draft CMACM does not. In practice, this is of little importance, since the Member States already dispose of several such central contact points, such as the Central National Units of Europol, the Interpol National Central Bureaux, and, for the Schengen states, the national SIRENE Bureaux. It is predictable that this plethora of overlapping national central units, including the CCU under Naples II, will gradually merge in to one national central unit for each Member State that will comprise representatives of the judiciary, the police, the customs authorities, and, according to their role in a Member State, also of the secret services and the military. Such a merger has actually been recommended by the High Level Group of police experts in its aforementioned 1997 Action Plan.
The Schengen countries SIRENE Bureaux could serve as a model for such multidisciplinary central units. The national SIRENE staffs are already composed of officials representing different authorities (e.g. police, customs, judiciary, foreigners' administration and state security agencies). What is more, the classified SIRENE Manual 9) outlines the potential for growth of the SIRENEs as follows: "The SIRENEs provide an operational organisation that can prove very useful in certain cases, while at the same time reducing the need for certain Contracting Parties [Member States] to set up various additional structures". (our italics)
To sum it up: Naples II and the CMACM are two new components in a constantly growing muddle of legal and technical instruments aiming at combatting crime, and, more generally, to maintaining what is vaguely called "public order and security". Naples II, the CMACM, Schengen law, the Amsterdam Treaty, the Europol Convention, the 1996 Convention on Extradition, the Joint Action on making participation in a criminal organisation an extraditable offence in all Member States, the planned common rules regarding interception of telecommunications, the Schengen Information System, Europols Information System, the Customs Information System (CIS), Eurodac... All these instruments interact in most intricate ways. Even experts find it increasingly difficult to assess the implications of this synergetic, interactive network. Things are in addition complicated by the fact that the legal instruments in question are "flexible" as regards their future interpretation and implementation, and apply differently in different Member States, according to respective national law, to a plethora of "opt in" and "opt out" clauses, and to bi-lateral frameworks providing for enhanced cooperation between certain Member States.
The complexity of this constantly developing legal labyrinth threatens to blind us to the fact that, despite their patchwork character, all of the legal and technical instruments set up in recent years in the field of Justice and Home Affairs cooperation have one characteristic in common: each of them is in itself a paving stone on what seems to be a one-way road towards the creation of a powerful common European public order and security apparatus, where the traditional border-lines between judiciary, police, customs, intelligence and military will disappear, where executive organs will play a leading role, and where national systems of checks and balances will no longer apply in a "common area of freedom, security and justice".
1. This survey of the CMACM is based on a draft by the British JHA Council-Presidency, of 14.1.98, doc 5202/98 Limite, JUSTPEN 5. The quotations are our translations from the Danish version. 2. See the excellent Memorandum on the draft CMACM, presented by JUSTICE (the British section of the International Commission of Jurists) to the House of Lords, London, October 1997. 3. Quoted from a footnote to Art.15.5 in an earlier draft, of 14.11.97, doc 12323/97 Limite, JUSTPEN 103. 4. Quoted from a K.4 Committee progress report 12323/97,limite, JUSTPEN 103, 14.11.97 on the draft CMACM. 5. According to a footnote in the draft CMACM of 14.11.97, an "explanatory report" on the Convention will specify the various possibilities for procedures in controlled deliveries, and will contain a reference to the European Manual on Controlled Deliveries. 6. Draft CMACM, 14.11.97, doc 12323/97, limite, Justpen 103. 7. Quoted from the K.4 Committee progress report 12323/97, limite, JUSTPEN 103, 14.11.97 on the draft CMACM. 8. High Level Group Action Plan to combat organised crime, 9.4.97, 6276/4/97 Rev 4 Limite JAI 7. 9. SIRENE Manual, 28.3.94, SCH/OR.SIS-SIRENE (92) 26, 9 rev, 7 corr, chapter 3.2.2; our translation from the Danish.