International Criminal Law
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Council of Europe’s tradition of allowing contracting parties to enter reservations
against any provision, stipulates which provisions contain opt-out clauses. Critical
comment has been made regarding the failure to include a provision allowing States
to refuse to execute a request on the ground that it would present a threat to
sovereignty, security and public order. There has also been criticism regarding
resistance to include data protection provisions similar to those found in other Third
Pillar conventions.
57
Whilst the new powers were introduced primarily as a response
to governmental concerns about the growth in cross-border serious and organised
crime, this Convention has been drafted to cover any crime. Although the preamble
points out that States will act in a manner which is compatible with the European
Convention on Human Rights, the body of the Convention does not allow assistance
to be refused on the ground that fundamental rights will be compromised. Speed
and efficiency may be achieved by reducing to an unacceptable level the procedural
guarantees that provide the accused in transnational cases with protection from over-
zealous States. This instrument has subsequently been supplemented by a Protocol
which extends mutual assistance provision to matters related to money laundering
and financial crime.
58
The Convention imposes an obligation on contracting parties to execute requests
for assistance from another EU State as soon as possible. The requested State has a
duty to inform the requesting State if it cannot meet the deadline set for execution in
order that they can agree on any further action. To aid the process of mutual assistance,
contracting parties must identify the competent administrative authorities, the central
authority, the police and customs authorities and the authority with the power to
order the interception of communications. In order to expedite the process of mutual
assistance, procedural documents can be posted directly to the person or body who
can provide the necessary information or sent via the competent authority.
59
Included
with the documents should be a translated summary and a report indicating where
the addressee can seek information about his rights and obligations concerning the
document. Normally, requests for assistance are processed through judicial
authorities but in some cases a request may, and in some circumstances must, be
sent via a central authority.
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For example, requests for the temporary transfer or
transit of prisoners and the sending of information from judicial records must be
sent through the central authority. Urgent requests for assistance can be sent directly
to Interpol or Europol. The police or customs authority in the requested State can be
contacted directly by either the central or the judicial authority in the requesting
State. Contracting parties can opt out of this clause.
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Mutual assistance can be sought
in relation to ‘proceedings brought by administrative authorities’ and for criminal
proceedings relating to a ‘legal person’. Thus requests can relate to administrative
offences and criminal acts committed by corporate bodies. In respect to these
57
See UK Select Committee on the European Union in the House of Lords, July 1998.
58
The Protocol to the Convention on Mutual Assistance in Criminal Matters Between Member States
of the European Union, 2001 OJ C326/01.
59
Convention on Mutual Assistance in Criminal Matters Between Member States of the European
Union, Art 5.
60
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