Explanatory Report on the European
Convention on Mutual Legal Assistance in Criminal Matters
206
indicates that the
Convention was designed to supplement rather than replace existing co-operative
arrangements. Informal methods of co-operation include: Memoranda of
Understanding, which are non-legally binding written agreements setting out an
undertaking to provide the assistance requested, indicating the procedures to be
199 See USA-Switzerland MLAT, Art 18(5).
200
Ibid,
Art 37(3).
201
USA v D Sturman; R Levine; R Sturman; and M Kaminsky,
951 F 2d 1466 (1991), 6th Cir, US Ct of
Appeals.
202 USA-Switzerland MLAT, Art 2(1)(a) and (5).
203
US v D Sturman; R Levine; R Sturman; and M Kaminsky,
951 F 2d 1466 (1991), 6th Cir, US Ct of Appeals,
p 1482.
204
Ibid,
p 1483.
205
Ibid,
p 1484.
206 1969 report, Council of Europe.
International Criminal Law
262
followed and the grounds for refusing a request for assistance; and mutual
administrative assistance which allows for the delivery of information between
investigating agencies on a voluntary basis. This procedure requires the consent of
the person holding the information.
207
The methods by which requests for
information are transmitted through the international police networks of Interpol
and Europol are discussed in some detail in the next chapter. Undoubtedly, police
officers engage in less formal methods of information and evidence exchange.
208
In addition to launching new conventions on extradition and mutual legal
assistance, the EU has taken several other important initiatives. Activities under the
Third Pillar of the TEU address the field of judicial co-operation in criminal matters.
It is relevant whether mutual legal assistance measures come under the Third Pillar
of the TEU or the Treaty establishing the European Communities. Third Pillar bodies
are subject to less stringent control than community bodies. It is of note that Europol
and Eurodac are not subject to the same protection regime as First Pillar bodies.
Several new initiatives arose as a result of the European Council meeting in Tampere.
Thus the JHA Council has given its approval for the setting up of a European public
prosecutions unit which will be located in The Hague, operating alongside Europol.
The formation of a Eurojust unit will operate with a management team of prosecutors,
magistrates and police officers drafted in from Member States; each participant can
seek information from their relevant national authorities and have access to the SIS.
209
When acting in their own State, members will be bound by national rules of
procedure. However, when operating in another State:
Each Member State shall define the nature and extent of the powers it grants its
national members in its own territory. The other Member States shall undertake to
accept and recognise the prerogatives thus conferred.
210
These initiatives raise concerns about public accountability. Eurojust reports from
the unit to the JHA Council and the European Parliament are less likely to be as
extensive as reports from national prosecuting authorities to national bodies.
211
The
European Council endorsed the principle of mutual recognition of judicial decisions
at Tampere, which is in line with other EC policies designed to promote free
movement,
212
and considered that it should apply to judgments and other decisions
of judicial authorities. To promote the free movement of prosecutions, it is proposed
to replace the current system of sending requests for assistance through a central
authority with a directly enforceable European Enforcement Order. Other
developments have included the issuing of European arrest warrants in extradition
cases and mutual recognition of final judgments by criminal courts. While the creation
of simplified procedures for judicial co-operation assist prosecuting authorities in
207 For further discussion, see
op cit,
Murray and Harris, note 1, Chapter 14.
208 See, eg,
R v Aujla
[1998] 2 Cr App R 16.
209 Draft decision contained in the Joint Initiative Setting up Eurojust, Art 9(2).
210
Ibid,
Art 8(2).
211 For further criticism, see (2000)
Statewatch,
No 3/4, June-August 2000, Vol 10.
212 For a general discussion on free movement, see P Mathijsen,
A Guide to European Union Law,
2000,
London: Sweet & Maxwell.
Chapter 9: Mutual Legal Assistance
263
transnational cases, the removal of traditional procedural safeguards for the
defendant raises issues regarding fair trial rights. The need for national parliamentary
scrutiny of Third Pillar proposals is essential since under Title VI of the TEU there is
no effective role for the European Parliament. Concerns have been voiced regarding
this lack of scrutiny and accountability.
213
213 See JUSTICE,
Submission to the House of Lords European Communities Committee: Report on the Rules
and Regulations Governing EUROPOL,
May 1997. See also
The Scrutiny of European Business,
Select
Committee on European Legislation, 27th Report, July 1996.
CHAPTER 10
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