European Parliament Rejects Bordercrossing Interception of Telecommunication

Interception opens "legal minefield".

The Committee on Citizens' Freedoms and Rights, Justice and Home Affairs of the European Parliament wants to delete the controversial article 18 of the European draft convention on Mutual Assistance in Criminal Matters. This article provides for the possibility of intercepting subjects on the national territory of another Member State without seeking the technical assistance of the latter.

The proposal to delete article 18 is put forward in a draft-report on the Convention on Mutual Assistance in Criminal Matters, the European Parliament will be voting on next thursday. According to rapporteur Antonio Di Pietro (Italy, Group of European Liberal, Democrat and Reform Party), the controversial article leads the European Union into 'a legal minefield'. Article 18 makes it possible for Member States to intercept subjects on the national territory of another Member State without seeking the technical assistance of the lattter. This means bordercrossing direct eavesdropping.

The Member States are however divided on this possibility. Some Member States wish, in order to be able to monitor investigations of that kind, to ensure that they require prior official authorisation. Other Member States, especially Great Britain, refuse such a notification. Great Britain is able tot intercept communications in other Member States, thanks to its cooperation in the worldwide interception network called Echelon. Great Britain does not want the interference of the other European Member States in the activities of its secret services. The secret services, however, have also the task to fight 'organised crime'.

Great Britain has agreed to inform Member States if such an interception is carried out 'in the course of criminal investigations'. A criminal investigation means, accordig to the latest version of the draft convention, 'an investigation following the commission of a specific criminal offence, including attempts in so far as they are criminalised under national law, in order to identify and arrest, charge, prosecute or deliver judgement on those responsible.' This definition is still under consideration.

Another unresolved problem is what it means if a notified State does not respond to the notification. Some Member States are in favour of the principle that silence implies improval; others prefer that silence constitute a decision to prohibit the interception. Antonio Di Pietro wants article 18 to be deleted. In its 'justification', the report states:

Elsewhere in the report, Di Pietro states: 'This article leads us into a legal minefield in which some Member States wish to maintain the possibility of pursuing completely independent investigations in other Member States to ensure their own national security (by means of secret agents?) and dispensing with the time-consuming business of obtaining permission from the other countries' judicial authorities.' This could lead, according to Di Pietro, to 'legalising the grey activities of the secret services.'

On the other hand, article 18 would require the Member States to 'make their own activities in the area of 'precentive security' subject to the involvement of the judicial authorities when the latter, by definition, should only be involved after offences have been commited.' Therefore, mister Di Pietro thinks 'the time is not yet right to include this problematic area in Community legislation'. 'It is a very delicate matter which needs to be considered further, and careful consideration of the relevant provisions leads to the conclusion that it would be unwise to pass legislation at European level at this stage,' accordig to Antonio Di Pietro. The opinion of the European Parliamant is not binding. The final decision will be taken by the European Council of Justice and Home Affairs.