No Final Agreement on Convention on Mutual Assistance in Criminal Matters

Luxembourg blocks agreement while it wants to hold grip on the kind of information it exchanges with other member states; compromise on articles about crossborder interception.

The European Council on Justice and Home Affairs on monday didn't reach final agreement on the controversial Convention on Mutual Assistance in Criminal Matters. However, they reached agreement on the articles that make it possible to intercept subjects on the national territory of another Member State without seeking the technical assistance of the latter. Luxembourg blocked a final decision, because it wants to hold its banksecrecy out of the Convention.

For more than three years, the member States of the European Union delibareted on the draft Convention. Most arguments centred on the articles related to interception. First, problems arose over the tapping of the latest generation of satellite-based mobile telephones. Italy argued that countries which have the ground stations for satellite telephone services on their territory, should be consultated whenever another member state wants to intercept calls made using the network, even if this could be done without the assistance of the state hosting the ground station - the so called remote 'approach'. In this, national service providers are able to directly intercept calls transmitted by the Italian ground station

The only satellite based mobile telephone service in Europe had its basis in Italy (Iridum however, just got bankrupt). Italy considered it a breach of its sovereignity, if it was not consulted on these interceptions. Besides that, Italy raised constitutional problems. It demanded guarantees that member states intercepting Iridium-communications, wouldn't break Italian law, that for instance forbids the investigation of members of parliament. Therefore, Italy took the view that each interception had to be authorised through International letters of request send to them.

The other member states disagreed. They thought the 'remote appraoch' didn't infringe the rights of Italy. Italy merely hosts the groundstation and has no legal responsibility for the interception of telecommunications made via the ground station. They were in favour of one single, general order, given by Italy to its ground station to adjust its structures in order to allow the autonomous activation of interception by the national service providers and the automatic transmission thereto if the conversations intercepted.

The solution found is that there is no obligation for countries to force grounds-stations on theire territory to make their system intercepteble by a remote approach, but that it is an option to do so.

Another major problem was raised by the article that makes it possible to intercept subjects on the natiol territory of another member state without seeking the technical assistance of the latter. 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, refused 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 English secret services, however, have also the task to fight 'organised crime'. The dividing line between these two activities is more blurred than in most other EU member states.

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.' By this, Great Britain doesn't have to fear intervention with its secret service activities.

Another unresolved problem was what it ment 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. A compromise was found in the stipulation that member states had to react within 96 hours. Within this time they could prohibit interception and the use of the already intercepted material. The compromise found is that if after four days, and in some cases eight days, there is still no answer, this implies silent improval.

If a country forbids the interception, it has to stop. But the country that already intercepted material, can still use this information for court in cases where there is a threat of 'public order and national security', even if the country where the interception took place, forbids it. What these definition exactly means is not clear. Drugsrelated cases will fall under it, that much is for sure. Already intercepted material in no way have to be destroyed. So that information can be used in further investigations. (see also EU wants to collect terrorism related information on the Internet)

Thereby, the ministers of justice and Home Affairs neglected the opinion of the European Parliament. The parliament voted in february for the deletion of the interception-articles. According to a report of member of the European Parliament, Di Pietro, '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.'

If Luxembourg withdraws the reservation it made on the Convention, it can be finally signed on the next meeting of the Council of Justice and Home Affairs. Which is scheduled for the end of May. Than, the Convention has to be ratified by the national parliaments of the member states.