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Justification

VIEWS: 10 PAGES: 18

									                  EUROPEAN PARLIAMENT
   COMMITTEE ON CITIZENS' FREEDOMS AND RIGHTS, JUSTICE AND HOME
                              AFFAIRS


13 January 2000                                                                   PE 232.057/40-75


AMENDMENTS 40-75

       DRAFT REPORT by Mr Antonio Di Pietro        (PE 232.057/40-75)
       ON THE DRAFT COUNCIL ACT ESTABLISHING THE CONVENTION ON
       MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE MEMBER
       STATES OF THE EUROPEAN UNION

       (9636/99-C5-0091/1999-1999/0809(CNS) and SN 5060/1999-C5-0331/1999)

           Common position of the Council                                Amendments



                             (Amendment 40 by Mr Cappato and Mr Turco)
                                         Recital 3a (new)

                                                      3a. Bearing in mind in particular that the
                                                      rights of the defendant and the right to a fair
                                                      trial are basic principles which must be
                                                      protected at European level through specific
                                                      and binding instruments,

                                            Justification

The present Convention makes no reference whatsoever to the rights of the defendant, which are
basic principles of the European legal tradition and are protected by the Member States’ legal
systems. However, mutual legal assistance at European level creates an area of European
judicial enquiry and process which is not subject to the jurisdiction of individual Member States
and represents a challenge when it comes to protecting the rights of the defendant. These rights
must therefore be protected under the present Convention or by means of a specific and binding
legal instrument.

                                                                                                Or. it


                             (Amendment 41 by Mr Cappato and Mr Turco)
                                         Recital 4a (new)

                                                      4a. Calling on the Member States constantly
                                                      to improve their respective legal orders and
AM\401666EN.doc                                                                  PE 232.057/40-75
                                                                                            Or. pan.
                                                     legal systems so as to eliminate factors
                                                     causing delays, inefficiencies and violations
                                                     of the European Convention on Human
                                                     Rights, so as to ensure respect for human
                                                     rights and fundamental freedoms and in
                                                     particular the rights of the defendant and the
                                                     right to a fair trial,

                                           Justification

There are still countless failings in the administration of justice in the Member States which
result in serious and persistent violations of human rights and fundamental freedoms, a fact
which the European Court of Human Rights in Strasbourg constantly highlights. The Member
States need to take urgent action to eliminate the factors causing this situation.

                                                                                              Or. it


                       (Amendment 42 by Mr Ceyhun and Ms McKenna)
                                       Article 1(2)

2. Paragraph 1 shall not affect the                  2. Paragraph 1 shall not affect the
application of more favourable provisions in         limitations of the application of this
bilateral or multilateral agreements between         convention to the offences defined in Article
Member States or, as provided for in                 2 of the Convention based on article K.3 of
Article 26(4) of the European                        the EUT on the establishment of a European
Mutual Assistance Convention,                        Police Office of 18 July 1995 (Europol
arrangements in the field of                         Convention)
mutual assistance in criminal matters agreed
on the basis of uniform legislation or of a
special system providing for the reciprocal
application of measures of mutual assistance
in their respective territories.

                                           Justification

There is a lack of definition of the criminal offences covered by the Convention. The scope of
the Convention must be restricted to serious organised crime.
                                                                                           Or. en/it


                       (Amendment 43 by Mr Ceyhun and Ms McKenna)
                                        Article 2

1. Mutual assistance shall also be afforded in       1. Mutual assistance shall also be afforded in
proceedings brought by the administrative            proceedings brought by the competent
authorities in respect of offences which are         authorities in respect of offences covered by
punishable under the national law of the             Article 1 (2) which are punishable under the
requesting or the requested Member State, or         national law of the requesting and the
PE 232.057/40-75                                 2                             AM\401666EN.doc
Or. pan.
both, by virtue of being infrigements of the          requested Member State, or both, by virtue
rules of law, where the decision may give             of being infrigements of the rules of law,
rise to proceedings before a court having             where the decision may give rise to criminal
jurisdiction in particular in criminal matters.       proceedings before a court having
2. Mutual assistance shall also be afforded in        jurisdiction in particular in criminal matters.
connection with criminal proceedings and              2. Mutual assistance shall also be afforded in
procedures as referred to in paragraph 1              connection with proceedings as referred to in
which relate to offences or infringements for         paragraph 1 (6 words deleted) for which a
which a legal person may be held liable in            legal person may be held liable in the
the requesting Member State.                          requesting Member State.

                                            Justification

There is a lack of definition of the criminal offences covered by the Convention. The scope of the
Convention must be restricted to serious organised crime.
                                                                                            Or. en


                           (Amendment 44 by the following Members:
                      Dell’Utri, Ferri, Fiori, Gargani, Musotto and Tajaniff)
                                               Article 2

1. Mutual assistance shall also be afforded           1. Mutual assistance shall also be afforded
in proceedings brought by the administrative          in proceedings in respect of offences which
authorities in respect of offences which are          are punishable under the national law of the
punishable under the national law of the              requesting or the requested Member State, or
requesting or the requested Member State, or          both, by virtue of being infringements of the
both, by virtue of being infringements of the         rules of criminal law.
rules of law, where the decision may give
rise to proceedings before a court having
jurisdiction in particular in criminal matters.
2. Mutual assistance shall also be afforded           2. Deleted.
in connection with criminal proceedings and
procedures as referred to in paragraph 1
which relate to offences or infringements for
which a legal person may be held liable in
the requesting Member State.

                                            Justification

The Convention’s field of application should be restricted to criminal matters.
                                                                                               Or. it


                           (Amendment 45 by the following Members:
                      Dell’Utri, Ferri, Fiori, Gargani, Musotto and Tajaniff)
                                             Article 4(1)

1. Where mutual assistance is afforded and            1. Where mutual assistance is afforded and
AM/401666EN.doc                                   3                               PE 232.057/40-75
provided that such formalities and                     provided that such formalities and
procedures are not contrary to the                     procedures are not contrary to the
fundamental principles of law in the                   fundamental principles of law in the
requested Member State, the Member States              requested Member State, the Member States
shall undertake to comply, unless otherwise            shall undertake to comply, unless otherwise
provided in this Convention, for the                   provided in this Convention, for the
purposes of executing letters rogatory, with           purposes of executing letters rogatory, with
formalities and procedures expressly                   formalities and procedures expressly
indicated by the requesting Member State.              indicated by the requesting Member State.
The requested Member State shall execute               (rest deleted)
the request for assistance as soon as possible
and shall take as full account as possible of
any deadlines set by the requesting Member
State. The requesting Member State shall
explain the reasons for the deadline.

                                             Justification

The formalities and procedures must be provided for and laid down by the Convention and may
not be chosen by the requesting Member State in a totally discretionary manner, with the sole
proviso that they should not be contrary to the ‘fundamental principles of law’, a vague and
general reference with no binding force, unless reference is made to the European Convention
for the Protection of Human Rights and Fundamental Freedoms.

                                                                                                 Or. it


                           (Amendment 46 by the following Members:
                       Dell’Utri, Ferri, Fiori, Gargani, Musotto and Tajaniff)
                                             Article 5(2)

2. Procedural documents may be sent via                2. Procedural documents may be sent via
the competent authorities of the requested             the competent authorities of the requested
Member State only if:                                  Member State only if:
- the address of the person for whom the               - the address of the person for whom the
document is intended is unknown or                     document is intended is unknown or
uncertain, or                                          uncertain, or

- the relevant procedural law of the                   - the relevant procedural law of the
requesting Member State requires proof                 requesting Member State requires proof
other than proof that can be obtained by post          other than proof that can be obtained by post
of the service of the document on the                  of the service of the document on the
addressee, or                                          addressee, or

- it has not been possible to serve the                - it has not been possible to serve the
document by post, or                                   document by post.

- the requesting Member State has justified            - Deleted
reasons for considering that despatch by post
PE 232.057/40-75                                  4                              AM\401666EN.doc
Or. pan.
will be ineffective or is inappropriate.

                                           Justification

It is not clear under what circumstances – in the judgment of the requesting state – despatch by
post may be considered ineffective or inappropriate and what alternative method should be used
to forward the procedural documents in such cases. There are no other options apart from
delivery by hand by a qualified person or via fax.

                                                                                           Or. it


                                  (Amendment 47 by Mr Di Lello)
                                     Article 5(2) fourth indent

- the requesting Member State has justified          - the requesting Member State has indicated
reasons for considering that despatch by post        the reasons why despatch by post may be
will be ineffective or is inappropriate.             ineffective or inappropriate.

                                           Justification

The requesting Member States should not only have reasons to doubt the effectiveness or
appropriateness of despatch by post, but should also be required to state those reasons.

                                                                                           Or. it


                          (Amendment 48 by Mr Cappato and Mr Turco)
                                         Article 5(3)

3. Where there is reason to believe that the         3. (20 words deleted) The document (seven
addressee does not understand the language           words deleted) must be translated into (one
in which the document is drafted, the                of) the language(s) of the Member State in
document – or at least the important                 the territory of which the addressee is
passages thereof – must be translated into           staying. If the authority by which the
(one of) the language(s) of the Member State         procedural document was issued knows that
in the territory of which the addressee is           the addressee understands only some other
staying. If the authority by which the               language, the document – or at least the
procedural document was issued knows that            important passages thereof – must be
the addressee understands only some other            translated into that other language.
language, the document – or at least the
important passages thereof – must be
translated into that other language.

                                           Justification

All procedural documents must automatically be translated into the language of the addressee,
without leaving any scope for discretion, since this may subsequently generate problems.
                                                                                          Or. it
AM/401666EN.doc                                 5                              PE 232.057/40-75
                           (Amendment 49 by the following Members:
                        Dell’Utri, Ferri, Fiori, Gargani, Musotto and Tajani)
                                             Article 6(6)

6. Where, in respect of requests for                    6. Where, in respect of requests for
assistance in relation to proceedings as                assistance in relation to proceedings as
envisaged in Article 2(1) the                           envisaged in Article 2(1) the
competent authority is a judicial authority or          competent authorities of the requesting
a central authority in one Member State and             Member State and the requested Member
an administrative authority in the other                State are criminal justice authorities,
Member State, requests may be made and                  requests may be made and answered directly
answered directly between these authorities.            between these authorities.


                                             Justification:

In order to secure more effective protection of the basic rights of persons under investigation,
direct exchanges of information should be restricted solely to criminal justice authorities.

                                                                                                   Or. it


                            (Amendment 50 by the following Members:
                        Dell’Utri, Ferri, Fiori, Gargani, Musotto and Tajani)
                                          Article 7(3a) (new)

                                                        3a. In every case, the procedures governing
                                                        exchanges of information, the authorities
                                                        which requested and provided it and the
                                                        content of the information should all be
                                                        documented. The document recording this
                                                        information should be included in the file for
                                                        the relevant case and made available to the
                                                        defence.

                                             Justification:

It is necessary to ensure the right of the defence to have at its disposal in the case file all the
details necessary to ascertain the origin and nature of any information gathered.
                                                                                                   Or. it


                           (Amendment 51 by the following Members:
                        Dell’Utri, Ferri, Fiori, Gargani, Musotto and Tajani)
                                             Article 8(1)


PE 232.057/40-75                                   6                               AM\401666EN.doc
Or. pan.
1. At the request of the requesting Member           1. At the request of the requesting Member
State and without prejudice to the rights of         State and without prejudice to the rights of
bona fide third parties, the requested               bona fide third parties, the requested
Member State may place articles obtained by          Member State may place articles which are
criminal means at the disposal of the                the product or proceeds of crime at the
requesting State with a view to their return         disposal of the requesting State with a view
to their rightful owners.                            to their return to their rightful owners.

                                           Justification:

The word ‘obtained’ is not an appropriate legal term. It is preferable to speak of articles which
are the product or proceeds of crime.
                                                                                              Or. it


                         (Amendment 52 by Mr Cappato and Mr Turco)
                                    Article 9(3a) (new)

                                                     3a. If the person held in custody refuses
                                                     consent, he may not be transferred.

                                           Justification:

The transfer of a person held in custody from a prison in one Member State to a prison in
another Member State runs counter to the principle of re-education and re-integration into
society. Lack of knowledge of the foreign language concerned, distance from family and other
considerations which may be grounds for the prisoner’s refusal of consent should be taken
seriously into account.
                                                                                           Or. it

                              (Amendment 53 by Anna Karamanou)
                                        Article 9(4)

4. The period of custody in the territory of         4. The period of custody in the territory of
the requested Member State shall be                  the requested Member State shall be
deducted from the period of detention which          deducted from the period of detention which
the person concerned is or will be obliged to        the person concerned is or will be obliged to
undergo in the territory of the requesting           undergo in the territory of the requesting
Member State.                                        Member State.


                                                     (a) Where the date of expiry of a person’s
                                                     detention falls during the period of transfer,
                                                     the person concerned shall be transferred
                                                     immediately to the state from which he was
                                                     being transferred in order to complete the
                                                     legal formalities for his release.

                                           Justification:

AM/401666EN.doc                                  7                               PE 232.057/40-75
Provision must be made for the situation in which the date for the release of the person
concerned falls during the period of transfer. The person concerned should be released in the
state in which he also served his sentence.
                                                                                      Or. EL


                          (Amendment 54 by Mr Cappato and Mr Turco)
                                         Article 9(5)

5. Articles 11(2) and (3), 12 and 20 of the           5. Articles 11(1), (2) and (3), 12 and 20 of
European Mutual Assistance Convention                 the European Mutual Assistance Convention
and Articles 33, 35 and 46 of the                     and Articles 33, 35 and 46 of the
Benelux Treaty shall apply.                           Benelux Treaty shall apply.

                                            Justification:

The reasons laid down in the European Council’s European Convention on Human Rights as
grounds for refusing the transfer of a prisoner (if the person in custody does not consent, if his
presence is necessary at criminal proceedings pending in the territory of the requested party, if
the transfer is liable to prolong his detention, or if there are other overriding grounds for not
transferring him) should be maintained to provide a minimum level of protection of the rights of
persons held in custody.
                                                                                                Or. it

                                (Amendment 55 by Patsy Sörensen)
                                      Article 10(1)a (new)

                                                      1a. If the witness is a minor, the hearing
                                                      must be held by video conference. The
                                                      minor must be assisted by a person whom he
                                                      or she trusts or by an uninvolved expert.

                                            Justification:

For minors, a hearing is a traumatic experience. Giving evidence by video conference is one way
of avoiding the need for a minor to be heard repeatedly. The minor has the right to be assisted
by a person whom he or she trusts: normally this should be one or both parents. In some
situations – where the minor’s trust in either or both parents has been violated – there must be
provision for an expert to assist the minor.

                                                                                               Or. nl

                              (Amendment 56 by Anna Karamanou)
                                       Article 10(4)

4. The judicial authority of the requested            4. The judicial authority of the requested
Member State shall summon the person                  Member State shall summon the person
concerned to appear in accordance with the            concerned to appear in accordance with the

PE 232.057/40-75                                  8                              AM\401666EN.doc
Or. pan.
forms laid down by its legislation.                  forms laid down by its legislation.
                                                     (a) It shall invite the expert or witness to
                                                     attend the hearing as laid down by its
                                                     legislation.
                                                     (b) It shall inform him of his right to refuse a
                                                     hearing by video or teleconference.
                                                     (c) It shall inform him that it is possible to
                                                     request to be heard directly by the judicial
                                                     authority of the requesting state on its
                                                     territory.

                                           Justification

This amendment is a matter of form. It is intended to clarify the rights of the person to be heard.

                                                                                              Or. EL


                         (Amendment 57 by Mr Cappato and Mr Turco)
                                      Article 10(5)(a)

5. With reference to hearing by video                5. With reference to hearing by video
conference, the following rules shall apply:         conference, the following rules shall apply:
                                                     (a) a judicial authority of the requested
(a) a judicial authority of the requested                Member State shall be present during
    Member State shall be present during                 the hearing, assisted by an interpreter if
    the hearing, where necessary assisted by             he does not know the language
    an interpreter, and shall also be                    concerned, and shall also be responsible
    responsible for ensuring both                        for ensuring both identification of the
    identification of the person to be heard             person to be heard and respect for the
    and respect for the fundamental                      fundamental principles of the law of the
    principles of the law of the requested               requested Member State. If the
    Member State. If the judicial authority              judicial authority of the requested
    of the requested Member State judges                 Member State judges that during the
    that during the hearing the fundamental              hearing the fundamental principles of
    principles of the law of the requested               the law of the requested Member State
    Member State are infringed, it shall                 are infringed, it shall immediately take
    immediately take the necessary                       the necessary measures for the
    measures for the continuation of the                 continuation of the hearing
    hearing in accordance with the said                  in accordance with the said principles;
    principles;


                                           Justification:

Questions relating to translation and interpretation are of paramount importance in securing
proper judicial cooperation.
                                                                                           Or. it

AM/401666EN.doc                                  9                                PE 232.057/40-75
                         (Amendment 58 by Mr Cappato and Mr Turco)
                                      Article 10(5)(d)

(d)     at the request of the requesting             (d) at the request of the requesting
Member State the requested Member State              Member State the requested Member State
shall ensure that the person to be heard is          shall ensure that the person to be heard is
assisted by an interpreter, if necessary;            assisted by an interpreter, if he does not
                                                     know the language concerned;

                                           Justification:

Questions relating to translation and interpretation are of paramount importance in securing
proper judicial cooperation.
                                                                                           Or. it


                           (Amendment 59 by the following Members:
                       Dell’Utri, Ferri, Fiori, Gargani, Musotto and Tajani)
                                        Article 10(9a) (new)

                                                     9a. The rights of the defence shall always be
                                                     guaranteed in cases where evidence obtained
                                                     by video conference may be used against a
                                                     person under investigation.

                                           Justification:

This amendment is designed to ensure that the rights of the defendant are fully observed when
video conferences are used.
                                                                                           Or. it


                           (Amendment 60 by the following Members:
                       Dell’Utri, Ferri, Fiori, Gargani, Musotto and Tajani)
                                              Article 11

1. If a person is in one Member State's              Deleted
territory and has to be heard as a witness or
expert by a judicial authority of another
Member State the latter may, where its
national law so provides, request assistance
of the former Member State to enable the
hearing to take place by telephone
conference, as provided for in paragraphs 2
to 5.
2. A hearing may be conducted by
telephone conference only if the witness or
expert agrees that the hearing take place by
that method.
PE 232.057/40-75                                10                             AM\401666EN.doc
Or. pan.
3. The requested Member State shall agree
to the hearing by telephone conference
where this is not contrary to its fundamental
principles of law.
4. An application for a hearing by
telephone conference shall contain, in
addition to the data referred to in Article 14
of the European Convention on
Mutual Assistance and Article 37 of the
Benelux Treaty, the name of the judicial
authority and of the persons who will be
conducting the hearing and an indication that
the witness or expert is willing to take part
in a hearing by telephone conference.
5. The practical arrangements regarding the
hearing shall be agreed between the
Member States concerned. When agreeing
such arrangements, the requested Member
State shall undertake to:
–      notify the witness or expert
concerned of the time and the venue of the
hearing;
–      ensure the identification of the
witness or expert;
–       verify that the witness or expert
agrees to the hearing by telephone
conference.
The requested Member State may make its
agreement subject, fully or in part, to the
relevant provisions of Article 10(5) and (8).
Unless otherwise agreed, the provisions of
Article 10(7) shall apply mutatis mutandis.

                                            Justification:

Hearings by telephone violate the principle of a fair hearing since they do not allow direct
observation of the witness or expert.
                                                                                               Or. it




                          (Amendment 61 by Mr Cappato and Mr Turco)
                                        Article 11(1)

1. If a person is in one Member State's               1. If a person is in one Member State's
territory and has to be heard as a witness or         territory and has to be heard as a witness or

AM/401666EN.doc                                  11                              PE 232.057/40-75
expert by a judicial authority of another             expert by a judicial authority of another
Member State the latter may, where its                Member State the latter may, where its
national law so provides, request assistance          national law so provides, and in accordance
of the former Member State to enable the              with the provisions on the rights of the
hearing to take place by telephone                    defendant, request assistance of the former
conference, as provided for in paragraphs 2           Member State to enable the hearing to take
to 5.                                                 place by telephone conference, as provided
                                                      for in paragraphs 2 to 5.

                                            Justification

This amendment is designed to ensure that the rights of the defendant are respected.
                                                                                             Or. it


                           (Amendment 62 by the following Members:
                             Dell’Utri, Ferri, Gargani and Musotto)
                                    Article 13(3)(ba)(new)

                                                      (ba) magistrates who perform the duties of
                                                      judges in the Member States concerned may
                                                      not be members of the team.

                                            Justification

A clear distinction should be drawn between the duties of investigators and judges.

                                                                                             Or. it


                                 (Amendment 63 by Mr Di Lello)
                                    Article 13(9)(c) and (d)

(c) for preventing an immediate and serious                             Deleted
threat to public security, and without
prejudice to subparagraph (b) if
subsequently a criminal investigation is
opened;
(d) for other purposes to the extent that this
is agreed between Member States setting up
the team
                                            Justification

With regard to guarantees, it is unacceptable to use such highly general and imprecise terms as
‘other purposes’ and ‘immediate and serious threat to public security’, to describe cases in
which the information obtained may be used. All the above stipulations would be superfluous
and the investigating teams could, while apparently pursuing a specific objective, use the
information obtained for other purposes.
                                                                                             Or. it
PE 232.057/40-75                                 12                           AM\401666EN.doc
Or. pan.
                          (Amendment 64 by Mr Cappato and Mr Turco)
                                           Title III

   Title III                                                             Deleted
(Articles 15 to 20)

                                            Justification

The interception of telecommunications is a highly sensitive issue which has already previously
been a source of conflict between the European Parliament and the Council (ENFOPOL
documents concerning the interception of communications) and further reflection and debate is
needed at European, national and institutional level and with reference to public opinion.
                                                                                            Or. it


                            (Amendment 65 by he following Members:
                              Dell’Utri, Ferri, Gargani and Musotto)
                                            Article 15

For the purpose of the application of the             For the purpose of the application of the
provisions of Articles 16, 17 and 18,                 provisions of Articles 16, 17 and 18,
"competent authority" shall mean a judicial           "competent authority" shall mean a criminal
authority, or, where judicial authorities have        justice authority. (rest deleted)
no competence in this area, an equivalent
competent authority, specified pursuant to
Article 21(1)(e) and acting in the framework
of a criminal investigation.

                                            Justification

In order to restrict the scope of the Convention to infringements of criminal law provisions,
competence should rest solely with a criminal justice authority.


                                                                                                Or. it


                           (Amendment 66 by the following Members:
                             Dell’Utri, Ferri, Gargani and Musotto)
                                         Article 16(3)(e)

(e) the desired duration of the interception;         (e) the (one word deleted) duration of the
and                                                   interception; and




AM/401666EN.doc                                  13                                PE 232.057/40-75
                                            Justification

The duration of the interception must be specified in advance. The uncertainty introduced by the
term ‘desired’ could allow abuses and violations of fundamental rights.

                                                                                               Or. it


                                 (Amendment 67 by Mr Di Lello)
                                       Article 16(3)(f)

(f) if possible, the provision of sufficient          (f) the provision of any technical data
technical data to ensure that the request can         available to ensure that the request can be
be met (in particular the relevant network            met.
connection number).

                                            Justification

The provision of all data which the requesting state has at its disposal would prevent any further
request for data and any unnecessary delays in executing the request for assistance.

                                                                                               Or. it


                           (Amendment 68 by the following Members:
                             Dell’Utri, Ferri, Gargani and Musotto)
                                     (Article 16(9a) (new))

                                                      9a. The interception shall in all cases by
                                                      ordered by a judge.

                                            Justification

The ‘infringement’ of a fundamental right – even if grounds are given – may be ordered only by
a judge.
                                                                                          Or. it




PE 232.057/40-75                                 14                             AM\401666EN.doc
Or. pan.
                           (Amendment 70 by the following Members:
                             Dell’Utri, Ferri, Gargani and Musotto)
                                          Article 21(1)

1. When giving the notification referred to           1. When giving the notification referred to
in Article 23(2), each Member State shall             in Article 23(2), each Member State shall
make a statement naming the authorities               make a statement naming the authorities
which, in addition to those already                   which, in addition to those already
indicated in the European Mutual Assistance           indicated in the European Mutual Assistance
Convention and the Benelux Treaty, are                Convention and the Benelux Treaty, are
competent for the application of this                 competent for the application of this
Convention and the application between the            Convention and the application between the
Member States of the provisions on mutual             Member States of the provisions on mutual
assistance in criminal matters of the                 assistance in criminal matters of the
instruments referred to in Article 1(1),              instruments referred to in Article 1(1).
including in particular:
(a)     the competent administrative                  (rest deleted)
authorities or services within the meaning of
Article 2(1), if any,
(b)     one or more central authorities for
the purposes of applying Article 6 as well as
the authorities competent to deal with the
requests referred to in Article 6(8)(b),
(c)     the police or customs authorities
competent for the purposes of Article 6(5),
if any,
(d)    the administrative authorities
competent for the purposes of Article 6(6), if
any, and
(e)     the authority or authorities competent
for the purposes of the application of
Articles 16 and 17 and Article 18(1) to (4).

                                           Justification

This matter must be governed by the Member States’ constitutional provisions. The legitimacy of
the body assigned to deal with the request represents a guarantee that basic rights will be
respected.

                                                                                            Or. it




AM/401666EN.doc                                  15                            PE 232.057/40-75
                         (Amendment 71 by the following Members:
                           Dell’Utri, Ferri, Gargani and Musotto)
                                   Article 23(1a) (new)

                                                   1a. The Member States shall ensure that,
                                                   when adopting the instruments necessary for
                                                   the application of this Convention, respect
                                                   for the fundamental rights deriving from the
                                                   Convention for the Protection of Human
                                                   Rights and Fundamental Freedoms is
                                                   guaranteed, and in particular:
                                                   - the right not to be deprived of freedom
                                                   except in the cases explicitly laid down in
                                                   Article 5 of the Convention
                                                   - the right of a person to be informed
                                                   promptly, in a language which he
                                                   understands, of the reasons for his arrest and
                                                   of any charges against him, to be brought
                                                   promptly before a judge and to be tried
                                                   within a reasonable time,
                                                   - the rights of the defendant and in particular
                                                   equality between the prosecution and the
                                                   defence,
                                                   - the neutrality and impartial judge,
                                                   - the presumption of innocence until proven
                                                   guilty

                                         Justification

These rights, which are formally enshrined in the Convention for the Protection of Human Rights
and Fundamental Freedoms, are not fully respected in some Member States.
                                                                                            Or. it



                        (Amendment 72 by Mr Cappato and Mr Turco)
                                      Article 23(2)

                      This amendment does not apply to the English text.


                        (Amendment 73 by Mr Cappato and Mr Turco)
                                  Article 23(6a) (new)

                                                   This convention shall not enter into force
                                                   until a legally binding instrument on the
                                                   rights of the defendant or a convention on
                                                   the rights of the defendant has entered into
                                                   force, and only in and between those

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Or. pan.
                                                       Member States which have ratified both
                                                       instruments.

                                             Justification

 Since the rights of the defendant represent a fundamental and essential principle of the
 European legal tradition, the entry into force of this convention in and between the Member
 States must be subject to the entry into force of a legally binding instrument - possibly a
 convention - on the rights of the defendant.

                                                                                                Or. it


                          (Amendment 74 by Mr Cappato and Mr Turco)
                                 Draft legislative resolution
                                 Operative provisions (new)

                                                       1.     Rejects the Council’s proposal;

                                                       2.     Calls on the Council to submit a new
                                                              proposal incorporating into the
                                                              present convention the rights of the
                                                              defendant or to adopt a legally
                                                              binding instrument, possibly a
                                                              convention, on the rights of the
                                                              defendant;

                                                       3.     Instructs its President to forward this
                                                              position to the Council.


                                             Justification

 The present convention pays no regard whatsoever to the impact of mutual assistance on the
 rights of the defendant. It touches on highly sensitive issues such as telephone interception and
 the application of new technologies to investigations and trials, and involves Europol and the
 setting up of transnational task forces. The present version of the convention raises problems of
 form and content which require more extensive consideration from the Member States and the
 Council.
                                                                                                Or. it


                         (Amendment 75 by Mr Ceyhun and Ms McKenna)
                                  Draft legislative resolution
                                       paragraphs 1 to 4

1.   Approves the Council proposal as                  1.     Calls on the Council to redraft the
     amended;                                                 Convention on Mutual Assistance in
                                                              Criminal Matters between the States
 2. Calls on the Council to alter its proposal                of the European Union, in particular
 AM/401666EN.doc                                  17                               PE 232.057/40-75
   accordingly;                                     Article 1 and Article 2.
                                                    (Rest deleted)
3. Calls on the Council to notify Parliament
   if it intends to depart from the text
   approved by Parliament;

4. Asks to be consulted again if the
   Council intends to amend the proposal
   substantially;

                                                                                Or. en




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Or. pan.

								
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