Second Additional Protocol to the European Convention on mutual assistance in criminal matters:Article 17 Cross-border observations

Second Additional Protocol to the European Convention on mutual assistance in criminal matters

Article 17 Cross-border observations

Geldend

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1.

Police officers of one of the Parties who, within the framework of a criminal investigation, are keeping under observation in their country a person who is presumed to have taken part in a criminal offence to which extradition may apply, or a person who it is strongly believed will lead to the identification or location of the above-mentioned person, shall be authorised to continue their observation in the territory of another Party where the latter has authorised cross-border observation in response to a request for assistance which has previously been submitted. Conditions may be attached to the authorisation.

On request, the observation will be entrusted to officers of the Party in whose territory it is carried out.

The request for assistance referred to in the first sub-paragraph must be sent to an authority designated by each Party and having jurisdiction to grant or to forward the requested authorisation.

2.

Where, for particularly urgent reasons, prior authorisation of the other Party cannot be requested, the officers conducting the observation within the framework of a criminal investigation shall be authorised to continue beyond the border the observation of a person presumed to have committed offences listed in paragraph 6, provided that the following conditions are met:

a)

the authorities of the Party designated under paragraph 4, in whose territory the observation is to be continued, must be notified immediately, during the observation, that the border has been crossed;

b)

a request for assistance submitted in accordance with paragraph 1 and outlining the grounds for crossing the border without prior authorisation shall be submitted without delay.

Observation shall cease as soon as the Party in whose territory it is taking place so requests, following the notification referred to in a. or the request referred to in b. or where authorisation has not been obtained within five hours of the border being crossed.

3.

The observation referred to in paragraphs 1 and 2 shall be carried out only under the following general conditions:

a)

The officers conducting the observation must comply with the provisions of this article and with the law of the Party in whose territory they are operating; they must obey the instructions of the local responsible authorities.

b)

Except in the situations provided for in paragraph 2, the officers shall, during the observation, carry a document certifying that authorisation has been granted.

c)

The officers conducting the observation must be able at all times to provide proof that they are acting in an official capacity.

d)

The officers conducting the observation may carry their service weapons during the observation, save where specifically otherwise decided by the requested Party; their use shall be prohibited save in cases of legitimate self-defence.

e)

Entry into private homes and places not accessible to the public shall be prohibited.

f)

The officers conducting the observation may neither stop and question, nor arrest, the person under observation.

g)

All operations shall be the subject of a report to the authorities of the Party in whose territory they took place; the officers conducting the observation may be required to appear in person.

h)

The authorities of the Party from which the observing officers have come shall, when requested by the authorities of the Party in whose territory the observation took place, assist the enquiry subsequent to the operation in which they took part, including legal proceedings.

4.

Parties shall at the time of signature or when depositing their instrument of ratification, acceptance, approval or accession, by means of a declaration addressed to the Secretary General of the Council of Europe, indicate both the officers and authorities that they designate for the purposes of paragraphs 1 and 2 of this article. They subsequently may, at any time and in the same manner, change the terms of their declaration.

5.

The Parties may, at bilateral level, extend the scope of this article and adopt additional measures in implementation thereof.

6.

The observation referred to in paragraph 2 may take place only for one of the following criminal offences:

—

assassination;

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murder;

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rape;

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arson;

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counterfeiting;

—

armed robbery and receiving of stolen goods;

—

extortion;

—

kidnapping and hostage taking;

—

traffic in human beings;

—

illicit traffic in narcotic drugs and psychotropic substances;

—

breach of the laws on arms and explosives;

—

use of explosives;

—

illicit carriage of toxic and dangerous waste;

—

smuggling of aliens;

—

sexual abuse of children.

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