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MOTION FOR RESOLUTION No. 35 /X

For the achievement of the objectives of the European Union, it is important to improve the standards that

regulate mutual legal aid in criminal matters between the Member States of the

European Union.

In particular, the adoption of supplementary measures in the field of aid is imposed.

mutual in criminal matters for the purpose of the fight against crime, including, in

special, organised crime, money laundering and crime

financial.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following motion for a resolution:

Approves, for ratification, the Protocol of the Convention on the Judicial Aid

Mutual in Criminal Matters between the Member States of the European Union, drawn up by the

Council pursuant to Article 34 of the Treaty on European Union, signed in the

Luxembourg, on October 16, 2001, the text of which in the authenticated version in language

Portuguese publishes in annex.

Seen and approved in Council of Ministers of July 14, 2005

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs

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PROTOCOL

OF THE CONVENTION ON MUTUAL LEGAL AID IN

CRIMINAL MATTER

AMONG THE MEMBER STATES OF THE EUROPEAN UNION, DRAWN UP

BY THE COUNCIL PURSUANT TO ARTICLE 34 OF THE TREATY OF THE

EUROPEAN UNION

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THE HIGH CONTRACTING PARTIES in this Protocol, Member States of the

European Union,

REFERRING to the Act of the Council of ....., which sets out the Protocol of the

Convention on Mutual Legal Aid in Criminal Matters between States-

Members of the European Union,

HAVING REGARD TO THE Conclusions of the European Council of Tampere,

of 15 and October 16, 1999, and the need to implement them without delay, by

form to create a space of freedom, of security and justice,

HAVING REGARD to the recommendations formulated by the experts in the reports of

mutual evaluation elaborated on the basis of Joint Action 97 /827/JAI of the Council,

of December 5, 1997, which creates a mechanism for evaluating the application and

concretization at the national level of international commitments on fighting

against organised crime 1 ,

CONVICTS of the need for supplementary measures in the field of mutual aid

in criminal matters for the purpose of the fight against crime, including in particular the

organised crime, money laundering and financial crime,

1 OJ L 344, 12/15/1997, p. 7.

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HAVE AGREED TO THE FOLLOWING PROVISIONS, which will be attached and will be part of

member of the Convention on Mutual Legal Aid in Criminal Matters between

the Member States of

European Union, May 29, 2000 2 , hereinafter referred to as the " Convention on the

Mutual Legal Aid of 2000 ":

ARTICLE 1.

Request for information on bank accounts

1. Each Member State, under the conditions laid down in this Article, takes the

necessary measures to, in response to a request sent by another Member State,

determine whether a natural or legal person subject to criminal investigation holds or

controls one or more accounts of any kind in any bank situated in your

territory and, if so, provide all the data regarding the identified accounts.

To the extent that they are requested and that they can be provided within a time limit

reasonable, the information will also include the accounts for which the person subject to

judicial process has proxy.

2. The obligation set out in this Article shall only apply in so far as the

information find themselves in the possession of the bank that keeps the account.

3. The obligation set out in this Article shall only apply if the investigation is

relate to

-an offence punishable with deprivative penalty of freedom or security measure

restrictive of freedom of maximum duration not less than 4 years in the State

applicant and not less than 2 years in the requested State, or

-an offence referred to in Article 2 of the 1995 Convention on the creation of

a European Police Office (Europol Convention), or in the Annex to that

Convention with the new wording that was given to it, or

2 OJ C 197, 7/12/2000, p. 1.

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-an offence referred to in the 1995 Convention on the Protection of Interests

Financial of the European Communities, in the Protocol of 1996 or in the Second

Protocol of 1997 of the same Convention, in so far as it cannot be

covered by the Europol Convention.

4. The requesting authority shall refer to its request:

-the reasons why you believe that the requested information can redress from

considerable importance for the purposes of the investigation of the infringement;

-the reasons that lead her to assume that the accounts are held in banks

of the requested Member State and, as far as possible, which of the banks which

may be involved;

-any available information that may facilitate the execution of the application.

5. Member States may make the implementation of an application to the shelter conditional

of this article of the same conditions as they apply to requests for search and seizure.

6. The Council, in accordance with Article 34 (2) (c) of the Treaty on the Union

European, it may decide to extend the scope of paragraph 3.

ARTICLE 2.

Request for information on bank transactions

1. At the request of the requesting State, the requested State shall provide the details

relative to the specified bank accounts and to the banking transactions that have been

carried out in a given period through one or several specified accounts in the

request, including details on all the source and destination accounts of the funds.

2. The obligation set out in this Article shall only apply in so far as the

information find themselves in the possession of the bank that keeps the account.

3. The applicant Member State indicates in its application the reasons for which

considers the requested information for the purpose of investigation of the offence to be relevant.

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4. Member States may make the implementation of an application to the shelter conditional

of this article of the same conditions as they apply to requests for search and seizure.

ARTICLE 3.

Applications for control of banking operations

1. All Member States undertake to ensure that, at the request of another

Member State, this may control, in a given period, the banking operations

which are being carried out through one or several accounts specified in the application,

communicating the respective results to the requesting Member State.

2. In its application, the requesting Member State shall state the reason why

considers the requested information relevant for the purpose of investigation of the offence.

3. The decision to control is taken, in each specific case, by the authorities

competent Member State required, taking into account the national legislation of that

State.

4. Practice rules relating to control shall be agreed between the authorities

competent of the requesting Member States and required.

ARTICLE 4.

Confidentiality

Member States take the necessary measures to ensure that banks do not

disclose to the banking customer concerned nor to third parties that the information has been transmitted

to the requesting State pursuant to Articles 1, 2 or 3, nor that it is found in

course an investigation.

ARTICLE 5.

Obligation to inform

If, in the course of the implementation of an application for mutual aid, the competent authority of the

Member State required to consider that it is appropriate to proceed with investigations not

expected initially or which could not be specified at the time of the application,

that authority shall inform the requesting authority without delay, in order that this may

carry out new representations.

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ARTICLE 6.

Supplementary requests for mutual aid

1. Where the competent authority of the requesting Member State presents

a request for mutual legal aid supplementary to a previous application, does not stay

thank you to provide the information already provided in the initial application. From the request

supplementary must appear in the information required for identification purposes

of the initial request.

2. Where, in the terms of the provisions in force, the competent authority which

has filed a request for mutual legal aid to participate in the execution of the application in the

Member State required, may, without prejudice to Article 6 (3) of the Convention

on the Mutual Legal Aid of 2000, submit a supplementary application

directly to the competent authority of the requested Member State, while if

finds in that state.

ARTICLE 7.

Banking secrecy

No Member State may invoke bank secrecy to justify its refusal to

cooperation with regard to a request for mutual legal aid from another state-

Member.

ARTICLE 8.

Tax offences

1. Mutual legal aid may not be refused only on the grounds of

that the application relates to an offence which the requested Member State considers

as a tax offence.

2. If a Member State makes it conditional on the execution of a search request or

apprehension of the condition of the offence which gave rise to the application being equally punishable

in its legislation, that condition considers itself to be satisfied, with respect to the offences

referred to in paragraph 1, if the offence corresponds to an infringement of the same nature

in your legislation.

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The application may not be refused by the fact that the legislation of the Member State required

not to impose the same type of fees or taxes nor to contain the same type of

regulation in the matter of fees and taxes, customs and foreign exchange that the legislation

of the requesting Member State.

3. Article 50 of the Convention of Application of the Schengen Agreement is repealed.

ARTICLE 9.

Political offences

1. For the purposes of mutual legal aid between Member States, none

infringement may be considered by the Member State required as a political offence,

infringement related to political offence or offence inspired by reasons

politicians.

2. When proceeding with the notification referred to in Article 13 (2), any State-

Member may declare that it will apply paragraph 1 only in relation:

a) to the offences referred to in Articles 1 and 2 of the European Convention for the

Repression of Terrorism of January 27, 1977;

and

b) to the offences by conspiracy or association -which correspond to the description of the

behaviour referred to in Article 3 (º4) of the Convention of September 27

of 1996 on extradition between Member States of the European Union-for the

practice of one or more offences referred to in articles 1 and 2 of the Convention

European for the Repression of Terrorism.

3. The reservations made pursuant to Article 13 of the European Convention for the

Repression of Terrorism does not apply to mutual legal aid between states-

Members.

ARTICLE 10.

Sending refuss to the Council and involvement of Eurojust

1. If an order is refused on the basis of:

(b) in Article 2 (b) of the European Convention on Legal Aid

Mutual or in Article 22 (2) (b) of the Benelux Treaty, or

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- in Article 51 of the Convention Implementing the Schengen Agreement or in Article 5 para.

of the European Convention on Mutual Legal Aid, or

- in Article 1 (5) or in Article 2 (4) of this Protocol,

and the applicant Member State persists in its application and cannot be found

solution, the decision to refuse and the respective justification are sent to the Council, to

information, by the requested Member State, for possible evaluation of the operation

of judicial cooperation between the Member States.

2. The authorities of the requesting Member State may communicate to Eurojust,

when this has been created, any problem that arises with regard to the execution

of an application relating to the provisions referred to in paragraph º1, for an eventual

practical solution, in accordance with the provisions of the instrument creating Eurojust.

ARTICLE 11.

Reservations

Reservations are not admitted to this Protocol in addition to the expressly

provided for in Article 9 (º2).

ARTICLE 12.

Territorial application

This Protocol shall only apply in Gibraltar when the Convention on the

Mutual Legal Aid of 2000 to produce effects in that territory, in the terms of its

article 26.

ARTICLE 13.

Entry into force

1. This Protocol shall be subject to approval by Member States, of agreement

with the respective constitutional formalities.

2. Member States shall notify the Secretary General of the Council of the Union

European fulfillment of the constitutional formalities required for the approval of the

this Protocol.

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3. This Protocol shall enter into force in the eight Member States to which it says

respect ninety days from the notification referred to in paragraph 2, by the 8th

State, Member of the European Union on the date of the adoption by the Council of the Act which

sets out the present Protocol, which has proceeded to that formality. However, if the

Convention on Mutual Legal Aid of 2000 has not entered into force

on that date, this Protocol shall enter into force on the same date on which that

Convention coming into force.

4. Any notification made by a Member State after the entry into force

of this Protocol pursuant to paragraph 3 shall, in effect, ninety days from that

notification, the entry into force of this Protocol between the Member State concerned

and the Member States in which the present Protocol is already in force.

5. Prior to the entry into force of this Protocol in accordance with paragraph 3, any

Member State may, when proceeding with the notification provided for in paragraph 2 or on any date

later, declare that it shall apply this Protocol in its relations with the States-

Members who have made identical statement. These statements will begin to produce

effects ninety days from the date of the respective deposit.

6. Without prejudice to paragraphs 3 a to 5, the entry into force or the application of the present

Protocol does not produce effects on relations between any two Member States

prior to the date of entry into force or the application of the Convention on Aid

Mutual Judiciary of 2000 among those Member States.

7. This Protocol shall apply to acts of mutual legal aid initiated

after the date of its entry into force or is applicable pursuant to paragraph 5 between the States-

Members in question.

ARTICLE 14.

Accession of new Member States

1. This Protocol shall be open to the accession of all States which become

members of the European Union and who acceded to the Convention on the Legal Aid

Mutual of 2000.

2. The present Protocol shall be authentic in the language of the acceding State, in the elaborated version

by the Council of the European Union.

3. The instruments of accession shall be deposited with the depositary.

4. The present Protocol shall enter into force, in relation to each State which it adheres to,

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ninety days from the date of the deposit of the respective instrument of accession, or in the

date of entry into force of this Protocol, if the latter has not yet entered into force

in the term of the said period of ninety days.

5. Article 13 (5) shall apply to acceding States if the present Protocol

is not yet in force at the time of the deposit of the respective instrument of

accession.

6. Without prejudice to paragraphs 4 and 5, the entry into force or the application of the present

Protocol in relation to the acceding State, produces no effect before the entry into force

or of the application of the Convention on Mutual Legal Aid of 2000

relatively to that state.

ARTICLE 15.

Position of Iceland and Norway

Article 8 consists of measures that change or are grounded in the provisions

referred to in Annex A to the Agreement concluded by the Council of the European Union with the

Republic of Iceland and the Kingdom of Norway concerning the association of these two States à

implementation, application and development of the Schengen acquis, hereinafter referred to as

"Association Agreement" 3

ARTICLE 16.

Entry into force for Iceland and Norway

1. Without prejudice to the provisions of Article 8 of the Membership Agreement, the provision to

Referring to Article 15 comes into force in relation to Iceland and Norway 90 days to

count from the date of receipt by the Council and the Commission of the notification, pursuant to the

Article 8 (2) of the Association Agreement, the fulfilment of the respective

constitutional formalities, in the reciprocal relations of the two states with any

Member State for which the present Protocol has already entered into force by force of the

n. 3 or paragraph 4 of Article 13 (4)

2. In cases where this Protocol enters into force for a Member State

at a date subsequent to the date of entry into force of the provision referred to in Article 15.

3 OJ L 176, 7/10/1999, p. 36.

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in relation to Iceland and Norway, that same provision will henpart equally

applicable in the reciprocal relations between the Member State concerned and Iceland and the

Norway.

3. The provision referred to in Article 15 shall not, in any case, be binding on

Iceland and Norway prior to the entry into force of the provisions referred to in paragraph 1

of Article 2 of the Convention on Mutual Legal Aid of 2000 relatively

to these two states.

4. Without prejudice to the provisions of paragraph 1, 2 and 3, the provision to which the

article 15 shall come into force in relation to Iceland and Norway at the latest on the date of

entry into force of this Protocol for the fifteenth Member State of the Union

European at the date of the approval by the Council of the Act establishing the present

Protocol.

ARTICLE 17.

Depositary

The Secretary General of the Council of the European Union shall be a depositary of this Protocol.

The depositary publishes in the Official Journal of the European Communities the information

relevant on the evolution of the situation in terms of adoptions or adhesions, the

statements, as well as any other notification relating to this Protocol.

IN FÉ THAN, the undersigned plenipotentiaries apt their signatures

at the end of this Protocol.

Made in Luxembourg, on October 16, 2001, in single copy, in the languages

German, Danish, Spanish, Finnish, French, Greek, Irish, Italian,

Dutch, Portuguese and Swedish, all texts making equally authentic, being the original

deposited in the archives of the General Secretariat of the Council of the European Union. The

Secretary-General shall refer a certified copy to each Member State.