Approves, For Ratification, The Protocol To The Convention On Mutual Assistance 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, Drawn Up By The Council In

Original Language Title: Aprova, para ratificação, o Protocolo da Convenção relativa ao Auxílio Judiciário Mútuo em Matéria Penal entre os Estados Membros da União Europeia, elaborado pelo conselho nos termos do artigo 34.º do Tratado da União Europeia, elaborado pelo Conselho no

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334277636a4d314c5667755a47396a&fich=ppr35-X.doc&Inline=false

1 MOTION for a RESOLUTION paragraph 35/X For the achievement of the objectives of the European Union, it is important to improve the rules governing mutual legal assistance in criminal matters between the Member States of the European Union. In particular, the adoption of additional measures in the field of mutual assistance in criminal matters for the purpose of combating crime, including, in particular, organized crime, money laundering and financial crime. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following resolution: Approving, for ratification, the Protocol to the Convention on mutual assistance 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 Luxembourg, on 16 October 2001, the text of the authenticated version in Portuguese language if published in annex.

Seen and approved by the Council of Ministers of 14 July 2005 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency 2 PROTOCOL to the CONVENTION on MUTUAL ASSISTANCE 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 3 the HIGH CONTRACTING PARTIES to the present Protocol , Member States of the European Union, referring to the Council Act of ... establishing the Protocol to the Convention on mutual assistance in criminal matters between the Member States of the European Union, having regard to the conclusions of the Tampere European Council of 15 and 16 October 1999, and the need to implement, without delay, in order to create an area of freedom , security and justice, taking into account the recommendations made by the experts in mutual evaluation reports drawn up on the basis of joint action 97/827/JHA of 5 December 1997 establishing a mechanism for evaluating the application and implementation at national level of international undertakings in the fight against organised crime 1, convinced of the need for additional measures in the field of mutual assistance in criminal matters for the purpose of combating crime, including, in particular, organized crime, money laundering and financial crime, 1 OJ L 344 of 15.12.1997, p. 7. 4 HAVE AGREED UPON the FOLLOWING PROVISIONS, which shall be attached to and shall form part of the Convention on mutual assistance in criminal matters between the Member States of the European Union of 29 May 2000 2, hereinafter referred to as "Convention on Mutual legal assistance in criminal matters of 2000": article 1 request for information about accounts 1. Each Member State shall, under the conditions laid down in this article, take the necessary steps, in response to a request submitted 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 seat in your territory and, if so, provide all data pertaining to identified accounts.

To the extent that they are requested and that may be provided within a reasonable period of time, the information will also include the accounts for which the person subject to legal proceedings have power of appointment.

2. the obligation set out in this article shall apply only to the extent that the information in the possession of the Bank that holds the account.

3. the obligation set out in this article shall apply only if the investigation relate to – an offence punishable by a custodial sentence or detention order restricting a maximum period of at least 4 years in the requesting State and not less than 2 years in the requested State, or – an offence referred to in article 2 of the Convention of 1995 on the establishment of a European Police Office (Europol Convention) , or in the annex to that Convention with the new amended, or 2 OJ C 197 of 12.7.2000, p. 1. 5-an offence referred to in the 1995 Convention on the protection of the European Communities ' financial interests, the Protocol of 1996 or in the second 1997 Protocol of the said Convention, to the extent that cannot be covered by the Europol Convention.

4. The applicant authority indicated in your request:-the reasons why it considers that the information requested may be of considerable importance for the purposes of the investigation of the offence;

-the reasons that lead to assume that the accounts are kept in banks in the requested Member State and, to the extent possible, which banks that may be involved;

-any information available which may facilitate the execution of the request.

5. Member States may make the execution of a request under this article of the same conditions that apply to requests for search and seizure.

6. The Council, in accordance with paragraph 2 (c)), article 34 of the Treaty on European Union, may decide to extend the scope of application of paragraph 3.

Article 2 request for information on banking transactions 1. At the request of the requesting State, the requested State shall provide details relating to specified bank accounts and bank transactions that have been carried out in a given period through one or more accounts specified in the request, including details of all the accounts of the source and destination of the funds. 2. the obligation set out in this article shall apply only to the extent that the information in the possession of the Bank that holds the account. 3. The requesting Member State indicated in your request the reasons why the requested information deemed relevant for the purposes of investigating the offence. 6 4. Member States may make the execution of a request under this article of the same conditions that 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, it can control, in a given period, the banking operations that are being carried out through one or more accounts specified in the request, communicating the results to the requesting Member State. 2. At your request, the requesting Member State shall state the reason considers the requested information relevant for the purposes of the investigation of the offence. 3. The decision of control is taken, in each particular case by the competent authorities of the Member State in which recognition is sought taking into account the national legislation of that State. 4. The practical arrangements relating to the control shall be agreed between the competent authorities of the requesting and requested Member States.

Confidentiality article 4 Member States shall take the necessary measures to ensure that banks do not reveal bank customer concerned nor to third parties that information has been transmitted to the requesting State in accordance with articles 1, 2 or 3, if it is an ongoing investigation.

Article 5 Obligation to report If, during the execution of a request for mutual assistance, the competent authority of the requested Member State considers that it is appropriate to undertake investigations not initially foreseen, or which could not be specified at the time of the request, the authority shall inform the requesting authority without delay, so that it can make new arrangements. 7 article 6 supplementary Requests mutual assistance 1. Where the competent authority of the requesting Member State present a request for mutual legal assistance to complement a previous application, it is not obliged to provide the information already provided in the original application. The additional request shall contain the information necessary for identification of the original application. 2. where, in accordance with the provisions in force, the competent authority which has submitted a request for mutual legal assistance to participate in the execution of the request in the requested Member State may, without prejudice to paragraph 3 of article 6 of the Convention on Mutual legal assistance in criminal matters of 2000, submit a supplementary request directly to the competent authority of the Member State addressed, while in this State.

Article 7 banking secrecy no Member State can invoke banking secrecy to justify your refusal to cooperate with regard to a request for mutual legal assistance in criminal matters of another Member State.

Article 8 tax Offences 1. Mutual legal assistance may not be refused solely on the ground that the request concerns an offence which the requested Member State considers as fiscal offence. 2. If a Member State makes the execution of a request for search or seizure of the offence that gave rise to the request is also punishable in your legislation, this condition is considered satisfied in respect of the offences referred to in paragraph 1, if the offence correspond to an offence of the same nature in your legislation. 8 the request may not be refused on the ground that the law of the requested Member State does not impose the same kind of fees or taxes or contain the same type of rules as regards taxes, customs and currency exchange that the legislation of the requesting Member State. 3. Is repealed article 50 of the Convention implementing the Schengen Agreement.

Article 9 political Offences


1. For the purposes of mutual assistance between Member States, no offence may be regarded by the requested Member State as a political offence, an offence connected with a political offence or an offence inspired by political motives. 2. To undertake the notification referred to in paragraph 2 of article 13, any Member State may declare that it will apply paragraph 1 only in respect of: a) the offences referred to in articles 1 and 2 of the European Convention on the Suppression of terrorism of 27 January 1977; and (b)) the offences for conspiracy or association – which correspond to the description of behaviour referred to in paragraph 4 of article 3 of the Convention of 27 September 1996 relating to extradition between Member States of the European Union-to the practice of one or more offences referred to in articles 1 and 2 of the European Convention on the Suppression of terrorism. 3. The reservations submitted under article 13 of the European Convention on the Suppression of terrorism do not apply to mutual legal assistance between Member States.

Article 10 Submission of refusals to the Council and involvement of Eurojust 1. If a request is refused on the basis of:-in point (b)) of article 2 of the European Convention on mutual legal assistance or in paragraph 2 (b)), of article 22 of the Treaty of Benelux, or 9-in article 51 of the Convention implementing the Schengen Agreement or article 5 of the European Convention on mutual legal assistance, or – in paragraph 5 of article 1 or in paragraph 4 of article 2 of this Protocol , and the requesting Member State persists in your application and cannot be found a solution, the refusal and the reasons for them are sent to the Council for information by the requested Member State, for possible evaluation of the functioning of judicial cooperation between the Member States. 2. the authorities of the requesting Member State may report to Eurojust, when this has been created, any problem that arises with regard to the execution of a request relating to the provisions referred to in paragraph 1, for a possible practical solution, in accordance with the provisions of the instrument establishing Eurojust.

Article 11 Reservations No reservations to this Protocol shall be permitted other than those expressly provided for in paragraph 2 of article 9.

Article 12 territorial Application this Protocol shall apply in Gibraltar when the Convention on Mutual legal assistance in criminal matters of 2000 have effect in that territory, in accordance with your article 26.

Article 13 entry into force 1. This Protocol shall be subject to approval by the Member States in accordance with their respective constitutional requirements. 2. Member States shall notify the Secretary-General of the Council of the European Union constitutional formalities required for the adoption of this Protocol. 10 3. This Protocol shall enter into force on the eight Member States concerned 90 days after the notification referred to in paragraph 2, by the eighth Member State of the European Union at the date of adoption by the Council of the Act establishing this Protocol, which has carried out this formality. However, if the Convention on Mutual legal assistance in criminal matters of 2000 has not entered into force by that date, this Protocol shall enter into force on the same date on which this Convention enters into force. 4. Any notification by a Member State after the entry into force of this Protocol in accordance with paragraph 3 has the effect, 90 days of such notification, the entry into force of this Protocol between the Member State concerned and the Member States in which this Protocol is already in force. 5. Before the entry into force of this Protocol in accordance with paragraph 3, any Member State may, in the notification referred to in paragraph 2 or at any later date, declare that it will apply this Protocol in their relations with Member States which have made the same declaration. These statements will begin to take effect 90 days from the date of filing. 6. Without prejudice to paragraphs 3 to 5, the entry into force or application of this Protocol do not produce effects on relations between any two Member States before the date of entry into force or application of the Convention on Mutual legal assistance in criminal matters of 2000 between these Member States. 7. The present Protocol shall apply to acts of mutual assistance initiated after the date of your entry into force or is applicable in accordance with paragraph 5 between the Member States concerned.

Article 14 accession of new Member States 1. The present Protocol is open for accession by all States which become members of the European Union and to join the Convention on Mutual legal assistance in criminal matters of 2000. 2. The present Protocol is authentic in the language of the acceding State, drawn up by the Council of the European Union. 3. The instruments of accession shall be deposited with the depositary. 4. This Protocol shall enter into force for each State which accedes, 11 90 days from the date of the deposit of its instrument of accession or on the date of entry into force of this Protocol if the latter has not yet entered into force at the expiry of the said period of 90 days. 5. paragraph 5 of article 13 shall apply to acceding States if this Protocol is not yet in force at the time of the deposit of its instrument of accession. 6. Without prejudice to paragraphs 4 and 5, the entry into force or application of this Protocol in relation to the acceding State, not take effect before the entry into force or application of the Convention on Mutual legal assistance in criminal matters of 2000 for this State.

Article 15 position of Iceland and Norway article 8 consists of measures that change or they are based on 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 those two States with the 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 article 8 of the Association Agreement, the arrangement referred to in article 15 shall enter into force with respect to Iceland and Norway 90 days from the date of receipt by the Council and the Commission of the notification pursuant to paragraph 2 of article 8 of the Association Agreement, the fulfilment of their constitutional requirements in the reciprocal relations of the two States with any Member State to which this Protocol has entered into force by virtue of paragraph 3 or paragraph 4 of article 13 2. In cases in which this Protocol enters into force for a Member State at a later date to the date of entry into force of the provision referred to in article 15 3 OJ L 176 of 10.7.1999, p. 36. 12:00 pm relation to Iceland and Norway, this same provision shall also apply in the reciprocal relations between Member States and Iceland and Norway. 3. The disposal referred to in article 15 is not binding in any way for Iceland and Norway before the entry into force of the provisions referred to in paragraph 1 of article 2 of the Convention on Mutual legal assistance in criminal matters of 2000 for these two States. 4. Without prejudice to paragraphs 1, 2 and 3, the provision referred to in article 15 shall enter into force with respect to Iceland and Norway not later than on the date of entry into force of this Protocol for the 15th EU Member State at the date of adoption by the Council of the Act establishing this Protocol.

Article 17 Depositary the Secretary-General of the Council of the European Union is the depositary of this Protocol.

The depositary shall publish in the official journal of the European communities the relevant information on the evolution of the situation in terms of adoption or accessions, declarations, and any other notification concerning this Protocol.

In WITNESS WHEREOF, the Plenipotentiaries undersigned signed signed this Protocol.

Done at Luxembourg, 16 October 2001 to, in a single copy in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, all texts being equally authentic, the original being deposited in the archives of the General Secretariat of the Council of the European Union. The Secretary-General shall transmit a certified copy to each Member State.