EU Co-operation General

EU Mutual Assistance Agreements

Introduction

The purpose of the  Mutual Assistance Act 2008 is  to give effect to provisions in seven mutual legal assistance instruments, viz.:

• the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union done at Brussels on 29 May 2000 [the 2000 Convention];
• the Protocol to that Convention done at Luxembourg on 16 October 2001 [the 2001 Protocol];
• the Agreement between the EU and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the 2000 Convention on Mutual Assistance in Criminal Matters and the 2001 Protocol thereto [Agreement with Iceland and Norway];
• the Council Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence [the Framework Decision];
• the Second Additional Protocol of 8 November 2001 to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 [the Second Additional Protocol to the European Convention];
• Articles 49 (excluding paragraph (a) which has been repealed) and 51 of the Convention, signed in Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985 [the Schengen Convention];
• the mutual legal assistance aspects of the Council Decision concerning the signature of an Agreement between the European Union and the United States of America on Extradition and Mutual Legal Assistance in Criminal Matters done at Brussels on 6 June, 2003 [the EUUS Agreement];

The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union supplements and builds on the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters by developing and modernising existing provisions governing mutual assistance between member states of the EU.

The Protocol to the 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union provides for mutual assistance in relation to requests for information on bank accounts and banking transactions. Provision is also made for monitoring of banking transactions.

The Agreement between the EU and the Republic of Iceland and Kingdom of Norway extends the provisions of the 2000 Convention on Mutual Assistance in Criminal Matters and the 2001 Protocol thereto to those states.

The Council Framework Decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence establishes the rules under which a member state of the EU shall recognise and execute in its territory a freezing order issued by a judicial authority of another member state in the framework of criminal proceedings.

The Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters improves and supplements the provisions of the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters and its additional Protocol.

The Agreement between the European Union and the United States of America on Extradition and Mutual Legal Assistance in Criminal Matters improves, supplements and facilitates further cooperation between the countries in relation to both mutual legal assistance and extradition.

Overview of 2008 Act

Part sets out some general matters in relation to the provision of mutual legal assistance.

Part 2 deals with the provision of information and monitoring arrangements in relation to financial transactions. The main purpose of this Part is to set out the procedures for giving effect to the provisions in the 2001 Protocol in relation to financial transactions for criminal investigation purposes.

Part 3 deals with the provision of assistance between member states of the EU in relation to the interception of telecommunications for criminal investigation purposes. This Part gives effect to Articles 17 to 22 of the 2000 Convention.

The purpose of Part 4 is to give effect to the Council Framework Decision of 22 July 2003 on the execution in the EU of orders freezing property or evidence.

Part 5 deals with the enforcement of confiscation and forfeiture orders.

Part 6 deals with the provision of evidence. Provision is made for the transfer of prisoners to give evidence to assist in criminal investigations and for evidence to be given by television and telephone link. Obtaining identification evidence for criminal investigations both inside and outside the State is also provided for in this Part.

Part 7 deals with other forms of assistance. These forms of assistance include the service of documents, a legal basis for the restitution of articles obtained by criminal means to their rightful owners and provision for controlled deliveries both in the State and in other EU and Council of Europe member states.

Part 8 deals with mutual assistance in criminal matters between the State and the United States of America.

General restriction on providing assistance

The 2008 Act sets out the grounds under which mutual assistance will be refused. Assistance will be refused where the Minister considers that granting assistance would be likely to prejudice the sovereignty, security or other interests of the State or would be contrary to public policy.

Assistance will also be refused where there are reasonable grounds for believing that the request was made for the purpose of prosecuting or punishing a person on the basis of his or her sex, race, religion, ethnic origin, nationality, political opinion or sexual orientation or where a person’s position may be prejudiced for any of these reasons.

If there are reasonable grounds for believing that providing the assistance may result in a person being subjected to torture or that it would otherwise contravene the European Convention on Human Rights, assistance will be refused. Furthermore, it will be refused if it would prejudice a criminal investigation or criminal proceedings in the State.

Designated state

The 2008 Act provides for the Minister for Foreign Affairs to designate a state other than a member state (which is defined in ) for the purposes of this Act or parts of this Act. Provision is also made to amend or revoke such an order.

Certain Articles of 2000 Convention and Second Protocol to have force of law. The 2008 Act provides for certain provisions in the 2000 Convention and the Second Additional Protocol to have the force of law in the State.

Articles 4 and 6 of the 2000 Convention — relating to formalities and procedures in the execution of requests and to the transmission of requests — have the force of law in the State. It also provides that Articles 4 and 8 of the Second Additional Protocol — relating to channels of communication and procedure — have the force of law in the State.

Requests (general)

The main purpose of the 2008 Act is to set out procedural matters in relation to requests for mutual legal assistance.

The procedures and formalities to be applied in dealing with requests for mutual legal assistance, including transmission of requests, are those laid out in the relevant international instrument.

The Act will apply only to requests made after the relevant international instrument has entered into force or has been applied between Ireland and the relevant designated state. The Act specifies that a request must be addressed to the Central Authority in the State (unless the relevant international instrument provides otherwise) and that it must be in writing or in a form capable of producing a written record.

It provides for the translation, where appropriate, of requests and related or supporting documentation which is issued from or is received by the State. The Central Authority may accept requests and any supporting or related documents as evidence of the matters mentioned in them unless it has information to the contrary. The Central Authority may seek additional information from the authority from whom the request is received if this is necessary to enable a decision to be made on the request.

The Act specifies that the Minister may postpone action on a request where proceeding with the request might prejudice criminal proceedings or a criminal investigation.  Before deciding to refuse or postpone a request, the Minister will consult the authority from whom the request is received for the purpose of considering whether the request may be granted in part or subject to conditions. Reasons must be given for any postponement or refusal of a request. the Minister must inform an authority from whom a request is received if it is not possible to comply with the request or if a significant delay in complying with the request is likely.

Transmission of evidence

Evidence obtained in compliance with a request must be transmitted to the requesting state as directed by the Minister.  The judge or member of the Garda Siochana concerned will supply any certificate, affidavit or other verifying document for transmission with the evidence referred to .where the evidence consists of documentation, either the original or a copy shall be transmitted and where the evidence consists of any other item, either the item itself or a description, photograph or representation of it will be transmitted.

Central Authority

The 2008 Act specifies that the Minister for Justice, Equality and Law Reform is the Central Authority. The Act describes the functions of the Central Authority as receiving, transmitting and dealing with requests received under the terms of the Bill, with the exception of requests in relation to the interception of telecommunications messages.

The Act provides for the possibility of designation by the Minister of a person or persons to perform specified functions of the Central Authority, and for a subsequent amendment or revocation of that designation. Such people will be recognised as acting for the Central Authority in performing the functions designated. the Minister will inform the General Secretariat of the Council of the European Union of the names of any persons designated.

Spontaneous exchange of information

The 2008 Act gives effect to Article 7 of the 2000 Convention and Article 11 of the Second Additional Protocol.

The 2008 Act makes provision for the Director of Public Prosecutions or the Commissioner of the Garda Siochana to exchange information relating to criminal matters with the competent authority in a designated state. The information may be exchanged without receiving a request to that effect.  conditions may be imposed by the Director of Public Prosecutions or the Commissioner of the Garda Siochana on the use of such information. Conditions may not be applied to the use of the information communicated to a designated state that has made a declaration under Article 11.4 of the Second Additional Protocol unless the designated state knows in advance the nature of the information and has agreed to its being communicated.

Competent authority is defined at the Act as meaning the authority in the designated state appearing to the Director or Commissioner to be the appropriate authority to receive or communicate the information concerned.

European Prosecutors Office

The relationship between the Gardaí (Ireland’s national police force) and the European Public Prosecutor’s Office (EPPO), as established under the Criminal Justice (Miscellaneous Provisions) Act 2023, is defined by a framework for cooperation and assistance in criminal matters. The relevant sections inserted into the 2008 Act detail the legal and procedural obligations for mutual assistance between the Irish State and EPPO.

Application of the 2023 Act (Section 94F):

• This part of the Act applies specifically to criminal matters between Ireland (the State) and the EPPO.
• The Gardaí (through the State) must assist EPPO requests, even if they were made before the enactment of the law, ensuring that prior requests are treated as valid under this Act.

Cooperation and Sharing of Information (Section 94G):

• The Gardaí and State authorities are mandated to cooperate with the EPPO in criminal matters. This includes sharing evidence and information obtained by Irish authorities, as per EPPO’s requests.
• This cooperation can extend to sharing information not only between Ireland and the EPPO but also between EPPO and other relevant EU member states.
• Assistance by the Gardaí cannot be refused simply because the evidence will be shared with the EPPO.

Modification of Terms and Legal Instruments (Section 94H and beyond):

• Legal definitions are adjusted to integrate EPPO requests into Ireland’s legal framework.
• Terms like “member state,” “criminal conduct,” and “criminal investigation” are broadened to include EPPO-specific contexts, meaning the Gardaí are expected to treat EPPO requests similarly to requests from other member states.
• EPPO requests bypass typical international agreements, emphasizing direct cooperation.

Requests from and to EPPO (Section 94K):

• EPPO requests to Irish authorities must be addressed to the Central Authority in Ireland and can be in writing or any form capable of producing a written record. If necessary, the Gardaí may provide additional information to the Minister handling the request.
• The Minister for Justice may postpone or refuse requests only under certain conditions, but must inform EPPO of any delays or refusals and provide reasons.

Operational Modifications:

• Sections 94R–94AV of the Act make specific adjustments to how different sections of the 2008 Act apply in cases involving EPPO. These adjustments include how EPPO can issue warrants, requests for freezing orders, and DNA profiles.
• For example, when dealing with an external freezing order (i.e., freezing assets in a criminal investigation), the reference to a “competent authority” in other states is expanded to include the EPPO, allowing the Gardaí to act on EPPO’s behalf.

Joint Investigation Teams:

• The Criminal Justice (Joint Investigation Teams) Act 2004 has also been amended to include the EPPO as a competent authority, allowing Gardaí to work in joint investigation teams that involve EPPO, reinforcing collaborative cross-border investigations.

Under the 2023 Act, the Gardaí are required to actively cooperate with EPPO in criminal investigations. This cooperation includes providing evidence, facilitating requests, and assisting in the enforcement of orders. The legal framework modifies certain aspects of existing Irish law to accommodate EPPO’s role, making it a competent authority for Irish legal purposes.