| Model [bilateral] Police Co-operation
Agreement |
|
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XXX
and
XXX
Hereinafter referred to as the Parties,
Desirous of strengthening their police co-operation capacities,
Aware of the need to create a privileged co-operation space between them,
Wishing to make good use of their membership of the International Criminal
Police Organization - INTERPOL, thereby strengthening the services provided
by that Organization,
Aware of the need for police co-operation to respect human rights,
Deeming it useful to be able to share their expertise and experience in police
matters,
Have agreed as follows
Note
These provisions are suggested as guidelines and may be changed substantially
according to the wishes of the Parties concerned. It does, however, seem important
for the preamble to mention that the Agreement is part of the system of co-operation
set up by INTERPOL, and that the Parties are INTERPOL Member States. Furthermore,
the reference to human rights explains the provisions concerning the protection
of the information exchanged. This reference is necessary in any case in the
light of Articles 2
and 3
of INTERPOL's Constitution.
Definitions
For the purposes of this Agreement, "right of observation" shall
mean the possibility available to police officers of one Party to observe, in
the territory of the other Party and in accordance with the conditions defined
in Article 10 of the present Agreement, the movements
of an individual who is the subject of a police investigation.
For the purposes of this Agreement, "right of pursuit" shall mean
the possibility available to police officers of one Party to pursue an individual
with a view to his apprehension in the territory of the other Party, under the
conditions defined in Article 11 of the present Agreement.
Note
The model gives two definitions. Although this section is not strictly necessary,
it means that both Parties can be sure they are interpreting certain terms
in the same way. Further definitions can be included if required.
| Chapter I - General
Provisions |
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The Parties hereby establish an Agreement on police co-operation.
Note
This Article situates the Agreement. It is a police agreement
and the decision not to mention "criminal police" or "judicial
police" was based on the fact that police co-operation goes beyond those
limits. Indeed, Parties may find themselves co-operating on forensic science
matters, particularly in the area of disaster victim identification, for example.
- The present Agreement comes within the framework of the co-operation
system set up by the ICPO-INTERPOL, and the Parties are INTERPOL Member States.
- The aims of the Agreement are to:
- Create a privileged police co-operation space between the Parties;
- Set up machinery to facilitate co-operation and to create specific operational
structures for that purpose.
Note
Article 2 expressly situates the Agreement within the INTERPOL
co-operation system and this is the special characteristic of an agreement
based on this model. The Agreement is part of the dynamic nature of the Organization
and as such contributes to its development. The reference to INTERPOL's co-operation
system provides added value for member countries of the Organization which
can benefit from its structure and resources, even in their bilateral relations
(provided these relations respect the terms of INTERPOL's Constitution).
- Without prejudice to Article 5 below, the INTERPOL National
Central Bureaus (hereinafter referred to as the NCBs) shall act as a liaison
channel between the various law enforcement services of the Parties.
-
The NCBs' telecommunications equipment shall be used for co-operation under
the terms of the present Agreement.
-
In order to facilitate the co-operation covered by the present Agreement,
each Party may, if necessary, request the assistance of the Sub-Regional
Bureau for [specify].
-
The law enforcement services referred to in paragraph (1) shall be:
- as regards [Party A]: [list of services]
- as regards [Party B]: [list of services]
Note
The reference to the NCBs is natural in the light of Article
2. NCBs must be the main channel for co-operation and for the implementation
of the bilateral agreement. Hence the sentence stating that their telecommunications
equipment shall be used, which means that the INTERPOL network can also
be used for bilateral relations. Should the NCBs be unable to fulfil this
role effectively, the Parties would have to decide on how to improve the
NCBs or how to keep them informed of the activities of the services designated
to act as co-ordinators in their place.
The reference to a Sub-Regional Bureau (SRB) is optional: for co-operation
to be effective, both Parties should be attached to the same SRB (where
there is one) or the Parties may choose not to involve the SRB.
If they wish, the Parties may specify which services are authorized
to act under the terms of the co-operation agreement (paragraph (4)). This
paragraph enables the Parties to provide for co-operation to involve services
such as the customs authorities or the judicial authorities directly. This
encourages multidisciplinary co-operation in police matters, where the Parties'
legal systems allow this.
| Chapter II - Exchange
of Information |
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- The Parties undertake to ensure that, when requested, their police authorities
shall, in compliance with national legislation and within the limits of their
responsibilities, communicate to each other information for preventing ordinary
law crime, locating offenders and bringing them to justice. This Article shall
not apply where the national legislation of the requested Party stipulates
that the request has to be made to the judicial authorities.
- Paragraph (1) shall not prevent the Parties, in compliance with their national
legislation, from communicating to each other, on their own initiative, potentially
useful information, particularly in the interests of maintaining law and order
or protecting victims.
Note
This Article details the framework for the exchange of information
which is restricted by each Party's national legislation and by the competence
of their judicial authorities. The Article has been drafted in general terms
and can be adapted if co-operation is to be restricted as far as the exchange
of information is concerned (for example, limited to law enforcement services
and/or to the categories of offences covered by the Agreement). The general
principle is that, subject to the note under Article
3, NCBs must be as directly involved as possible in the exchange of information.
This Article also provides for some information to be communicated automatically,
in particular with a view to preventing any threat to law and order or to
protecting the interests of victims. The fact that offences are referred to
as "ordinary law crime" is essential because it is a direct reference
to the scope of INTERPOL's action as laid down in Article
2(b) and Article
3 of the Organization's Constitution.
- Requests for information and replies to such requests shall be communicated
through the Parties' NCBs.
- Where the request cannot be made in good time by the above procedure or
where circumstances so demand, it may be addressed by the competent service
of the requesting Party directly to the competent service of the requested
Party, which may reply directly. In such cases, the requesting authority shall
as soon as possible inform its country's NCB of its direct application.
- Requests for information and replies to such requests transmitted in application
of paragraph (2) above shall be communicated to the NCB of each Party.
Note
This Article is flexible enough to provide for the use of a
more direct channel than through the NCBs. It can sometimes be useful (and
quicker) for the relevant law enforcement services (i.e. those responsible
for a case) to communicate with each other directly, without using the NCBs
as intermediaries. However, in the interests of centralizing information and
keeping all parties informed, the NCBs must be notified when this procedure
is used, which often happens when the right of observation/pursuit is exercised
(see below). It is indeed essential to centralize information.
The purpose of centralizing information exchanged under the Agreement
is to make it available to services or States not directly involved in a particular
exchange. These services or States can then use this information for other
investigations which may turn out to be linked to those at the basis of the
initial exchange. Centralizing information is the only way to establish and
identify such links. To be truly effective, bilateral or regional co-operation
must be part of a worldwide co-operation system. This is why police co-operation
agreements should be part of INTERPOL's co-operation system (see Articles
2 and 3 above), which enables all
information exchanged to be centralized and used to maximum effect.
The requesting Party (the NCB or some other competent law enforcement service)
shall guarantee the level of confidentiality attributed to information by the
requested Party (the NCB or other competent law enforcement service).
Note
This provision must be read alongside the following chapter
which deals with data protection. This Article concerns all data, whether
it is personal or not. It should however be borne in mind that non-nominal
information should be exchanged as freely as possible and that the level of
confidentiality of such information should be low enough to encourage wide,
multidisciplinary co-operation. Services which are not strictly "police"
services (customs, judiciary, etc.) should have access to such information.
It is up to the Parties to determine the measures to be used (technical means,
professional secrecy, etc.) to ensure confidentiality.
| Chapter III - Protection
of Personal Data |
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- In application of the present Agreement, the transmission and processing
of personal data shall be subject to the national legislation of each Party
and to the relevant rules in force within INTERPOL.
- Without prejudice to paragraph (1) above, the following rules shall apply
to the processing of personal data transmitted in application of the present
Agreement:
- The data may be used by the recipient Party solely for the purposes
for which the present Agreement stipulates that such data may be transmitted;
such data may be used for other purposes only with the prior authorization
of the Party which transmitted the data and in compliance with the legislation
of the recipient Party.
- Data may only be used by judicial or police authorities or any other
law enforcement authority designated by the Party concerned, a list of
which shall be communicated to the other Party.
- The Party transmitting the data shall be obliged to ensure the accuracy
thereof; should it note that the data is inaccurate or should not have
been transmitted, the recipient Party must be informed thereof forthwith;
the latter shall then be obliged to correct or destroy the data concerned.
- A Party may not plead that another Party had transmitted inaccurate
data in order to avoid its liability under its national legislation vis-à-vis
an injured party.
- The transmission and receipt of personal data shall be recorded. Parties
shall communicate to each other a list of authorities or services authorized
to consult such records.
- Communication of and access to data shall be governed by the national
legislation of the Party which has been asked for such communication or
access by the person concerned. However, data may only be communicated
to that person with the authorization of the Party which originally supplied
the data.
- Each Party shall monitor the use made of information communicated by the
other Party in order to prevent and sanction any abuse which could infringe
on individual rights. For this purpose, Parties may designate a specific independent
supervisory authority.
- The assessment body set up by virtue of Article 19
below shall be competent to deal with any problems arising from the application
or interpretation of the provisions of the present Article. If necessary,
this body shall consult with the bodies created by the Parties in application
of paragraph (3) above.
Note
Report No. 19, adopted by the General Assembly at its 44th
session in Buenos Aires in 1975, did not include any provisions on the protection
of personal data. What was not considered essential at the time - particularly
in the light of the standard of technology - has now become vital, and a police
co-operation agreement which does not set out standards in this area is inconceivable.
This is particularly important since the model agreement is an integral part
of INTERPOL's co-operation system. Hence references to Parties' national standards
and to the rules of the Organization.
While due consideration is given to States' sovereignty in this Article,
it basically reproduces INTERPOL's main data protection rules (which are similar
to those used by other international bodies such as the Council of Europe
and the United Nations). This is a way of ensuring that data is accurate,
that it is used for the correct purpose, and that the Party which supplied
the information retains control over how it is used, so that information exchanged
and processed in conformity with this Article can be legitimately accepted
and used in judicial proceedings. The text makes explicit reference to "the
relevant rules in force within INTERPOL". Countries may follow the example
of Hungary, which has included in its national legislation a provision to
the effect that the police shall exchange information with INTERPOL's Member
States and General Secretariat according to the rules of that Organization's
Constitution and its operating principles, pointing out that membership of
INTERPOL constitutes an international undertaking of obligation (see Act LIV
of 1999 on Co-operation and Information Exchange with the Law Enforcement
Network of the European Union and the International Criminal Police Organization).
Paragraph (2,d) establishes the principle that it is the Party using the
data which is responsible. To avoid any legal loopholes in such an agreement,
this provision establishes a responsibility towards injured parties. Even
if a Party assumes responsibility towards an injured party, it can always
take action against the other Party if the wrong was due to the latter communicating
inaccurate information. Paragraph (2,e) provides for a sort of logbook of
operations (transmission and receipt of information) which records the sender,
the recipient and any individuals who have accessed the system. Lastly, paragraphs
(3) and (4) provide for the introduction of control mechanisms to ensure that
co-operation is correctly implemented and to prevent misuse of information.
| Chapter IV - Right
of Observation and Pursuit |
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- 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 referred to in paragraph
(8) below, shall be authorized to pursue their observation in the territory
of the other Party where the latter has authorized cross-border observation
in response to a request for assistance which has previously been submitted.
The request for assistance and the authorization shall be forwarded through
the NCB or directly by the authority referred to in paragraph (7) below. Under
some circumstances, conditions may be attached to the authorization.
- On request, the observation will be entrusted to officers of the Party
in whose territory it is carried out.
- Where, for urgent reasons, prior authorization of the other Party cannot
be requested, the officers conducting the observation shall be authorized
to continue beyond the border the observation of a person as referred to in
paragraph (1) above. Exercising the right of observation is subject to the
following general conditions:
- The NCB of the Party in whose territory the observation is to be continued
must be notified immediately, during the observation, that the border
has been crossed.
- A request for judicial assistance submitted in accordance with paragraph
(1) above and outlining the grounds for crossing the border without prior
authorization shall be submitted without delay.
- When a Party notifies the NCB that the border has been crossed, it
should mention whether the officers conducting the observation are carrying
their service weapons.
- Observation shall cease as soon as the Party in whose territory it is taking
place so requests, following the notification referred to in (3,a) or the
request referred to in (3,b) or where authorization has not been obtained
[twelve] hours after the border was crossed.
- The observation referred to in this Article shall be carried out only under
the following general conditions:
- 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.
- Except in the situations provided for in paragraph (3) above, the officers
shall, during the observation, carry a document certifying that authorization
has been granted.
- The officers conducting the observation must be able at all times to
provide proof that they are acting in an official capacity.
- 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.
- Entry into private homes and places not accessible to the public shall
be prohibited.
- The officers conducting the observation may neither challenge nor arrest
the person under observation.
- All observation 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.
- The officers referred to in paragraphs (1), (2), (3) and (5) above shall
be:
- as regards [Party A]: [list of authorized officers]
- as regards [Party B]: [list of authorized officers]
- The authority empowered to authorize observation in application of paragraph
(1) above shall be:
- as regards [Party A]: [authority responsible for authorizing
observation]
- as regards [Party B]: [authority responsible for authorizing observation]
Option 1
- Observation as referred to above may take place only in connection
with offences likely to result in extradition proceedings between the Parties.
Option 2
- Observation as referred to above may take place only in connection
with the following offences:
[list of offences]
Note
Observation operations enable police officers to gather important information
for their investigations. It therefore seems essential that such an agreement
should provide for this form of co-operation. However, it is a procedure which
affects sovereignty and needs to be extremely well organized, hence the length
of this Article and the detailed provisions. The above conditions may be adapted
according to what the Parties are prepared to agree on. For example, although
observation should obviously only be considered for relatively serious offences,
such as those which might result in extradition (see paragraph (1)), it is
not necessarily essential to list those offences which would result in the
implementation of this procedure (see paragraph (8)). There are two options
available: either Parties consider that observation may be carried out for
extraditable offences (option 1), or Parties draw up a list of offences (option
2). Such a list is usually less extensive, and could give rise to difficulties
since, in practice, it is impossible to cover all possibilities.
Similarly, Parties are free to determine the geographical area in which
observation is authorized, i.e. just the border area or the whole country.
Given the effects of this Article, prerequisites or special procedures
will have to be laid down for its acceptance and implementation. The possibilities
offered by this Article imply that the Parties are already linked by an international
agreement empowering their police authorities to take responsibility for this
procedure. If the Parties are not linked by such an agreement, they will probably
have to ask their Ministries of Foreign Affairs if this procedure is acceptable
as far as legislation and other international commitments are concerned.
- Officers of one of the Parties following, in their country, an
individual caught in the act of committing one of the offences referred to
in paragraph (7) below, or participating in one of those offences, shall be
authorized to continue pursuit in the territory of the other Party without
prior authorization where, given the urgency of the situation, it was not
possible to notify the competent authorities of the other Party or where these
authorities have been unable to reach the scene in time to take over the pursuit.
- The same shall apply where the person pursued has escaped from provisional
custody or while serving a custodial sentence.
- The pursuing officers shall, not later than when they cross the border,
notify the competent authorities of the Party in whose territory the pursuit
is to take place. The pursuit will cease as soon as the Party in whose territory
the pursuit is taking place so requests. At the request of the pursuing officers,
the competent local authorities shall apprehend the pursued person so that
he can be arrested.
- NCBs shall be informed, not later than when the border is crossed, of the
cross-border pursuit and shall in turn notify:
- as regards [Party A]: [competent authority],
- as regards [Party B]: [competent authority].
- The officers pursuing an individual in conformity with the terms of this
Article shall not have the right to apprehend that person.
- Pursuit may be carried out for as long as it takes to achieve the desired
result and without limit in space (subject to the restriction provided for
in paragraph (8,c) of the present Article).
Option 1
- Pursuit as referred to above may take place only in connection
with offences likely to result in extradition proceedings between the Parties.
Option 2
- Pursuit as referred to above may take place only in connection
with the following offences:
[list of offences]
- Pursuit as referred to in the present Article shall be subject
to the following general conditions:
- The pursuing officers 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.
- Pursuit shall be solely over land borders, including lakes and waterways.
- Entry into private homes and places not accessible to the public shall
be prohibited.
- The pursuing officers shall be easily identifiable, either by their
uniform or by means of an armband or by accessories fitted to their vehicle;
the use of civilian clothes combined with the use of unmarked vehicles
without the aforementioned identification is prohibited; the pursuing
officers must at all times be able to prove that they are acting in an
official capacity.
- The pursuing officers may carry their service weapons; their use shall
be prohibited save in cases of legitimate self-defence.
- After a pursuit, the pursuing officers shall present themselves before
the local competent authorities of the Party in whose territory they were
operating and shall give an account of their mission; at the request of
those authorities, they must remain at their disposal until the circumstances
of their action have been adequately elucidated; this condition shall
apply even where the pursuit has not resulted in the arrest of the pursued
person.
- The authorities of the Party from which the pursuing officers have
come shall, at the request of the authorities of the Party in whose territory
the pursuit took place, assist the enquiry subsequent to the operation
in which they took part, including legal proceedings.
- The officers referred to in the previous paragraphs shall be:
- as regards [Party A]: [list of authorized officers]
- as regards [Party B]: [list of authorized officers]
Note
The structure of this Article is similar to that of the Article on
observation (Article 8). It should however be pointed
out that the conditions attached to the right of pursuit are more restrictive
because pursuit encroaches on national sovereignty to an even greater extent
than observation. Generally speaking, the same comments apply, particularly
those relating to the implementation or acceptance of the procedure by the
Parties' competent authorities (see note after Article
8). Paragraph (6) may be adapted according to any restrictions in space and
time which the Parties may wish to attach to the right of pursuit.
- During cross-border observation or pursuit, officers shall be subject to
the same legal provisions in terms of traffic regulations as the officers
of the Party in whose territory the observation or pursuit is being carried
out. The Parties shall inform each other (through their NCBs) of the legislation
in force in this area.
- Technical resources to facilitate cross-border observation or pursuit may
be used, provided that this is authorized by the legislation of the Party
in whose territory the observation or pursuit is being carried out.
- The Parties undertake to establish conditions for law enforcement services
to use aircraft for observation, pursuit or other cross-border operations
decided on in conjunction with the relevant services.
Note
This Article reproduces the general provisions common to the
two techniques covered by the previous two Articles. The technical resources
referred to in paragraph (2) cover means of communication as well as means
of observation, such as binoculars, cameras, etc.
The Article also paves the way for the use of aircraft for cross-border
operations. This practice is not yet common enough for principles to have
been established about it. Furthermore, these provisions are similar to those
in Articles 8 and 9 above, in that
the Parties should be linked by an agreement in order to implement them.
During the operations referred to in Articles 8 and 9
above, the agents on mission in the territory of the other Party shall be subject
to the law on civil liability and criminal responsibility of the Party in whose
territory they are operating.
Note
This Article introduces the principle of responsibility which
is developed in the following Article. This provision is essential given the
nature of the procedures Parties are authorizing each other to carry out (observation
and pursuit). It is necessary to define principles of responsibility to encourage
the continued implementation of the Agreement in the event of problems involving
responsibility. Without such a provision, subsequent disagreements might result
in Parties denouncing the co-operation agreement. In the light of the legal
implications of this provision, Parties are strongly advised to consult their
Ministries of Foreign Affairs on the matter.
- Where, in accordance with Articles 8 and 9
above, officers of one Party are operating in the territory of the other Party,
the first Party shall be responsible for any damage caused by them during
the course of their mission, in accordance with the law of the Party in whose
territory they are operating.
- The Party in whose territory the damage referred to in paragraph (1) above
occurs shall repair such damage under the conditions applicable to damage
caused by its own officers.
- The Party whose officers have caused damage to anyone in the territory of
the other Party shall reimburse in full to the latter any sums the latter
has paid out to the victims or other entitled persons.
- Without prejudice to the exercise of its rights vis-à-vis third
parties and without prejudice to paragraph (3) above, each Party shall refrain,
in the case provided for in paragraph (1) above, from requesting reimbursement
of the amount of damages it has sustained from the other Party.
Note
This Article details the practical implementation of the principle
of responsibility defined in the previous Article. It deals mainly with the
issue of reparation by defining the responsibilities of each Party so that
no individual is in any way wronged as a result of the Agreement being applied
(see paragraph (2)).
Paragraph (4) deals with damages caused directly to the other Party and
not to a private individual who is a national of that Party. This includes
damage to movable or immovable property belonging to public officials, as
well as damage caused to officers of the State concerned. In the light of
the legal implications of this provision, Parties are strongly advised to
consult their Ministries of Foreign Affairs on the matter.
| Chapter V - Missions,
Participation in Investigations, Special Investigative Techniques |
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- Officers from one Party may enter the territory of the other Party in order
to assist in investigations being carried out in that territory.
- When officers are on mission in application of the present Article, they
shall act as observers.
- Officers on mission shall be authorized to be present during:
- searches of premises,
- searches of persons,
- questioning and hearings,
- autopsies.
- Officers on mission may be authorized to ask questions during questioning
and hearings. However, only officers from the territory in which the procedure
is taking place shall be authorized to decide what action to take.
- Missions shall be organized by the Parties' NCBs.
Note
This Article provides for a system whereby officers from one
Party may be passively involved in investigations being carried out by the
other Party. Paragraph (5) reiterates one of the NCBs' traditional roles,
i.e. co-ordinating international co-operation. To this effect, they are able
to make the arrangements involved in implementing this Article. In their capacity
as central liaison points, they are familiar with the possibilities and the
rules to be respected and should be the only contacts used in this context.
Paragraph (5) deals with an issue which has been discussed at length within
the Organization. Two General Assembly resolutions acknowledge the importance
of NCBs being responsible for organizing police missions abroad (Resolution
AGN/42/RES/8 of 1973 and Resolution AGN/49/RES/4 of 1980). In addition, in
the early 1980s, the General Secretariat carried out a study of the question
which was then the subject of a 1981 General Assembly report (Report No. 16).
This study showed that NCBs were generally in the best position to organize
police missions abroad. In this way they fulfil their role as central contact
points for international police co-operation.
- Parties shall take the necessary measures to co-ordinate the implementation
of special investigative techniques, such as controlled deliveries, surveillance
and undercover operations, for the purpose of gathering evidence so that the
competent authorities may take legal action against persons involved in an
offence targeted by these techniques.
- Officers of one Party involved in this type of investigation shall respect
the conditions agreed on with the Party in whose territory that investigation
is taking place.
- Parties shall agree on the extent to which the implementation of the provisions
of the present Article may give rise to financial compensation or a sharing
of the costs involved.
Note
INTERPOL became interested in controlled deliveries back in
1979 when the subject was an item on the agenda of the Meeting of Heads of
European National Drug Services. As a result of this meeting, a questionnaire
was produced and the replies became the subject of Report No. 9, which was
submitted to the 48th General Assembly session held in Nairobi in 1979. The
notion of "controlled deliveries" was first codified in international
law with the 1988 United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances. With the draft United Nations Convention
against Transnational Organized Crime, currently under negotiation, the idea
has been reinforced and expanded to become "special investigative techniques".
This is an important concept which has a considerable impact on operational
activities. The General Secretariat asked European States (outside the European
Union) about their legislation and practices regarding controlled deliveries
and the use of undercover agents. These studies showed that these investigative
techniques are an important part of States' legal weaponry for combating complex
crimes. Studies have also been carried out at a worldwide level because all
INTERPOL member countries are beginning to experience the need for such techniques.
Article 14 satisfies this need, even though its implementation would require
specific national legislation in most States. Including such a provision in
a police co-operation agreement encourages States to legislate in this area,
which will in turn open up increased opportunities for effective co-operation.
Paragraph (3) is necessary insofar as the Party in whose territory a controlled
delivery is taking place, for example, will be using a certain amount of logistical
resources and incurring costs without directly benefiting from the results
of the operation. This being the case, Parties may consider it appropriate
to agree to the requesting Party giving the other Party financial compensation
for the assistance provided, notably by sharing the proceeds of confiscated
assets when they are sold off for the benefit of the public sector.
- The Parties shall consult each other on the creation of mixed teams to
implement the provisions of the present Chapter.
- Officers of the Parties who are members of such teams shall comply with
the instructions of the competent authorities of the Party in whose territory
the operation is taking place.
Note
This Article goes a stage further than the two previous ones by providing
for the creation of mixed, institutionalized teams made up of officers from
each Party. These teams are not formed for the purposes of a particular case
but instead are permanent teams whose members co-operate on a daily basis.
The main purpose of these mixed teams is to ensure the effectiveness of the
operations referred to in Article 14.
Paragraph (2) establishes who will be in charge of the teams, which will
depend on the territory in which they are operating.
| Chapter VI - Other
forms of Co-operation |
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- The Parties shall co-operate in forensic science and other technical matters.
In this respect, each Party shall make available to the other Party its material
and human resources for carrying out investigations in this area.
- To this effect, when necessary the Parties shall provide each other with
evidence, or the quantities of substances required for analysis or investigation.
- The Parties shall also co-operate in the identification of victims of major
disasters.
- The Parties shall agree on whether the use of such resources provided by
one Party to another shall give rise to financial compensation.
Note
The advantage of co-operation in forensic science and other
technical matters is that expensive equipment can be shared and would therefore
be more economically viable. For this to happen, reports produced by the relevant
services of one Party need to be accepted by the judicial authorities of the
other Party.
Apart from requests for mutual assistance in this area, the Parties may
find it useful to send each other samples of substances seized (such as drugs),
as provided for in paragraph (2). Such samples can provide the recipient Party
with a considerable amount of information and may enable links to be established
with other cases.
Paragraph (3) deals with co-operation which is not linked to judicial
enquiries, i.e. the use of forensic science in civil cases. This provision
explains why Article 1 of the model agreement does not refer to "criminal"
or "judicial" police.
Paragraph (4) raises the issue of financial compensation as a result of
the implementation of this Article. If work done in application of this Article
results in the requesting Party being billed for it, the price charged should
be as low as possible (cost price) so that no Party may make an unjustified
profit from the co-operation carried out in the context of this Agreement.
- The Parties shall organize reciprocal visits between their respective border
units.
- A Party may invite officers selected by the other Party to attend its seminars
and in-house training courses in subject areas such as:
- Methods used to prevent, detect and combat offences,
- Routes and modus operandi used by individuals suspected of committing
offences,
- Control of import/export of contraband,
- Gathering evidence,
- Law enforcement equipment and techniques (electronic surveillance, controlled
deliveries, undercover operations, etc.).
(non-exhaustive list)
- The Parties shall consider associating all those involved in law enforcement,
including judges and customs officers, in the above-mentioned visits and training.
- A Party shall send officers as interns to the other Party in order to familiarize
them with the latter's structure and practices.
Note
It is important for Parties' officials to be familiar with
their counterparts and their working methods in the interests of encouraging
the daily implementation of the police co-operation referred to in the model
agreement. Similarly, the Parties may consider it useful to share experience
and organize joint training courses as an even greater encouragement to their
officers to work as a team. Such training courses also offer an opportunity
to share expertise where one Party has more experience in a particular area
than the other. Involving other law enforcement services encourages and improves
multidisciplinary co-operation, which inevitably increases the effectiveness
of international co-operation, especially in connection with particularly
complex offences.
The Parties shall encourage appropriate language training for officers likely
to be in contact with officers from the other Party (particularly NCB officers).
Note
The language issue is of fundamental importance because it
is often an obstacle to good co-operation between the officers responsible
for such contact. It is vital that communication be as effective as possible,
for state-of-the-art telecommunications equipment is of little use if the
people using it cannot understand each other. This Article is also essential
for the practical implementation of the whole of Chapter V.
| Chapter VII - Implementation
Assessment and Resolving Implementation Problems |
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Option 1
- A common body shall be responsible for assessing the co-operation implemented
under the present Agreement on a yearly basis.
- The common assessment body shall communicate its findings to the competent
government authorities of each Party, who shall take any necessary measures
to resolve problems arising from the implementation of the present Agreement.
- [Name and composition of this common body]
Option 2
- A common body shall be responsible for assessing the co-operation implemented
under the present Agreement on a yearly basis.
- The common assessment body shall be composed of representatives of the
Ministers responsible for the implementation of the present Agreement, Heads
of NCBs and heads of the services referred to in Article 3(1)
above.
Note
It would appear essential to assess co-operation so that it
can be adapted in the event of problems and/or shortcomings. Setting up a
common assessment body to this effect will establish a dialogue between the
Parties. The assessment body can be set up at ministerial level (Option 2)
or can operate at a more technical level while reporting to the ministerial
(i.e. political) level likely to be able to resolve any problems (Option 1).
Whichever option is chosen, the importance of the role of the NCBs (see
Article 3) means that the Heads of NCBs should be actively
involved in the work of the assessment body.
- Difficulties arising from the application or interpretation of the present
Agreement shall be the subject of consultation between the authorities of
the Parties in the context of the common body created by virtue of Article
19 above.
- Each Party may request that a meeting of experts be held to resolve problems
related to the application of the present Agreement and to submit to the common
body proposals for developing co-operation.
Note
Paragraph (1) assigns a supplementary role to the common assessment body
which, understandably enough, also provides a forum for discussion of any
difficulties encountered in implementing the Agreement. This role should be
given to the same body because a different one would not necessarily be familiar
with how the Agreement works or be able to assess any problems in a satisfactory
manner. However, the common assessment body may consider it necessary to set
up an ad hoc body to shed new light on problems, and this is provided for
in paragraph (2). The structure of any such ad hoc body should be flexible
so that it can be adapted according to the circumstances and decided on as
and when necessary. For example, it could be composed of officers working
on a day-to-day, operational basis, or university professors to help with
legal questions, etc.
| Chapter VIII -
Final Provisions |
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The present Agreement shall not affect the application of agreements already
in force between the Parties.
Note
This provision is meant to take account of any possible overlapping
when there is more than one agreement on the same subject. It establishes
the principle that such agreements are independent of each other. This is
a conventional provision but Parties may provide for the new Agreement to
replace an existing agreement. In that case, the following wording is suggested
for Article 21: "As from its entry into force, the present Agreement
shall replace the [title of agreement] agreement concluded between the Parties
on [date]".
- The present Agreement shall enter into force on the date of notification
of the second instrument of ratification.
- The present Agreement has no expiry date.
- Denunciation shall be notified in writing to the other Party or at least
six months before it is to take effect. Denunciation shall in no way detract
from the Parties' rights and obligations resulting from co-operation carried
on under the terms of the present Agreement.
Note
This Article contains standard provisions. Paragraph (1), for
example, authorizes the implementation of the Agreement between two Parties
even if the other Parties (in the case of a multilateral agreement) have not
yet ratified it. This will prevent one Party blocking the Agreement when four
or five States are involved.
At paragraph (2), the Parties may decide to give the Agreement a fixed
term. In this case, provision also needs to be made for negotiations to renew
the Agreement to begin, say, a year before it expires. The Parties also need
to provide for what will happen to the Agreement if negotiations are inconclusive
at the date of expiry. The Agreement could be allowed to expire, be renewed
automatically for its initial duration or, ideally, extended for six to twelve
months so that negotiations can be completed. If negotiations then fail, the
Agreement would be rendered null and void.
Paragraph (3) reconciles the provisions of Article 12
on the Parties' liability with denunciation of the Agreement. A Party will
not be able to free itself of its responsibility by denouncing the Agreement,
since its obligations defined under Article 12 will survive
the Agreement. Similarly, if a Party still has information from the other
Party when the denunciation takes effect, the relevant provisions of Article
7 still apply.
Done at […], this […] day of […]
In […]originals in the […]languages, all […] texts being equally
authentic.
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