We will move to motion number 3. This is the Council decision on the signing on behalf of the European Union of an agreement between the European Union and Japan on mutual legal assistance in criminal matters.
EU-Japan Agreement on Mutual Legal Assistance: Motion.
This is an issue where there is a time imperative, up to 30 November, for the adoption of this motion before 1 December when the Lisbon treaty comes into force.
I thank the committee for its consideration of this motion, particularly given the short notice involved. The motion seeks the approval of both Houses to the adoption of the Council decision on the signing of an agreement between the European Union and Japan on mutual legal assistance in criminal matters. The decision will be before the Justice and Home Affairs Council on 30 November for adoption.
To fail to adopt this Council decision in advance of 1 December will significantly delay the agreement as a new negotiation mandate under the terms of the Lisbon treaty will be required. As I mentioned already, the Presidency intends to seek the adoption of the Council decision at the Justice and Home Affairs Council on 30 November. The other member states have indicated that they do not intend to delay the adoption of the instrument and it is my view that Ireland should cooperate in approving this instrument.
I would like to briefly set out the time line of events leading to the proposal to adopt this measure. I have already mentioned the negotiations between the European Union and Japan concluded on 29 of October. The Council decision on the signing of the agreement was presented on 4 November. On 11 November, a meeting of EU ambassadors reached consensus on the text of the agreement. The agreement was published on 12 November and copies were laid before the Houses on the same day. On 17 November, the Government approved the bringing of the motions before the Houses and, subject to such approval, the subsequent adoption of the Council decision on 30 November. I am sure the members of the committee appreciate the very tight timeframe in which we are operating and the unique circumstances involved.
Turning to the agreement itself which will provide the basis for mutual legal assistance between the member states of the European Union and Ireland. It sets out the forms of assistance that will be available, once in force, between the member states and Japan. The agreement raises no particular difficulties for Ireland. The forms of assistance available under the agreement are provided for in Irish law under the Criminal Justice (Mutual Assistance) Act 2008. A minor amendment to that Act applying the provisions of the Act to assistance between Ireland and Japan will be required. An order under section 4 of the 2008 Act designating Japan for the purpose of mutual assistance in criminal matters will also be required.
The agreement will facilitate cooperation between member states and Japan through the provision of mutual legal assistance in criminal investigations and prosecutions. The scope of the assistance available under the agreement is set out in Article 3 and includes the taking of evidence from witnesses, use of search and seizure, temporary transfer of prisoners for the purpose of giving evidence and freezing and confiscation of the proceeds of crime.
Article 4 of the agreement makes provision for the central authority and clarifies that such authority shall have responsibility for sending, receiving and responding to requests for assistance.
Article 6 states that the authorities competent to originate requests for assistance under this agreement will be set out in annex II to the agreement. The annexes to the agreement are currently being finalised. In the case of Ireland, the Director of Public Prosecutions will be listed as the authority competent to originate requests. This is in line with the provisions of the Criminal Justice (Mutual Assistance) Act 2008.
Article 8 confirms that requests for assistance must be in writing but may, in urgent cases, be made by another means such as fax or e-mail and subsequently confirmed in writing. Article 9 deals with the language in which a request must issue. Ireland will require that all requests are submitted in either English or Irish. Under Article 10, a request may be postponed where its execution would interfere with an ongoing investigation, prosecution or other proceeding in the requested state.
Provisions relating to the refusal of requests are contained in Article 11. Again, these provisions replicate provisions in similar mutual assistance instruments. There is an additional important safeguard contained in Article 11. Assistance may be refused where the execution of a request would be considered to impair an essential interest of the requested state. The article confirms that a state may view a request concerning an offence carrying the death penalty as prejudicing the essential interests of the state.
Additional detail in relation to the forms of assistance available under the agreement is set out in Articles 13 to 26. Article 13 confirms that information obtained on foot of a request shall only be used in the investigation or prosecution detailed in the request, unless otherwise agreed.
Article 16 allows for the hearing of witnesses by video-conference. Such a hearing would be conducted under the direction of the requesting authorities in accordance with the laws of that state. It must also comply with the fundamental principles of the law of the requested state.
Article 18 provides for assistance in obtaining information on specified bank accounts, including any records of banking operations carried out during a specified period.
Article 22 allows for the service of documents and informing a person of an invitation to appear before the competent authority of a requesting state. Article 24 concerns the temporary transfer of persons in custody for evidentiary purposes. In both cases, the safe conduct provisions of Article 23 will apply to persons who appear in a requesting state for the purpose of providing evidence.
Article 25 provides for assistance in relation to the freezing and confiscation of the proceeds or instrumentalities of crime. As with the other provisions of the agreement, this form of assistance will be provided in accordance with the corresponding provisions of the Criminal Justice (Mutual Assistance) Act 2008.
Given the geographical distance between Japan and Ireland, it is unlikely that there will be high levels of assistance between our countries. However, as I have already stated, this agreement reflects the continuing commitment to more effective cooperation between the EU and Japan and, to that end, it is an important development. I recommend it to the committee.
I confirm the approval of the Fine Gael party for this motion.
Articles 9 deals with the language in which a request must be issue. Ireland will require that all requests are submitted in either English or Irish. Does the Minister anticipate that urgent Irish requests will be sent in the Irish language and would he see that as causing difficulties with regard to translation?
Hardly for Japan.
I take it then that it will not be exercised in the context of Japan.
Hardly.