Model Treaty on the Mutual Assistance in Criminal Matters

Model Treaty on the Mutual Assistance in Criminal Matters

, G.A. res. 45/117, annex, 45 U.N. GAOR Supp. (No. 49A) at 215, U.N. Doc. A/45/49 (1990).

ARTICLE 1

Scope of application

1. The Parties shall afford to each other the widest possible measure of mutual assistance in investigations or court proceedings in respect offenses the punishment of which at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the Requesting State.
2. Mutual assistance to be afforded in accord with this Treaty may include:
a) Taking evidence or statements from persons;
b) Assisting in the availability of detained persons or others to give evidence or assist in investigations;
c) Effecting service of judicial documents;
d) Executing searches and seizures;
e) Examining objects and sites;
f) Providing information and evidentiary items;
g) Providing relevant documents and records.
3. This Treaty does not apply to:
a) The arrest or detention of any person with a view to extradition;
b) The enforcement of criminal judgments imposed in the Requesting State except as permitted by law in the Requested State;
c) The transfer of persons in custody to serve sentences;
d) The transfer of proceedings in criminal matters.

ARTICLE 2

Other arrangements

Unless the Parties decide otherwise, this Treaty shall not affect obligations subsisting between them.

ARTICLE 3

Designation of competent authorities

Each Party shall designate and indicate to the other Party an authority or authorities through which requests for the purposes of this Treaty should be made.

ARTICLE 4

Refusal of assistance

1. Assistance may be refused if:
a) The Requested State is of the opinion that the request, if granted, would prejudice its sovereignty, security, public order or other essential public interests;
b) The offense is regarded as being of a political nature;
c) There are grounds to believe the request has been made for the purpose of prosecuting a person on account of race, ***, religion, nationality, ethnic origin or political opinions or that person's position may be prejudiced for any of those reasons;
d) The request relates to an offense subject to investigation or prosecution in the Requested State or which would be incompatible with this State's law on double jeopardy;
e) The Requested State is required to carry out compulsory measures inconsistent with its law and practice;
f) The act is an offense under military law, and not also an offense under ordinary criminal law.
2. Before refusing a request, the Requested State shall consider whether assistance may be granted subject to certain conditions. If the Requesting State accepts assistance under these conditions, it shall comply with them.
3. Reasons shall be given for any refusal or postponement of mutual assistance.

ARTICLE 5

Contents of requests

1. Requests for assistance shall include:
a) The name of the requesting office and the competent authority conducting the investigation or court proceedings;
b) The purpose of the request and a brief description of the assistance sought;
c) A description of the facts alleged to constitute the offense and a statement of the relevant laws;
d) The name and address of the person to be served, where necessary;
e) The reasons for and details of any procedure or requirement that the Requesting State wishes to be followed;
f) Specification of any time-limit to be complied with;
g) Other necessary information.
2. Requests and supporting documents shall be accompanied by a translation into the language of the Requested State or another language acceptable to that State.
3. The Requested State may request additional information.

ARTICLE 6

Execution of requests

Requests for assistance shall be carried out promptly. To the extent consistent with the law of the Requested State, it shall carry out the request in the manner specified by the Requesting State.

ARTICLE 7

Return of material to the Requested State

Any property, records or documents handed over to the Requesting State shall be returned as soon as possible unless right of return is waived.

ARTICLE 8

Limitation on use

The Requesting State shall not use information provided for proceedings other than those stated in the request.

ARTICLE 9

Protection of confidentiality

Upon request:

a) The Requested State shall endeavor to keep confidential the request for assistance and its contents;
b) The Requesting State shall keep confidential evidence and information provided, except as needed for investigation and proceedings described in the request.

ARTICLE 10

Service of documents

1. The Requested State shall effect service of documents that are transmitted to it.
2. A request to effect service of summonses shall be made not less than ... days before the date on which the appearance of a person is required. In urgent cases, the time requirement may be waived.

ARTICLE 11

Obtaining evidence

1. The Requested State shall take sworn or affirmed testimony for transmission to the Requesting State.
2. Upon request, the parties to the relevant proceedings in the Requesting State, their legal representatives and representatives of the Requesting State may be present at these proceedings.



ARTICLE 12

Right or obligation to decline to give evidence

1. A person required to give evidence may decline to do so where either:
a) The law of the Requested State permits or requires that person to decline to give evidence in similar circumstances; or
b) The law of the Requesting State permits or requires that person to decline to give evidence in similar circumstances.
2. If a person claims a right or obligation to decline to give evidence under the law of the other State, a certificate of the competent authority of that other State as to the existence or nonexistence of that right or obligation shall be relied on.

ARTICLE 13

Availability of persons in custody to give evidence or to assist in investigations

1. Upon request, and if the Requested State agrees and its law permits, a person in custody may, subject to his or her consent, be temporarily transferred to the Requesting State to give evidence or assist in the investigations.
2. The Requesting State shall hold that person in custody and shall return him or her at the conclusion of the matter under investigation or at such earlier time as that person's presence is no longer required.
3. Where the Requested State advises the Requesting State that the transferred person is no longer required to be held in custody, that person shall be set at liberty.

ARTICLE 14

Availability of other persons to give evidence or assist in investigations

1. The Requesting State may request the assistance of the Requested State in inviting a person:
a) To appear in proceedings in relation to a criminal matter, unless that person is the person charged; or
b) To assist in the investigations in relation to a criminal matter.
2. The Requested State shall invite the person to appear as a witness or expert in proceedings or to assist in investigations.
3. The request or the summons shall indicate the approximate allowances and the travel and subsistence expenses payable by the Requesting State.
4. Upon request, the Requested State may grant the person an advance, to be refunded by the Requesting State.

ARTICLE 15

Safe conduct

1. Where a person is in the Requesting State pursuant to a request for assistance:
a) That person shall not be detained, prosecuted, punished or subjected to any other restrictions of personal liberty in respect of any acts or omissions that preceded the person's departure from the Requested State;
b) That person shall not, without that person's consent, be required to give evidence or assist in any other investigation or proceeding other than that which the request relates to.
2. Paragraph 1 of this article shall cease to apply if that person, being free to leave, has not left the Requesting State within a period of [15] consecutive days after having been officially notified that his or her presence is no longer required or, having left, has voluntarily returned.
3. A person who does not consent to a request pursuant to article 13 or accept an invitation pursuant to article 14 shall not, by reason thereof, be liable to any penalty or subjected to any coercive measure.

ARTICLE 16

Provision of publicly available documents and other records

1. The Requested State shall provide copies of documents and records in so far as they are open to public access as part of a public register.
2. The Requested State may provide copies of any other document or record under the same conditions as they would be provided to its own law enforcement and judicial authorities.

ARTICLE 17

Search and seizure

The Requested State shall, in so far as its law permits, carry out requests for search and seizure and delivery of any material to the Requesting State for evidentiary purposes, provided that the rights of bona fide third parties are protected.

ARTICLE 18

Certification and authentication

A request for assistance shall not require certification or authentication.

ARTICLE 19

Costs

The ordinary costs of executing a request shall be borne by the Requested State, unless otherwise determined. The Parties shall consult in advance to determine the terms and conditions under which costs of a substantial or extraordinary nature will be borne.

ARTICLE 20

Consultation

The Parties shall consult promptly, at the request of either, concerning the interpretation and application of this Treaty.

ARTICLE 21

Final provisions

1. This Treaty is subject to (ratification, acceptance or approval).
2. This Treaty shall enter into force on the thirtieth day after the instruments of (ratification, acceptance or approval) are exchanged.
3. This Treaty shall apply to requests made after its entry into force, even if the relevant acts or omissions occurred prior to that date.
4. Either Party may denounce this Treaty by giving notice in writing to the other Party. Such denunciation shall take effect six months following the date on which notice is received by the other Party.