Commonwealth Numbered Regulations

1994 No. 99 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (GRAND DUCHY OF LUXEMBOURG) REGULATIONS - SCHEDULE

                       SCHEDULE                        Regulation 4

TREATY BETWEEN AUSTRALIA AND THE GRAND DUCHY OF LUXEMBOURG ON MUTUAL
ASSISTANCE IN CRIMINAL MATTERS Australia and the Grand Duchy of Luxembourg
DESIRING to extend to each other the widest measure of cooperation to combat
crime, HAVE AGREED as follows:
ARTICLE 1
SCOPE OF APPLICATION
1. The Contracting States shall, in accordance with this Treaty, grant to each
other assistance in investigations or proceedings in respect of criminal
matters.
2. Such assistance shall consist of:

   (a)  taking of evidence and obtaining of statements of persons;

   (b)  provision of documents and other records;

   (c)  location and identification of persons;

   (d)  execution of requests for search and seizure, as well as for
        identifying, restraining, confiscating and returning of the proceeds
        of crime;

   (e)  making prisoners available to give evidence or to assist
        investigations;

   (f)  making other persons available to give evidence or to assist
        investigations;

   (g)  service of documents; and

   (h)  other assistance consistent with the objects of this Treaty which is
        not inconsistent with the law of the Requested State.
3. Assistance shall not include:

   (a)  the arrest or detention of any person with a view to extradition;

   (b)  execution of final criminal determinations except to the extent
        permitted by the law of the Requested State and this Treaty; and

   (c)  the transfer of prisoners to serve sentences.
ARTICLE 2
OTHER ASSISTANCE This Treaty shall not derogate from obligations subsisting
between the Contracting States pursuant to other treaties or arrangements nor
prevent the Contracting States providing assistance to each other pursuant to
other treaties or arrangements.
ARTICLE 3
CENTRAL OFFICE
1. The Contracting States shall each appoint a Central Office to transmit and
receive requests for the purpose of this Treaty. Until the relevant
Contracting State designates another authority, the Central Office of
Australia shall be the Attorney-General s Department, Canberra and the Central
Office of the Grand Duchy of Luxembourg shall be the Ministry of Justice,
Luxembourg.
2. Requests for assistance shall be made through the Central Offices which
shall arrange for the prompt carrying out of such requests.
ARTICLE 4
REFUSAL OF ASSISTANCE
1. Assistance shall be refused if:

   (a)  the request relates to an offence that is regarded by the Requested
        State as:

        (i)    an offence of a political character; or

        (ii)   an offence under military law of the Requested State which is
               not also an offence under the ordinary criminal law of the
               Requested State;

   (b)  the request relates to an offence in respect of which the offender has
        been finally acquitted or pardoned or has served the sentence imposed;

   (c)  there are substantial grounds for believing that the request for
        assistance has been made to facilitate the prosecution of a person on
        account of that person s race, sex, religion, nationality or political
        opinions or that that person s position may be prejudiced for any of
        these reasons; or

   (d)  the Requested State is of the opinion that the request, if granted,
        would seriously impair its sovereignty, security, national interest or
        other essential interests.
2. Assistance may be refused if:

   (a)  the request, according to the law of the Requested State, relates to a
        fiscal offence;

   (b)  the request relates to an offence where the acts or omissions alleged
        to constitute that offence would not, if they had taken place within
        the jurisdiction of the Requested State, have constituted an offence;

   (c)  the request relates to an offence which is committed outside the
        territory of the Requesting State and the law of the Requested State
        does not provide for the punishment of a similar offence committed
        outside its territory in similar circumstances;

   (d)  the request for assistance relates to an offence which, had it been
        committed in the Requested State, could no longer be prosecuted by
        reason of lapse of time or any other reason; or

   (e)  the provision of the assistance sought could prejudice an
        investigation or proceeding in the Requested State, prejudice the
        safety of any person or impose an excessive burden on the resources of
        that State.
3. Before refusing to grant a request for assistance the Requested State may
consider whether assistance could be granted subject to such conditions as it
deems necessary. If the Requesting State accepts assistance subject to
conditions, it shall comply with the conditions.
ARTICLE 5
CONTENTS OF REQUESTS
1. Requests for assistance shall include:

   (a)  the name of the competent authority conducting the investigation or
        proceedings to which the request relates;

   (b)  except in cases of requests for service of documents, a description of
        the essential acts, omissions or matters alleged or sought to be
        ascertained and a description of the nature of the criminal matter
        including the text of the relevant provision of the law creating an
        offence (or in the case of Australia, in respect of a common law
        offence, by a statement of the law applicable to the offence);

   (c)  the purpose for which the request is made and the nature of the
        assistance sought;

   (d)  details of any particular procedure or requirement that the Requesting
        State wishes to be followed;

   (e)  the requirements, if any, of confidentiality and the reasons
        therefore; and

   (f)  specification of any time limit within which compliance with the
        request is desired.
2. Requests for assistance, to the extent necessary and insofar as possible,
shall also include:

   (a)  the identity, nationality and location of the person or persons who
        are the subject of, or who may have material evidence relating to, the
        investigation or proceeding;

   (b)  a statement as to whether sworn or affirmed evidence or statements are
        required;

   (c)  a description of the information, statements, documents, records or
        other material to be produced as well as a description of the
        appropriate person to be asked to produce them and, to the extent not
        otherwise provided for, the form in which they should be reproduced
        and authenticated; and

   (d)  information as to the allowances and expenses to which a person
        appearing in the Requesting State will be entitled.
3. All documents submitted in support of a request, where necessary, shall be
accompanied by a translation:

   (a)  in the case of a request to Australia, in English; or

   (b)  in the case of a request to the Grand Duchy of Luxembourg, in French.
4. If the Requested State considers that the information contained in the
request is not sufficient to enable the request to be dealt with, that State
may request that additional information be furnished.
ARTICLE 6
EXECUTION OF REQUESTS
1. To the extent permitted by its law, the Requested State shall provide such
assistance as specified in the request and shall respond to the request as
soon as practicable.
2. The Requested State may postpone the delivery of material requested if such
material is required for proceedings in respect of criminal or civil matters
in that State. The Requested State shall, upon request, provide certified
copies of documents.
3. The Requested State shall promptly inform the Requesting State of
circumstances, when they become known to the Requested State, which are likely
to cause a significant delay in responding to the request.
4. The Requested State shall promptly inform the Requesting State of a
decision of the Requested State not to comply in whole or in part with a
request for assistance and the reason for that decision.
ARTICLE 7
RETURN OF MATERIAL TO REQUESTED STATE Where required by the Requested State,
the Requesting State shall return the material provided after the completion
of the proceedings to which the request relates.
ARTICLE 8
PROTECTING CONFIDENTIALITY AND RESTRICTING USE OF
EVIDENCE AND INFORMATION
1. The Requested State, if so requested, shall keep the application for
assistance, the contents of a request and its supporting documents, and the
fact of granting of such assistance, confidential. If the request cannot be
executed without breaching confidentiality, the Requested State shall so
inform the Requesting State which shall then determine whether the request
should nevertheless be executed.
2. The Requesting State, if so requested, shall keep confidential evidence and
information provided by the Requested State, except to the extent that the
evidence and information is needed for the investigation and proceeding
described in the request.
3. The Requesting State shall not use evidence obtained, nor information
derived therefrom, for purposes other than those stated in a request without
the prior consent of the Requested State.
ARTICLE 9
SERVICE OF DOCUMENTS
1. A request to effect service of a document requiring the appearance of a
person shall be made to the Requested State not less than 45 days before the
date on which the appearance is required. In urgent cases, the Requested State
may waive this requirement.
2. The Requested State shall effect service of documents which are transmitted
to it for this purpose by the Requesting State.
3. Service may be effected by simple transmission of the document to the
person to be served. If the Requesting State expressly so requests, service
shall be effected by the Requested State in the manner provided for the
service of analogous documents under its own law or in a special manner
consistent with such law.
4. Proof of service shall be given by means of a receipt dated and signed by
the person served or by means of a declaration made by the Requested State
that service has been effected and stating the form and date of such service.
One or other of these documents shall be sent immediately to the Requesting
State. The Requested State shall, if the Requesting State so requests, state
whether service has been effected in accordance with the law of the Requested
State. If service cannot be effected, the reasons shall be communicated
immediately by the Requested State to the Requesting State.
ARTICLE 10
TAKING OF EVIDENCE
1. Where a request is made for the purpose of a proceeding in relation to a
criminal matter in the Requesting State the Requested State shall take
evidence of witnesses for transmission to the Requesting State.
2. For the purposes of this Treaty, the giving or taking of evidence shall
include the production of documents, records or other material.
3. For the purposes of requests under this Article the Requesting State shall
specify the nature of the questions to be put to the witnesses or the subject
matter about which they are to be examined.
4. Where a person is required to give evidence pursuant to this Article,
officials and persons involved in the proceedings in the Requesting State may
be present if the Requested State consents.
5. A person who is required to give evidence in the Requested State under this
Article may decline to give evidence where either:

   (a)  the law of the Requested State permits that witness to decline to give
        evidence in similar circumstances in proceedings originating in the
        Requested State; or

   (b)  where the law of the Requesting State permits that witness to decline
        to give evidence in such proceedings in the Requesting State.
6. If any person claims a right to decline to give evidence under the law of
the Requesting State, the Requested State shall, with respect thereto, rely on
a certificate of the Central Office of the Requesting State.
ARTICLE 11
TEMPORARY TRANSFER OF PRISONERS TO GIVE EVIDENCE
OR ASSIST INVESTIGATIONS
1. A prisoner in the Requested State may at the request of the Requesting
State be temporarily transferred to the Requesting State to give evidence or
to assist investigations.
2. The Requested State shall not transfer a prisoner to the Requesting State
unless the prisoner consents.
3. While the original sentence of a prisoner in the Requested State has not
expired, the Requesting State shall hold the prisoner in custody and shall
return that prisoner in custody to the Requested State at the conclusion of
the proceedings in relation to which transfer to the Requesting State is
sought under paragraph 1 of this Article or at such earlier time as that
prisoner s presence is no longer required.
4. Where the sentence imposed on a person transferred under this Article
expires whilst the person is in the Requesting State, that person shall
thereafter be treated as a person referred to in Article 12.
ARTICLE 12
AVAILABILITY OF OTHER PERSONS TO GIVE EVIDENCE OR
ASSIST INVESTIGATIONS
1. The Requesting State may request the assistance of the Requested State in
making a person available:

   (a)  to appear as a witness in proceedings in relation to a criminal matter
        in the Requesting State unless that person is the person charged; or

   (b)  to assist investigations in relation to a criminal matter in the
        Requesting State.
2. The Requested State shall, if satisfied that satisfactory arrangements for
that person s security will be made by the Requesting State, request the
person to consent to appear as a witness in proceedings or to assist in the
investigations.
ARTICLE 13
SAFE CONDUCT
1. Where a person consents to give evidence in a proceeding or to assist in an
investigation in the Requesting State under Articles 11 or 12:

   (a)  that person shall not be detained, prosecuted or punished in the
        Requesting State for any offence, nor shall advantage be taken in the
        Requesting State of the presence of the person for the purpose of
        civil proceedings, in respect of any act or omission which preceded
        the person s departure from the Requested State; or

   (b)  that person shall not be required to give evidence in any proceeding
        other than the proceeding to which the request relates, without that
        person s consent.
2. Paragraph 1 of this Article shall cease to apply if that person, not being
a prisoner detained under Article 11, and being free to leave, has not left
the Requesting State within a period of thirty days after that person has been
officially notified that that person s presence is no longer required or,
having left, has returned.
3. A person appearing before an authority in a Requesting State pursuant to a
request under Articles 11 or 12 shall not be subject to prosecution based on
the testimony given except that that person shall be subject to the laws of
that State in relation to contempt and perjury.
4. A person who does not consent to a request pursuant to Articles 11 or 12
shall not by reason thereof, be liable to any penalty or be subjected to any
coercive measure notwithstanding any contrary statement in the request.
5. A person who appears as a witness in the Requesting State pursuant to a
request may decline to give evidence if the person has, under the law of the
Requested State, a right to decline to do so.
6. If any person claims a right to decline to give evidence under the law of
the Requested State, the Requesting State shall, with respect to that claim,
rely on a certificate of the Central Office of the Requested State.
ARTICLE 14
PROVISION OF PUBLICLY AVAILABLE AND OFFICIAL
DOCUMENTS
1. Upon request, the Requested State shall provide copies of documents and
records that are open to public access as part of a public register or
otherwise.
2. Upon request, the Requested State may provide copies of any official
document or record in the same manner and under the same conditions as such
document or record may be provided to its own law enforcement and judicial
authorities.
ARTICLE 15
CERTIFICATION AND AUTHENTICATION
1. Each Contracting State shall, upon request, authenticate any documents or
other material to be transmitted to the other Contracting State under this
Treaty.
2. A document is authenticated for the purposes of this Treaty if:

   (a)  it purports to be signed or certified by a Judge, Magistrate or other
        officer in or of the State sending the document; and

   (b)  it purports to be authenticated by the oath or affirmation of a
        witness or to be sealed with an official seal of the State sending the
        document or of a Minister of State, or of a Department or officer of
        the Government, of that State.
ARTICLE 16
SEARCH AND SEIZURE
1. The Requested State shall, insofar as its law permits, carry out requests
for search, seizure and delivery of any material to the Requesting State
provided that the request:

   (a)  relates to acts or omissions which would constitute an extraditable
        offence under the law of the Requested State; and

   (b)  contains information that would justify such action under the law of
        the Requested State.
2. The Requested State shall provide information to the Requesting State
concerning the result of any search, the place of seizure, the circumstances
of seizure, and the subsequent custody of the property seized.
3. The Requesting State shall observe any conditions imposed by the Requested
State in relation to any seized property which is delivered to the Requesting
State.
ARTICLE 17
PROCEEDS OF CRIME
1. The Requested State shall, upon request, insofar as its law permits and
subject to the provisos set out in paragraph l(a) and (b) of Article 16,
endeavour to ascertain whether any proceeds of an alleged crime are located
within its jurisdiction and shall notify the Requesting State of the results
of its enquiries.
2. Where pursuant to paragraph 1 suspected proceeds of crime are found the
Requested State shall take such measures as are permitted by its law to
prevent any dealing in, transfer or disposal of, those suspected proceeds of
crime, pending a final determination in respect of those proceeds by a Court
of the Requesting State. The Requested State shall give effect to a
confiscation order, in respect of an offence made by a Court of the Requesting
State.
3. The Requested State shall return the property obtained in satisfaction of
the confiscation order to the Requesting State.
ARTICLE 18
CONSULTATION The Contracting States shall consult promptly, at the request of
either, concerning the interpretation, the application or the carrying out of
this Treaty either generally or in relation to a particular case.
ARTICLE 19
REPRESENTATION AND EXPENSES
1. Unless otherwise provided in this Treaty the Requested State shall make all
necessary arrangements for the representation of the Requesting State in any
proceedings arising out of a request for assistance and shall otherwise
represent the interest of the Requesting State.
2. The Requested State shall meet the cost of fulfilling the request for
assistance except that the Requesting State shall bear:

   (a)  the expenses associated with conveying any person to or from the
        territory of the Requested State, and any fees, allowances or expenses
        payable to that person whilst in the Requesting State pursuant to a
        request under Articles 11 or 12;

   (b)  the expenses associated with conveying custodial or escorting
        officers; and

   (c)  where required by the Requested State, exceptional expenses in
        fulfilling the request.
ARTICLE 20
ENTRY INTO FORCE AND TERMINATION
1. This Treaty shall enter into force thirty days after the date on which the
Contracting States have notified each other in writing that their respective
requirements for the entry into force of this Treaty have been complied with.
2. This Treaty shall apply to requests whether or not the relevant acts or
omissions occurred prior to this Treaty entering into force.
3. Either Contracting State may terminate this Treaty by notice in writing at
any time and it shall cease to be in force on the one hundred and eightieth
day after the day on which notice is given. IN WITNESS WHEREOF, the
undersigned. being duly authorised thereto by their respective Governments,
have signed this Treaty. DONE at Luxembourg on the 24th day of October One
Thousand nine hundred and eighty eight in English and French, both texts being
equally authentic.
For Australia,      For the Grand Duchy of Luxembourg,

Lionel Bowen        Robert Krieps