Commonwealth Numbered Regulations

MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF ECUADOR) REGULATIONS 1997 - SCHEDULE

                          SCHEDULE            Subregulation 4 (2)
TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC
OF ECUADOR ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS The Government of
Australia and the Government of the Republic of Ecuador 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 Parties shall, in accordance with this Treaty, grant to
each other mutual assistance in investigations or proceedings in respect of
criminal matters.
2. Criminal matter also includes matters connected with offences against a law
relating to taxation, customs duties, foreign exchange control and other
revenue matters.
3. For the purposes of this Treaty the term "letters rogatory" means:

   (a)  judicial letters of request;

   (b)  in the case of Australia, requests from the Commonwealth
        Attorney-General, and in the case of Ecuador the Procurador General
        del Estado; or

   (c)  requests from any other authority competent under the laws of the
        Requesting State.
4. Such assistance shall consist of:

   (a)  where the Requesting State issues letters rogatory, the taking of
        evidence and obtaining of statements of persons;

   (b)  where the Requesting State so requests, the provision of documents and
        other records from the files of the Requested State;

   (c)  where the Requesting State so requests, the location and
        identification of specified persons;

   (d)  execution of requests for search and seizure of documents or other
        things;

   (e)  adoption of measures to locate, restrain and forfeit the proceeds of
        crime;

   (f)  where the Requesting State so requests, seeking the consent of persons
        to be available to give evidence or to assist in investigations in the
        Requesting State, and where such persons are in custody arranging for
        their temporary transfer to that State;

   (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.
5. Assistance shall not include:

   (a)  the extradition of any person;

   (b)  the execution in the Requested State of criminal judgments imposed in
        the Requesting State except to the extent permitted by the law of the
        Requested State and this Treaty;

   (c)  the transfer of persons in custody to serve sentences.
ARTICLE 2
OTHER ASSISTANCE
This Treaty shall not derogate from obligations subsisting between the
Contracting Parties whether pursuant to other treaties or arrangements or
otherwise nor prevent the Contracting Parties providing assistance to each
other pursuant to other treaties or arrangements.
ARTICLE 3
CENTRAL OFFICE
1. To ensure that requests under this Treaty are transmitted and received in
accordance with their respective laws, the Contracting Parties shall each
appoint a Central Office to transmit and receive requests for the purpose of
this Treaty. The Central Office of Australia shall be the Attorney-General's
Department, Canberra and the Central Office of Ecuador shall be the Direcci—n
General de Asuntos Legales of the Ministry of Foreign Affairs. Either State
shall notify the other of any change of its Central Office.
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 the prosecution or punishment of a person for
        an offence that is regarded by the Requested State as an offence of a
        political character; or 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 the prosecution of a person for 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 for the purpose of prosecuting or punishing 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 prejudice its sovereignty, security, national interest
        or other essential interests.
2. Assistance may be refused if:

   (a)  the request relates to the prosecution or punishment of a person for
        acts or omissions which, if they had taken place within the
        jurisdiction of the Requested State, would not have constituted an
        offence;

   (b)  the request relates to the prosecution or punishment of a person for
        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 an offence committed outside its territory in similar
        circumstances;

   (c)  the request relates to the prosecution or punishment of a person for
        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

   (d)  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 shall
consider whether assistance may be granted subject to such conditions as it
deems necessary. If the Requesting State accepts assistance subject to
conditions, it shall comply with those conditions.
ARTICLE 5
CONTENTS OF REQUESTS
1. Requests for assistance shall include:

   (a)  the purpose of the request and the type of assistance sought;

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

   (c)  a description of the nature of the criminal matter including a
        statement of the relevant laws;

   (d)  a description of the acts, omissions or matters alleged to constitute
        the offence;

   (e)  the court order, if any, sought to be enforced and a statement to the
        effect that it is a final order. Such a request shall be in the form
        of a letter rogatory;

   (f)  details of any procedure that the Requesting State wishes to be
        followed or any formalities it wishes observed. Where evidence or
        statements are sought the request shall be in the form of a letter
        rogatory and shall specify whether sworn or affirmed evidence or
        statements are required;

   (g)  the requirements, if any, of confidentiality and the reasons therefor;
        and

   (h)  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)  information concerning identity, nationality and location of the
        person or persons who are the subject of, or who may have information
        relevant to, the investigation or proceeding;

   (b)  details of the information, statement or evidence sought;

   (c)  a precise description of the documents, records or articles of
        evidence to be produced as well as a description of the appropriate
        person to be asked to produce them. When a person is to be asked to
        produce such exhibits the request shall comply with this sub-
        paragraph and the preceding sub-paragraph and shall be made by means
        of a letter rogatory; and

   (d)  information as to the allowances and expenses to which a person
        appearing in the Requesting State will be entitled.
3. Requests, supporting documents and other communications made pursuant to
this Treaty shall be in the language of the Requesting State and accompanied
by a translation into the language of the Requested State.
4. If the Requested State considers that the information contained in the
request is not sufficient to enable the request to be dealt with, it may
request additional information.
ARTICLE 6
EXECUTION OF REQUESTS
1. Requests for assistance shall be carried out in accordance with the law of
the Requested State and, insofar as it is not incompatible with that law, in
the manner requested by the Requesting State.
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 under this Treaty when no longer needed for the relevant
investigation or proceeding.
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 information
and evidence 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 information or evidence obtained, nor
anything derived from either, for purposes other than those stated in a
request without the prior consent of the Requested State.
ARTICLE 9
SERVICE OF DOCUMENTS
1. Where the Requesting State issues letters rogatory seeking the service of
documents the Requested State shall have such documents served by its
competent authorities.
2. A request to effect service of a document requiring the appearance of a
person in court 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.
3. The Requested State shall serve any document in the manner required by the
law of the Requesting State provided it is not inconsistent with the law of
the Requested State.
4. The Requested State shall return the letter rogatory to the Requesting
State together with a certificate that service has been effected. If service
cannot be effected, the Requesting State shall be so informed and advised of
the reasons.
ARTICLE 10
TAKING OF EVIDENCE
1. If the Requesting State, in connection with a proceeding relating to a
criminal matter, requests, by means of a letter rogatory, the taking of
testimony of witnesses, the Requested State shall take the testimony and
transmit it to the Requesting State.
2. The Requesting State may also request, by means of a letter rogatory, the
production by specified persons of documents, records or other material in
their possession and the Requested State shall, subject to its laws and
procedures, order such production.
3. A request to take testimony from a witness shall be made by letter rogatory
and shall contain a list of questions to be put to the witness. The
authorities of the Requested State may refuse to ask any questions which are
contrary to its constitutional or legal provisions.
4. 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.
5. If any person claims that there is a right to decline to give evidence
under the law of the Requesting State, the Central Office of that State shall,
upon request, provide a certificate to the Central Office of the Requested
State as to the existence of that right. In the absence of evidence to the
contrary, the certificate shall provide sufficient evidence as to the
existence of that right.
ARTICLE 11
OBTAINING OF STATEMENTS OF PERSONS
1. The Requested State shall, upon request, endeavour to obtain from specified
persons statements which may later be used in an investigation or proceeding
described in the request in relation to a criminal matter in the Requesting
State.
2. For the purposes of requests under this Article the Requesting State shall
specify the subject matter about which it seeks statements from persons
including any questions which it seeks to be put to the person.
ARTICLE 12
AVAILABILITY OF PERSONS IN CUSTODY TO GIVE EVIDENCE
OR TO ASSIST INVESTIGATIONS
1. A person who is held in custody in the Requested State may, at the request
of the Requesting State, and if the laws of the Requested State permit and if
its competent authorities agree, be temporarily transferred to the Requesting
State to assist in the conduct of investigations or to give evidence.
2. The Requested State shall not transfer a person in custody to the
Requesting State unless the person consents to that transfer.
3. While the person transferred is required to be held in custody under the
law of the Requested State, the Requesting State shall hold that person in
custody and shall return that person in custody to the Requested State at the
conclusion of the matter in relation to which transfer was sought under
paragraph 1 of this Article or at such earlier time as the person's presence
is no longer required.
4. 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 and be treated as a person referred to in Article 13.
ARTICLE 13
AVAILABILITY OF OTHER PERSONS TO GIVE
EVIDENCE OR ASSIST INVESTIGATIONS
1. The Requesting State may request the assistance of the Requested State in
obtaining a person's consent to:

   (a)  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)  assist in the conduct of investigations in relation to a criminal
        matter in the Requesting State.
2. The Requested State shall, if it has received adequate assurances that all
measures necessary for the person's protection will be taken by the Requesting
State, request the person to consent to appear as a witness in proceedings or
to assist in the conduct of investigations.
ARTICLE 14
IMMUNITIES
1. When a person is in the Requesting State pursuant to a request made under
Article 12 or 13 that person shall not be detained, prosecuted or punished in
the Requesting State, for any offence, nor be subject to any civil suit, being
a civil suit to which the person could not be subjected if the person were not
in the Requesting State, in respect of any act or omission which preceded the
person's departure from the Requested State; and, furthermore, that person
shall not, without that person's consent, be required to give evidence in any
proceeding or to assist any investigation other than the proceeding or
investigation to which the request relates.
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 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 in the Requesting State pursuant to a request made under
Articles 12 or 13 shall be subject to the law of that State relating to
contempt of court, perjury and the making of false declarations.
4. A person who does not consent to a request pursuant to Articles 12 or 13
shall not, by reason thereof, be liable to any penalty or be subjected to any
coercive measure notwithstanding anything to the contrary in the request or in
any document accompanying the request.
ARTICLE 15
PROVISION OF PUBLICLY AVAILABLE
AND OFFICIAL DOCUMENTS
1. The Requested State shall provide copies of documents and records that are
open to public access as part of a public register or otherwise, or that are
available for purchase by the public.
2. Subject to its laws and if deemed appropriate, 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.
3. Nothing in this Article shall be understood as imposing upon a Contracting
Party an obligation to provide any document which, according to its laws or
procedures, is required to be kept confidential.
ARTICLE 16
CERTIFICATION AND AUTHENTICATION
1. When a request for assistance is supported by documents which have the
effect of requiring the seizure or forfeiture of proceeds or instrumentalities
of crime, such documents shall be authenticated. Documents provided in
response to a request shall be similarly authenticated if so requested.
2. For the purposes of this Treaty, documents are authenticated:
When the document is to be used in Australia:

   (a)  if it purports to be signed or certified by a Judge, Magistrate or
        other judicial officer in or of Ecuador; and

   (b)  if it purports to be sealed with an official or public seal of Ecuador
        or of a Minister of State, or of a department or officer of the
        Government, of Ecuador.
When the document is to be used in Ecuador:

   (a)  if it is signed or certified by a magistrate, judge or other competent
        authority of Australia; and

   (b)  if the signature of the magistrate, the judge or the competent officer
        sending the document is legalized by the Department of Foreign Affairs
        and Trade of Australia in accordance with its practice.
ARTICLE 17
SEARCH AND SEIZURE
1. The Requested State shall, insofar as its law permits, carry out requests
for search and seizure and delivery of specified material to the Requesting
State provided the information supplied, including additional information
requested pursuant to paragraph 4 of Article 5, if any, would justify such
action under the law of the Requested State.
2. The Requested State shall provide such information as may be required by
the Requesting State concerning the result of any search, the place of
seizure, the circumstances of seizure, and the subsequent custody of the
material seized.
3. The Requesting State shall observe any conditions imposed by the Requested
State in relation to any seized material which is delivered to the Requesting
State.
ARTICLE 18
PROCEEDS OF CRIME
1. The Requested State shall, upon request, endeavour to ascertain whether any
proceeds of a crime are located within its jurisdiction and shall notify the
Requesting State of the results of its inquiries. In making the request, the
Requesting State shall notify the Requested State of the basis of its belief
that such proceeds may be located in its jurisdiction.
2. When 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.
3. The Requested State shall, to the extent permitted by its law, give effect
to a final order forfeiting or confiscating the proceeds of crime made by a
court of the Requesting State. A request for the enforcement of such an order
shall be made to the Requested State by means of a letter rogatory.
4. In the application of this Article, the rights of bona fide third parties
shall be respected under the law of the Requested State.
5. The Requested State shall return the property referred to in paragraph 3,
or the value of that property, to the Requesting State.
6. In this Article "proceeds of crime" means any property suspected, or found
by a court, to be property derived or realized, directly or indirectly, as a
result of the commission of an offence or to represent the value of property
and other benefits derived from the commission of an offence.
ARTICLE 19
SUBSIDIARY ARRANGEMENTS
The Central Office of each Contracting Party may make arrangements consistent
with the purposes of this Treaty, and with the laws of both Contracting
Parties, to facilitate the application of the Treaty.
ARTICLE 20
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 represent the
interests of the Requesting State in the execution of a request.
2. The Requested State shall meet the cost of fulfilling the request for
assistance. The Requesting State shall bear the following costs:

   (a)  the expenses associated with conveying any person to or from the
        territory of the Requested State, and any fees, allowances or expenses
        payable while that person is in the Requesting State pursuant to a
        request under Articles 12 or 13;

   (b)  the expenses associated with conveying custodial or escorting officers
        including allowances or expenses payable while those officers are in
        the Requesting State; and

   (c)  where required by the Requested State, exceptional expenses in
        fulfilling the request.
ARTICLE 21
CONSULTATION
The Contracting Parties 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 particular matters.
ARTICLE 22
ENTRY INTO FORCE AND TERMINATION
1. This Treaty shall enter into force thirty days after the date on which the
Contracting Parties 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 Party 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 authorized thereto, have signed this Treaty. DONE at
Quito, on the 16th day of December of One Thousand nine hundred and ninety
three in English and Spanish both texts being equally authentic.
FOR THE GOVERNMENT           FOR THE GOVERNMENT OF

OF AUSTRALIA                 THE REPUBLIC OF ECUADOR

Dr Dominique F J J           Diego Paredes,
De Stoop,
AMBASSADOR OF                MINISTER FOR

AUSTRALIA                    EXTERNAL AFFAIRS