Commonwealth Numbered Regulations

1997 No. 59 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF HUNGARY) REGULATIONS - SCHEDULE 1

                          SCHEDULE             Regulation 3
TREATY BETWEEN AUSTRALIA AND THE REPUBLIC OF HUNGARY ON MUTUAL ASSISTANCE IN
CRIMINAL MATTERS Australia and the Republic of Hungary 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. Criminal matter also includes matters
connected with offences against a law relating to taxation, customs duties,
foreign exchange control and other revenue matters. 3. Such assistance shall
consist of:

   (a)  taking of evidence and obtaining of statements of persons including
        the execution of letters rogatory;

   (b)  provision of documents and other records;

   (c)  location and identification of persons;

   (d)  execution of requests for search and seizure;

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

   (f)  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. 4. 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; and

   (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 States whether pursuant to other treaties or
arrangements or otherwise nor prevent the Contracting States providing
assistance to each other pursuant to other treaties or arrangements or
otherwise.
ARTICLE 3
CENTRAL OFFICE 1. The Contracting States shall each appoint Central Offices 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 Offices of Hungary shall be the Ministry of Justice and the Chief
Public Prosecutor's Office. Either State shall notify the other of any change
of its Central Office(s). 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:

        (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 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 prejudice its sovereignty, security, national interest, ordre
        public or other essential interests. 2. Assistance may be refused if:

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

   (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;

   (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; or

   (e)  the request relates to the prosecution or punishment of a person for
        an offence in respect of which the death penalty may be imposed or
        executed. 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
FORM AND CONTENTS OF REQUESTS 1. A request for assistance shall be in writing
except that the Central Office of the Requested State may accept a request in
another form in urgent situations. In any such situation, the request shall be
confirmed in writing within ten days thereafter unless the Central Office of
the Requested State agrees otherwise. 2. Requests for assistance shall
include:

   (a)  the purpose of the request and a description of the 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)  except in cases of request for service of documents, a description of
        the acts or 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;

   (f)  details of any particular procedure or requirement that the Requesting
        State wishes to be followed, including a statement as to whether sworn
        or affirmed evidence or statements are required;

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

   (h)  specification of any time limit within which compliance with the
        request is desired. 3. 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 information relevant to the
        investigation or proceeding;

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

   (c)  a 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; and

   (d)  information as to the fees, allowances and expenses to which a person
        appearing in the Requesting State will be entitled. 4. 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.
        5. If the Requested State considers that the information contained in
        the request is not sufficient in accordance with this Treaty 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 DOCUMENTS AND MATERIALS TO REQUESTED STATE Where required by the
Requested State, the Requesting State shall return the documents and materials
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. The Requested State shall effect service of documents
which are transmitted to it for this purpose by the Requesting State. 2. A
request to effect service of a document requiring the appearance of a person
shall be made to the Requested State not less than 60 days before the date on
which the appearance is required. In urgent cases, the Requested State may
waive this requirement. 3. The Requested State may effect service of any
document by mail or, if the Requesting State so requests, in any other manner
required by the law of the Requesting State which is not inconsistent with the
law of the Requested State. 4. The Requested State shall forward to the
Requesting State proof of service of the documents. If service cannot be
effected, the Requesting State shall be so informed and advised of the
reasons.
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, upon request, take the 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 subject matter about which persons are to be examined, including
any questions to be put. 4. The parties to the relevant proceedings in the
Requesting State, their legal representatives and representatives of the
Requesting State may, subject to the law of the Requested State, appear and
question the person being examined. 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 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 statements of persons for the purpose of an investigation
or proceeding 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 in custody in the Requested State may,
at the request of the Requesting State, be temporarily transferred to the
Requesting State to assist 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 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 14
SAFE CONDUCT 1. Subject to paragraph 2, where a person is in the Requesting
State pursuant to a request made under Articles 12 or 13:

   (a)  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

   (b)  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, 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 any contrary
        statement 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. 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 16
CERTIFICATION AND AUTHENTICATION 1. Documents or materials supporting a
request for assistance involving the use of compulsory measures or the
forfeiture of proceeds of crime shall be authenticated in accordance with
paragraph 2. Documents or materials furnished in response to a request shall
be similarly authenticated if requested. 2. Documents and materials are
authenticated for the purposes of this Treaty if:

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

   (b)  they purport to be sealed with an official or public 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 17
SEARCH AND SEIZURE 1. The Requested State shall, insofar as its law permits,
carry out requests for search and seizure and delivery of material to the
Requesting State provided the information supplied, including additional
information requested pursuant to paragraph 5 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. 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. 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. 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 Contracting States
shall mutually determine whether the property referred to in paragraph 3, or
the value of that property, should in a particular case be returned to the
Requesting State, or be retained by the Requested 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 Offices of the Contracting States may
enter into subsidiary arrangements consistent with the purposes of this Treaty
and with the laws of both Contracting States.
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 otherwise represent the interests 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 9, 12 or 13;

   (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 21
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 22
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 constitutional 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 at any time by giving six months' notice in writing to the other
through the diplomatic channel.

IN WITNESS WHEREOF, the undersigned, duly authorised thereto by their
respective Governments, have signed this Treaty.



DONE in duplicate at Budapest, on the twenty-fifth day of October One thousand
nine hundred and ninety five in English and Hungarian both texts being equally
authentic.

For Australia:                             For THE Republic 
of HUNGARY:
Donald Kingsmill                           Vastagh Pal