Commonwealth Numbered Regulations

1993 No. 357 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (REPUBLIC OF ITALY) REGULATIONS - SCHEDULE

                                 SCHEDULE                   Regulation 4

TREATY ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN
AUSTRALIA AND THE REPUBLIC OF ITALY Australia and the Republic of Italy,
desiring to promote their collaboration in the field of assistance in criminal
matters have agreed as follows:
ARTICLE 1
SCOPE OF APPLICATION 1. Each Contracting State shall, upon request, in
accordance with the provisions of this Treaty, grant to the other State
assistance in criminal proceedings and investigations relating to a criminal
offence. 2. Such assistance shall consist of:

   (a)  location and identification of persons;

   (b)  service of documents;

   (c)  provision of documents and records;

   (d)  execution of requests for search and seizure;

   (e)  taking of evidence and statements of persons;

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

   (g)  tracing, freezing and confiscation of the proceeds of crime. 3. Each
        Contracting State shall grant to the other State other assistance
        which is not inconsistent with its laws. 4. This Treaty does not apply
        to offences which are exclusive to military law.
ARTICLE 2
CENTRAL AUTHORITIES A request under this Treaty shall be made by a Central
Authority for each Contracting State. The Central Authorities shall
communicate directly with each other. For Australia the Central Authority
shall be the Attorney-General's Department. For the Republic of Italy the
Central Authority shall be the Ministry of Grace and Justice.
ARTICLE 3
CONTENTS OF REQUEST 1. A request for assistance shall include:

   (a)  the name of the authority conducting the criminal proceeding or
        investigation relating to a criminal offence to which the request
        relates;

   (b)  the subject matter and nature of the criminal proceeding or
        investigation relating to a criminal offence and mentioning the
        relevant law;

   (c)  a description of the evidence or information sought or the acts to be
        performed;

   (d)  the purpose for which the evidence, information or action is sought;
        and

   (e)  any requirements for confidentiality. 2. Where appropriate, a request
        shall include:

   (a)  available information on the identity and whereabouts of the person to
        be located;

   (b)  the identity and location of the person to be served, that person's
        relationship to the proceeding, and the manner in which service is to
        be made;

   (c)  the identity and location of the person from whom evidence is sought;

   (d)  as accurate a description as possible of the place to be searched and
        the property to be seized;

   (e)  a description of the manner in which any evidence is to be taken and
        recorded;

   (f)  the information or evidence sought and, where applicable, a list of
        any particular questions to be answered; and

   (g)  a description of any particular procedure to be followed in executing
        the request. 3. A request shall indicate the allowances and expenses
        to which a person appearing in the Requesting State will be entitled.
        4. A request and accompanying documents shall be in both English and
        Italian.
ARTICLE 4
ADDITIONAL INFORMATION 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 shall request that additional information be furnished.
ARTICLE 5
EXECUTION OF REQUESTS 1. The Central Authority of the Requested State shall
promptly comply with a request or, if appropriate, transmit it to the
competent authority, which shall do everything in its power to execute a
request. 2. The Requested State, as soon as practicable after processing the
request for assistance, shall deliver to the Requesting State the response to
the request and, if required, the original request for assistance. 3. The
Requested State may postpone execution of a request or grant it subject to
conditions if the requested assistance would prejudice an ongoing
investigation or proceeding in the Requested State. The Requested State may
also impose conditions where the granting of assistance would impose too great
a burden on its resources. 4. 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 executing the request.
ARTICLE 6
REFUSAL OF ASSISTANCE 1. The Requested State may refuse assistance if:

   (a)  the offence in connection with which assistance is requested is a
        political offence;

   (b)  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 person's position may be prejudiced for any of these
        reasons;

   (c)  it is of the opinion that the execution of the request for assistance
        would seriously impair its sovereignty, security, or other public or
        national interests;

   (d)  the request relates to an offence for which, in the Requesting State,
        the offender has been finally acquitted or has served the sentence
        imposed or has the benefit of a pardon or amnesty;

   (e)  the request relates to conduct which is not an offence or could not be
        prosecuted in the Requested State in similar circumstances; or

   (f)  the provision of the assistance would, or would be likely to,
        prejudice the safety of any person. 2. 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. The Requesting State shall comply with conditions imposed
        by the Requested State. 3. The Requested State shall promptly inform
        the Requesting State of a decision not to comply in whole or in part
        with a request for assistance and the reason for that decision.
ARTICLE 7
RETURN OF MATERIAL The Requesting State shall return to the Requested State
upon request any documents, records, or articles furnished in execution of a
request, as soon as possible.
ARTICLE 8
PROTECTING CONFIDENTIALITY AND RESTRICTING
USE OF EVIDENCE AND INFORMATION 1. The Requested State shall, if so requested,
keep 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 Requested State may require that evidence and
information provided be kept confidential in accordance with conditions.
Nevertheless, disclosure may be made where necessary as evidence in a public
proceeding. 3. The Requesting State shall not use evidence or information
obtained for purposes other than those stated in the request without the prior
consent of the Requested State except that a Requesting State may use such
evidence or information where it is obliged by its law to prosecute persons in
respect of that evidence or information.
ARTICLE 9
SERVICE OF DOCUMENTS 1. Each Contracting State, upon request, shall cause
service of any document of the other State. 2. A request for service of a
document requiring the appearance of a person before an authority of the
Requesting State shall be transmitted to the Requested State not less than 40
days before the scheduled appearance. In urgent cases, the Requested State may
waive this requirement. 3. The Requested State shall return a statement of
service.
ARTICLE 10
TAKING OF EVIDENCE BY THE REQUESTED STATE 1. Each Contracting State, upon
request, shall take the evidence of witnesses to be used in criminal
proceedings in the territory of the other State. 2. For the purpose of this
Treaty, the giving or taking of evidence shall include the production of
documents, records or other articles. 3. If the law of the Requested State
permits, it may allow the presence of an accused and representatives of the
Requesting State as well as counsel for those persons and for the relevant
witness. The competent authority may provide persons permitted to be present
the opportunity to question the witness in accordance with the laws of the
Requested State. 4. The witness may decline to give evidence where the law of
the Requested State would permit that witness to decline to give evidence in
similar circumstances in proceedings in the Requested State. Testimonial
privileges under the laws of the Requesting State shall not apply in the
execution of a request, but such questions of privilege shall be preserved for
the Requesting State. 5. If the person summoned does not appear to give
evidence, refuses or fails to give evidence, or gives false evidence, the
Requested State shall apply the provisions and sanctions of its own law. 6. A
witness shall be entitled to such allowances as may be provided for by the law
of the Requested State.
ARTICLE 11
OBTAINING OF STATEMENTS OF PERSONS
IN THE REQUESTED STATE Each Contracting State may request the other State to
obtain the statements of persons for the purposes of a criminal matter. The
Requested State shall endeavour to obtain the statements referred to.
ARTICLE 12
TAKING OF EVIDENCE OR ASSISTING IN INVESTIGATIONS
IN THE REQUESTING STATE 1. In the case of a request for a person to appear as
a witness in a criminal proceeding or to assist in investigations in the
Requesting State, the Requested State shall request that person to comply with
the request and seek that person's consent thereto. 2. The person shall be
entitled to such allowances and expenses, including return travel costs to the
Requested State, as are provided for by the law of the Requesting State.
ARTICLE 13
AVAILABILITY OF PRISONERS TO GIVE EVIDENCE
OR TO ASSIST IN INVESTIGATIONS 1. Each Contracting State may transfer
temporarily, upon request, to the other State a prisoner in custody to give
evidence and to assist in investigations, provided the prisoner consents. 2.
The Requesting State shall hold the prisoner in custody, if the original
sentence has not expired, and shall return the prisoner in custody to the
Requested State at the conclusion of the proceeding in relation to which the
prisoner's transfer is sought or at such earlier time as the prisoner's
presence is no longer required, unless the Requested State formally requests
the prisoner be discharged. 3. Where the sentence imposed on a person
transferred under this Article expires while the person is in the Requesting
State, that person shall thereafter be entitled to such allowances and
expenses, including return travel costs to the Requested State, as a person
transferred pursuant to Article 12.
ARTICLE 14
IMMUNITY 1. A person who consents to give evidence in proceedings or to assist
in investigations in the Requesting State under Articles 12 or 13 shall not be
prosecuted, detained or punished for any offence or sentence, concerning
criminal law, which preceded the person's departure from the Requested State.
Nor will there be advantage taken of the presence of that person for the
purpose of civil proceedings in relation to facts which preceded the person's
departure from the Requested State. 2. Immunity provided in this Article shall
cease if, fifteen days after the person appearing has been notified that his
or her presence is no longer required and that person, being free to leave,
has not left the Requesting State or, having left, has returned. 3. A witness
appearing before an authority in the Requesting State shall not be subject to
prosecution based on his or her evidence to the extent that the evidence is
true. 4. A person who consents to be transferred pursuant to Articles 12 or 13
shall not be required to give evidence in proceedings other than the
proceedings to which the request relates unless the person consents. The
Requested State's consent shall also be required in the case of a person
transferred pursuant to Article 13. 5. A person who does not consent pursuant
to paragraph 1 of this Article shall not by reason thereof be liable to any
penalty or be submitted to any coercive measures notwithstanding any contrary
statement in the request.
ARTICLE 15
PROVISION OF DOCUMENTS AND RECORDS 1. Each Contracting State shall provide,
upon request, to the other State, copies of official documents and records
that are open to public access. 2. The Requested State may provide, upon
request, copies of any official document or record, not open to public access,
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
AUTHENTICATION Each Contracting State shall, upon request, authenticate any
documents, records or articles to be transmitted to the other State under this
Treaty in the manner, subject to its law, required by the other State.
ARTICLE 17
SEARCH, SEIZURE AND CONFISCATION 1. The Requested State shall, within the
limits of its law, execute requests for search and seizure of documents or
property relating to an offence as well as requests for confiscation of
proceeds or profits of crime. In urgent cases, the Requested State shall adopt
all possible interim measures in order to preserve the existing situation and
to safeguard threatened legal interests and evidence. 2. Such documents,
property, proceeds or profits of crime shall, upon request and within the
limits of the law of the Requested State, be confiscated and handed over to
the Requesting State. The rights of third parties shall in any case be
protected.
ARTICLE 18
REPRESENTATION AND EXPENSES 1. In any proceedings arising out of a request for
assistance the Requested State shall represent the interests of the Requesting
State within the limits of its law. 2. Each State shall render assistance
without cost to the other State except for:

   (a)  allowances of private experts specified in a request;

   (b)  all expenses and allowances related to transfer of witnesses pursuant
        to Article 12; and

   (c)  all expenses related to the transfer and custody of witnesses in
        custody pursuant to Article 13.
ARTICLE 19
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 20
ENTRY INTO FORCE AND TERMINATION 1. This Treaty shall enter into force on the
first day of the month following the period of three months after the date on
which the Contracting States have notified each other that their respective
requirements for the entry into force of this Treaty have been complied with.
2. This Treaty shall apply also to the execution of requests submitted before
its entry into force as well as to those requests submitted after its entry
into force that refer to facts occurring prior to its entry 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 first day of the month following
the period of six months after the date of receipt of such notice. IN WITNESS
WHEREOF, the undersigned, being duly authorised thereto by their respective
Governments, have signed this Treaty. DONE at Melbourne on the twenty-eighth
day of October One Thousand nine hundred and eighty eight in English and
Italian both texts being equally authentic.
For Australia                                  For the Republic of Italy

Michael Tate                                           Gilberto Bonalumi