Commonwealth Numbered Regulations

1990 No. 441 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (SPAIN) REGULATIONS - SCHEDULE

                        SCHEDULE                     Regulation 3

TREATY ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN
AUSTRALIA AND THE KINGDOM OF SPAIN AUSTRALIA AND THE KINGDOM OF SPAIN DESIRING
to co-operate in order to facilitate the administration of justice in criminal
matters, HAVE RESOLVED to conclude a Treaty on mutual assistance in the
following terms:
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 offences within the jurisdiction of the judicial authorities of the
Requesting State at the time when assistance is requested. 2. Assistance shall
also be granted in relation to revenue offences and foreign exchange control
offences. 3. Assistance shall not include:

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

   (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 Article 15 of this Treaty;

   (c)  the transfer of prisoners to serve sentences; and

   (d)  assistance with the investigation or prosecution of purely military
        offences. 4. Subject to paragraph 5 of this Article, assistance may be
        given in the interests of justice even if the offence is not
        punishable under the law of the Requested State. 5. Where the request
        for assistance seeks the search of private premises or the seizure or
        securing of property, the request shall be executed only if the
        offence in respect of which assistance is requested is also an offence
        under the law of the Requested State.
ARTICLE 2
REFUSAL OF ASSISTANCE Assistance may be refused:

   (a)  if the request relates to political offences or offences connected
        with political offences in the opinion of the Requested State. The
        mere allegation of a political reason or motive for the commission of
        the offence shall not of itself render the offence an offence of a
        political character. For the purposes of this Treaty the following
        shall not be considered political offences:

   (i)  an attack against the life of a Head of State or a Head of Government,
        or a member of his or her family;

   (ii) an offence against the law relating to genocide; or

   (iii) any offence specified in an international agreement to which both
        Contracting States are parties;

   (b)  when the request could affect the sovereignty, the security or other
        essential public interests of the Requested State or for any other
        reason provided by its law;

   (c)  when, in respect of the offence to which the request relates, the
        person has been finally acquitted or has served the sentence in either
        of the two States or in a third State; or

   (d)  when the purpose of the request is to prosecute a person for reasons
        of race, religion, nationality, political opinion or sex, or if that
        person's position may be prejudiced for any of these reasons.
ARTICLE 3
COMPETENT AUTHORITIES AND CENTRAL OFFICE 1. A request for assistance may be
made by a person authorised by the law of the Requesting State being a
judicial authority, public prosecutor, the Attorney General or his or her
delegate. 2. The Contracting State 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 for Spain shall be the Secretaria General Tecnica, Ministry of Justice,
Madrid. Where a Contracting State designates another authority for the
purposes of this Article, it shall do so through the diplomatic channel. 3.
The request for assistance shall be conveyed by the diplomatic channel.
Nevertheless, in cases of urgency, the request shall be made through the
Central Office and shall be confirmed at the earliest possible opportunity
through the diplomatic channel. 4. The Contracting States may entrust their
consuls with the execution of procedures permitted by the law of the Requested
State.
ARTICLE 4
EXECUTION OF REQUESTS 1. A request shall be executed in accordance with the
law of the Requested State and shall be limited to the assistance expressly
requested. 2. 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. 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 these conditions, it shall
comply with the conditions. 4. The Requested state shall notify the Requesting
State of the results of the request.
ARTICLE 5
TAKING OF EVIDENCE IN THE REQUESTED STATE 1. The Requested State shall, on
request, take the evidence of witnesses and experts. 2. 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 law.
ARTICLE 6
ATTENDANCE BY REPRESENTATIVES 1. The Requesting State shall be informed of the
date and place of the execution of the request if that State so requests. 2.
Where, pursuant to a request for assistance, a person is to give evidence for
the purpose of proceedings in the Requesting State, the parties to the
relevant proceedings in that State, their legal representatives or
representatives of that State may, subject to the law of the Requested State,
appear and question the person giving that evidence.
ARTICLE 7
PROVISION AND RETURN OF DOCUMENTS AND OBJECTS 1. In response to a request, the
Requested State:

   (a)  shall send certified copies of the documents unless the requesting
        State expressingly requests the originals; or

   (b)  may refuse or postpone the delivery of material or original documents
        if its law does not permit it, or if the material or documents are
        required for proceedings within its jurisdiction. 2. Any material or
        documents which have been provided in response to a request shall be
        returned as soon as possible unless the Requested State waives their
        return.
ARTICLE 8
SERVICE OF DOCUMENTS AND DELIVERY OF PROPERTY 1. If the purpose of the request
is the service of documents or the delivery of property, the Requested State
shall serve the documents or deliver the property. 2. Service or delivery
shall be effected in accordance with the law of the Requested State and shall
be proved by a receipt signed and dated by the addressee or by a certificate
issued by the Central Office or other competent authority. Either of these
documents shall be sent to the Requesting State and, if service or delivery
cannot be effected, reasons shall be given.
ARTICLE 9
APPEARANCE OF PERSONS IN THE REQUESTING STATE 1. The Requesting State may
request the assistance of the Requested State in making a person available to
appear as a witness or an expert in proceedings in relation to a criminal
matter in the Requesting State, unless that person is the person charged, or
to assist investigations in relation to a criminal matter in the Requesting
State. 2. A request pursuant to paragraph 1 of this Article shall include a
statement setting out why the Requesting State considers it is especially
necessary that the person appear in that State. 3. The Requested State shall
invite the person named in the request to comply with it and shall inform the
Requesting State of that person's answer. 4. Any coercive measures or
penalties provided under the law of the Requesting State shall not have any
effect if the person fails to consent. 5. A request for the appearance of a
person in the Requesting State may be refused if it is received less than 45
days before the date for appearance notified in the summons. The Requesting
State shall bear this period in mind when it makes the request. 6. The request
shall state the per diem, allowances and other amounts which the person
summoned is entitled to receive in complying with the request.
ARTICLE 10
APPEARANCE OF PRISONERS IN THE REQUESTING STATE 1. Subject to the provisions
of Article 9, insofar as they are applicable, a person who is in custody in
the territory of the Requested State may be requested to appear as a witness
in proceedings in relation to a criminal matter or requested to assist in
investigations in the Requesting State and for these purposes may be
transferred temporarily provided that the person is returned to the Requested
State within the period specified by that State. 2. Transfer shall not be
permitted:

   (a)  if the person in custody does not consent;

   (b)  if that person's presence is required for the purposes of pending
        criminal proceedings;

   (c)  if the transfer may result in the extension of the person's detention;
        or

   (d)  if the Requested State opposes the transfer for any other serious
        reason. 3. The person transferred shall be maintained in custody in
        the territory of the Requesting State, unless the Requested State
        permits the person to be set at liberty. Thereafter the person shall
        be treated as a person referred to in article 9.
ARTICLE 11
SAFE CONDUCT AND IMMUNITY 1. A person who consents to give evidence or assist
an investigation in the Requesting State under Articles 9 or 10 shall not
whilst in the Requesting State pursuant to a request:

   (a)  be detained, prosecuted or punished in that State for any offence or
        be subject to any civil suit, to which the person could not be
        subjected but for his or her presence in that State, in respect of any
        act or omission which preceded the person's departure from the
        Requested State; or

   (b)  without that person's consent, be required to give evidence in any
        proceeding other than the proceeding to which the request relates. 2.
        The immunity provided for in the preceding paragraph shall cease when
        the person remains voluntarily more than 30 days in the territory of
        the Requesting State after the time when that person's presence is no
        longer required by that State or having left returns voluntarily. 3. A
        person appearing in a proceeding in the Requesting State pursuant to a
        request under Articles 9 or 10 shall not be subject to prosecution
        based on his or her testimony except that that person shall be subject
        to the laws of that State in relation to contempt and perjury.
ARTICLE 12
PROVISION OF PUBLIC AND OFFICIAL DOCUMENTS 1. The Requested State shall
provide copies of any documents or 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 in its discretion provide copies of any
official documents or records in the same manner and under the same conditions
as such documents or records may be provided to its own law enforcement and
judicial authorities.
ARTICLE 13
PROVISION OF CRIMINAL RECORDS AND DETAILS OF PRISON SENTENCES 1. When either
of the Contracting States requests the other to provide the criminal record of
a person, that State shall state the reason for the request. The criminal
record shall be provided if this is not prohibited by the law of the Requested
State. 2. The Contracting States shall, as far as possible, notify each other
of any penalties of imprisonment imposed on the nationals of the other State.
ARTICLE 14
SEARCH AND SEIZURE 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 the request contains information that would justify
such action under the law of the Requested State.
ARTICLE 15
PROCEEDS OF CRIME 1. Upon request, the Requested State shall endeavour to
locate any property or assets of a person against whom a forfeiture or
confiscation order, pecuniary penalty order, fine in lieu of such order, or
any other order having a similar effect, has been made or may be made by a
court in the Requesting State in relation to a conviction for criminal
conduct. 2. 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. 3. Where pursuant to paragraph 1, property or assets are
located, the Requested State may assist with or initiate such proceedings as
are permitted by its law to prevent any dealing in, transfer or disposal
thereof, pending a final determination in respect of that property or those
assets in any proceedings before a court of the Requesting or Requested State.
4. The Requested State shall give effect to the extent possible under its
domestic law to an order mentioned in paragraph 1 made by a court of the
Requesting State or may initiate proceedings in relation to the property or
assets found in the Requested State. 5. In the application of this Article the
rights of bona fide third parties shall be respected. 6. This Article also
applies to property used in the commission of the offence.
ARTICLE 16
CONFIDENTIALITY 1. The Requested State shall, if so requested, keep the
application for assistance, the contents of a request and its supporting
documents, and the fact of granting or refusing 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 be executed without such confidentiality.
2. The Requesting State shall, if so requested, 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 for purposes other than those stated in a request without the prior
consent of the Requested State.
ARTICLE 17
CONTENTS OF REQUESTS 1. The request for assistance shall contain the
following:

   (a)  the name of the competent authority from which the request emanates;

   (b)  except in case of a request for service of documents or the delivery
        of property, a description of the nature of the criminal matter
        including a statement setting out the relevant facts and law;

   (c)  to the extent possible, the identity, nationality and location of the
        person or persons who are the subject of the investigation or
        proceeding;

   (d)  an exact description of the assistance requested and any information
        considered useful for facilitating the effective fulfilment of the
        request;

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

   (f)  the requirements, if any, of confidentiality and the reasons therefor.
        2. Requests and supporting documents shall be transmitted in the
        language of the Requesting State.
ARTICLE 18
AUTHENTICATION Where authentication is requested, any material or document is
authenticated for the purposes of this Treaty if:

   (a)  it purports to be signed or certified by a judge, magistrate or
        officer in or of the sending State; and

   (b)  it purports to be authenticated by an official or public seal of the
        sending State.
ARTICLE 19
REPRESENTATION The Requested State shall represent the Requesting State in the
execution of any requests arising under this Treaty.
ARTICLE 20
EXPENSES 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 or 10;

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

   (c)  where required by the Requested State, exceptional expenses in
        fulfulling the request.
ARTICLE 21
PRESERVATION OF OTHER TREATIES AND ARRANGEMENTS 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.
ARTICLE 22
ENTRY INTO FORCE AND TERMINATION 1. This Treaty shall enter into force on the
last day of the month following the month in which the Contracting States have
notified each other in writing through the diplomatic channel that their
respective requirements for entry into force have been complied with. 2.
Either Contracting State may terminate this Treaty by notice in writing at any
time and it shall cease to be in force on the last day of the third month
following the month in which notice is given. IN WITNESS WHEREOF the
undersigned, being duly authorised thereto by their respective Governments,
have signed this Treaty. DONE at Madrid on the third day of July, One thousand
nine hundred and eighty-nine, in the English and Spanish languages, both texts
being equally authentic.
FOR AUSTRALIA                        FOR THE KINGDOM OF SPAIN

Michael Carter Tate                  Enrique Mugica Herzog

Minister for Justice                 Ministro de Justicia