Commonwealth Numbered Regulations

1994 No. 7 MUTUAL ASSISTANCE IN CRIMINAL MATTERS (SWITZERLAND) REGULATIONS - SCHEDULE

                            SCHEDULE                   Regulation 4

TREATY BETWEEN AUSTRALIA AND SWITZERLAND ON MUTUAL ASSISTANCE
IN CRIMINAL MATTERS Australia and Switzerland, DESIRING to extend to each
other the widest measure of co-operation 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 assistance in investigations or proceedings in respect of offences
the punishment of which falls or would fall within the jurisdiction of the
judicial authorities of the Requesting State.
2. Such assistance shall consist of:

   (a)  taking of testimony and statements of persons;

   (b)  production, preservation and handing over of documents or material;

   (c)  location and identification of persons;

   (d)  execution of requests for search and seizure, as well as requests for
        the tracing, freezing, confiscating and returning of the proceeds or
        profits of crime;

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

   (f)  service of documents; and

   (g)  other assistance consistent with the objects of this Treaty mutually
        acceptable to the Contracting Parties.
3. Assistance shall not include extradition, enforcement or execution of final
criminal judgements except to the extent permitted by the law of the Requested
State and this Treaty. ARTICLE 2 Grounds for Refusal
1. Subject to the law of the Requested State, assistance may be refused, if:

   (a)  the offence in connection with which assistance is requested is
        regarded by the Requested State as a political offence or an offence
        only under military law;

   (b)  the request concerns a fiscal offence;

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

   (d)  the results of the request for assistance are to be used to prosecute
        a person for an offence in respect of which, under the law of the
        Requested State, the person would be immune from prosecution by reason
        of lapse of time;

   (e)  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

   (f)  the Requested State is of the opinion that the request for assistance,
        if granted, would seriously impair its sovereignty, security, public
        order or other essential interests.
2. For the purpose of sub-paragraph (f) of paragraph 1 the Requested State may
include in its consideration of essential interests whether the provision of
assistance could prejudice an investigation or proceeding in that State,
prejudice the safety of any person or impose an excessive burden on the
resources of that State. ARTICLE 3 Compulsory Measures
1. Assistance involving compulsory measures may be refused where the
assistance sought relates to acts or omissions which, if committed in similar
circumstances in the Requested State, would not be punishable under the laws
of that State.
2. Paragraph 1 of this Article does not apply where the assistance requested
is directed to establishing the innocence of a person. ARTICLE 4 Limitation on
Use of Information and Material Provided
1. Without the prior consent of the Requested State the Requesting State shall
not use information or material provided by the Requested State in response to
a request for assistance for a purpose in respect of which assistance would
not be granted under this Treaty.
2. Except with the prior consent of the Requested State, the right to examine
information or material provided in response to a request may not be granted
to persons other than those affected by the request, their legal
representatives, or any victim of the relevant offence. ARTICLE 5
Confidentiality
1. The Requested State shall, in carrying out a request for assistance, use
its best endeavours to observe the standard of confidentiality requested by
the Requesting State.
2. The Requesting State shall use its best endeavours to observe the standard
of confidentiality requested of it by the Requested State in respect of
information or material furnished in response to the request for assistance.
ARTICLE 6 Central Office
1. The Contracting Parties shall each appoint a Central Office for the purpose
of this Treaty. Until the relevant Contracting Party designates another
authority, the Central Office of Australia shall be the Attorney-General's
Department in Canberra and the Central Office for Switzerland shall be the
Federal Office for Police Matters of the Federal Department of Justice and
Police in Berne.
2. Requests for assistance shall be made through the Central Offices, each of
which shall arrange for the prompt carrying out of such requests by the
appropriate competent authorities in the Requested State.
3. The Central Offices may communicate directly with each other. ARTICLE 7
Contents of Requests
1. Requests for assistance shall include:

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

   (b)  the subject matter and nature of the investigations or proceedings
        and, except in cases of requests for service of documents, a
        description of the essential acts or omissions alleged or sought to be
        ascertained, including the text, or a statement, of the law applicable
        at the place where the offence was committed;

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

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

   (e)  the full name, place and date of birth, address and any other
        information which may aid in the identification of the person or
        persons who are, at the time of the request, the subject of the
        investigations or proceedings; and

   (f)  the requirements, if any, of confidentiality and the reasons therefor.
2. Requests for assistance, to the extent necessary and insofar as possible,
shall include:

   (a)  information described under sub-paragraph (e) of paragraph 1
        concerning any witness or other person who is affected by the request;

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

   (c)  a description of the information, statement or testimony sought;

   (d)  a description of the documents or material to be produced or preserved
        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 certified;

   (e)  information as to the fees, allowances and expenses to which a person
        appearing in the Requesting State will be entitled; and

   (f)  as accurate a description as possible of any place to be searched and
        the material to be seized.
3. All documents submitted by Switzerland in support of the request shall be
in, or shall be translated into English. All documents submitted by Australia
in support of the request shall be in, or shall be translated into an official
language of Switzerland, to be specified in each case by Switzerland.
4. 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, that State may request that additional information be
furnished. ARTICLE 8 Carrying out of the Requests
1. Subject to the provisions of this Treaty, the Requested State shall apply
its law in carrying out requests for assistance as it would in relation to a
similar matter arising in the Requested State.
2. Where the law of the Requested State permits, the Requested State shall
carry out the request in accordance with the requirements specified therein.
3. The Requested State, as soon as practicable after processing the request
for assistance, shall deliver to the Requesting State the response to the
request.
4. The Requested State may postpone the delivery of material requested if such
material is required for criminal, civil or administrative proceedings in that
State. In the case of documents or records, the Requested State shall provide
copies certified to be true copies of those documents and records pending the
completion of such proceedings.
5. 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.
6. Information affecting a person who, according to the request, is not
involved in the criminal proceedings abroad, may be given if it is necessary
to establish an element of the offence and if the seriousness of the offence
justifies it.
7. 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 reasons for that decision.
8. 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. ARTICLE 9 Return of Documents and Material After
completion of proceedings in the Requesting State, that State shall return to
the Requested State upon request any documents or material provided in
carrying out the request. If a third party asserts any claims to any documents
or material in the Requested State before those documents or material are
handed over to the Requesting State, the Requesting State is bound to return
them as soon as possible after the conclusion of the proceedings. ARTICLE 10
Taking of Evidence
1. In this Treaty, the giving or taking of evidence shall include the
production of documents or material.
2. Where, pursuant to a request for assistance, a person is to give evidence
in proceedings in the Requested State, the person to whom the relevant
proceedings in the Requesting State relate, the relevant authority of the
Requesting State, and the legal representatives of any of those persons, may
be present and put questions in accordance with the rules of procedure of the
Requested State, if:

   (a)  otherwise the evidence would or would be likely to be inadmissible
        under the law of the Requesting State; or

   (b)  the Requested State is satisfied that any such presence would
        facilitate the carrying out of the request in the Requested State.
        ARTICLE 11 Right to Decline to Give Evidence A person who is required
        to give evidence in the Requested State pursuant to a request for
        assistance may decline to give evidence if under the law of either
        State the person has a right to refuse to give evidence. If any person
        claims that such a right is applicable in the Requesting State, the
        Requested State shall with respect thereto rely on a certificate of
        the Central Office of the Requesting State. ARTICLE 12 Certification
        Documents or records transmitted pursuant to this Treaty shall not
        require any form of certification unless so requested by the
        Requesting State. In such a case, and subject to the law of the
        Requested State, the certification shall be in the form requested by
        the Requesting State. ARTICLE 13 Availability of Prisoners to Give
        Evidence or Information
1. A prisoner in the Requested State may, at the request of the Requesting
State and with the consent of the prisoner, be made available to the
Requesting State to give evidence or assist in investigations.
2. Compliance with the request may be delayed if the continued presence of the
prisoner in the Requested State is necessary for the purpose of investigations
or proceedings in that State.
3. While the original sentence in the Requested State has not expired, the
Requesting State shall hold the prisoner in custody and shall return that
person in custody to the Requested State at the conclusion of the proceedings
or investigations in relation to which his or her conveyance to the Requesting
State is sought under paragraph 1 of this Article or at such earlier time as
that person's presence is no longer required.
4. The period during which the prisoner is in custody in the Requesting State
pursuant to this Article shall be deemed to be service in the Requested State
of an equivalent period of custody in that State for all purposes.
5. Where the sentence imposed on a prisoner conveyed under this Article
expires whilst the prisoner is in the Requesting State, that former prisoner
shall thereafter be entitled to such fees, allowances and expenses, including
return travel costs to the Requested State, as a person giving evidence or
assisting in investigations pursuant to Article 14.
6. A prisoner who does not consent to be available to give evidence pursuant
to this Article shall not by reason thereof be liable to any penalty or be
submitted to any coercive measure. ARTICLE 14 Availability of Other Persons to
Give Evidence or Information
1. Any person in the Requested State may be summoned as a witness or expert in
criminal proceedings being heard in the Requesting State unless that person is
a party to those proceedings, or be requested to assist in investigations in
that State.
2. The competent authorities shall request the person named in the summons or
request to comply with the summons or request and shall seek that person's
consent thereto. The Requested State shall communicate forthwith that person's
answer to the Requesting State.
3. A person named in a summons or request, on consenting to appear in the
Requesting State, is entitled to require that State to advance that person
money to cover fees, allowances and expenses.
4. A person who does not answer a summons to appear as a witness or expert
shall not by reason thereof be liable to any penalty or be submitted to any
coercive measure notwithstanding any contrary statement in the summons.
ARTICLE 15 Safe Conduct
1. A person made available to give evidence in proceedings or to assist in
investigations in the Requesting State shall not be prosecuted or arrested in
the Requesting State or be subject to civil suit, being a civil suit to which
the person could not be subjected if the person were not in the Requesting
State, for any act or omission which preceded that person's departure from the
Requested State.
2. A person made available to give evidence in proceedings or to assist in
investigations in the Requesting State pursuant to Article 13 or 14 shall not
be required to give evidence in any legal proceedings other than the
proceedings to which the request relates.
3. Paragraphs 1 and 2 of this Article shall cease to apply if that person, not
being detained as a prisoner conveyed under Article 13, has not left the
Requesting State within the period of thirty days after that person has either
given evidence or assisted in investigations or has been officially notified
that his or her appearance is no longer required.
4. A person appearing before an authority in the Requesting State pursuant to
Article 13 or 14 shall not be subject to any prosecution based on the evidence
given other than for the offence of perjury. ARTICLE 16 Search and Seizure;
Proceeds of Crime
1. The Requested State shall, subject to its law, carry out requests for
search and seizure of documents or material relating to an offence as well as
requests for the tracing, freezing or confiscating of the proceeds or profits
of crime. In cases of urgency, the Requested State shall take all available
interim measures to preserve the existing situation, safeguard threatened
legal interests and protect jeopardised evidence.
2. Such documents, material, proceeds or profits may, on the application of
the Requesting State, be handed over to that State to be remitted to the
victims of the relevant offence or any other party entitled to them. ARTICLE
17 Service of Documents
1. The Requested State shall effect service of a document required to be
served by the law of the Requesting State in connection with any investigation
of an offence or proceeding.
2. A request to effect service of a document shall be made not less than 30
days before the date on which the personal appearance of any person is
required. In urgent cases, the Requested State may waive that requirement.
ARTICLE 18 Police Co-operation
1. To the extent permitted by their respective laws, the Contracting Parties
shall provide assistance between their respective police or other law
enforcement agencies except that, where compulsory measures are requested, the
other provisions of this Treaty shall apply.
2. Communications in relation to mutual assistance referred to in paragraph 1
of this Article shall normally be through the International Criminal Police
Organisation (INTERPOL/ICPO). ARTICLE 19 Representation and Expenses
1. Unless otherwise provided in this Treaty the Requested State shall make all
necessary arrangements to represent the interests of the Requesting State in
relation to requests for assistance under this Treaty.
2. The Requested State shall meet the cost of fulfilling the request for
assistance except that the Requesting State shall bear:

   (a)  the fees, allowances and expenses relating to the conveying of persons
        pursuant to Article 14, and expenses relating to the conveying and
        custody of prisoners pursuant to Article 13;

   (b)  the allowances and expenses incurred in conveying custodial or
        escorting officers; and

   (c)  where required by the Requested State, exceptional expenses in
        fulfilling the request for which the authorities of that State are
        liable to third parties. ARTICLE 20 Other Assistance This Treaty shall
        not derogate from obligations subsisting between the Contracting
        Parties pursuant to other treaties or arrangements nor prevent the
        Contracting Parties providing assistance to each other pursuant to
        other treaties or arrangements. ARTICLE 21 Consultation and Dispute
        Settlement
1. The Central Offices shall consult, at the request of either, on matters
arising in relation to specific cases dealt with under this Treaty.
2. The Contracting Parties shall consult, at the request of either, concerning
matters not resolved under paragraph 1 of this Article and on matters
concerning the interpretation or the application of this Treaty.
3. Any dispute concerning the interpretation of this Treaty which has not been
resolved by consultations under paragraph 2 of this Article may be referred by
either Party to the International Court of Justice in conformity with the
Statute of that Court.
4. Any dispute settlement in accordance with paragraph 3 of this Article shall
not affect the validity of the final decision of an executive or judicial
authority of a Contracting Party made in connection with a request giving rise
to the dispute. ARTICLE 22 Entry into Force and Termination
1. This Treaty shall enter into force 180 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 made pursuant to it 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 180 days 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
Berne in Switzerland on the twenty-fifth day of November One thousand nine
hundred and ninety-one in English and German, both texts being equally
authentic.
MICHAEL DUFFY                            A. KOLLER

FOR AUSTRALIA                            FOR SWITZERLAND