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MUTUAL ASSISTANCE IN CRIMINAL MATTERS (MONACO) REGULATIONS 2001 2001 NO. 139 - SCHEDULE 1
Treaty on Mutual Assistance in Criminal Matters
(regulation 3)
TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE
GOVERNMENT OF HIS SERENE HIGHNESS THE PRINCE OF MONACO ON MUTUAL ASSISTANCE IN
CRIMINAL MATTERS
THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF HIS SERENE
HIGHNESS THE PRINCE OF MONACO,
DESIRING to make more effective the
co-operation of the two States in the suppression of crime by concluding a
treaty on mutual assistance in criminal matters,
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 criminal
matters.
2. Such assistance shall consist of any assistance consistent with
the objects of this Treaty which is not inconsistent with the law of the
Requested State.
3. Assistance shall not include:
(a) the extradition of any
person;
(b) the execution in the Requested State of criminal judgements
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 agreements or arrangements in effect between the Contracting
Parties, nor prevent the Contracting Parties providing assistance to each
other pursuant to other agreements or arrangements.
Article 3
Central Office
1. Each Contracting Party hereby appoints a Central Office to transmit and
receive requests for the purpose of this Treaty. The Central Office of
Australia is the Attorney-General's Department, Canberra and the Central
Office of the Principality of Monaco is the Direction des Services
Judiciaires. Either State shall notify the other of any change of its Central
Office.
2. Requests for assistance shall be transmitted through the
diplomatic channel and shall be addressed to the Central Office of the
Requested State which shall arrange for the prompt carrying out of such
requests.
3. In case of urgency, requests for assistance may be transmitted
directly by the Central Office of the Requesting State to the Central Office
of the Requested State. Such transmission may be effected through the
International Criminal Police Organisation (INTERPOL).
4. Responses to
requests for assistance, together with the relevant documents, shall be
transmitted through the diplomatic channel.
Article 4
Refusal of assistance
1. Assistance shall be refused if:
(a) the request relates to the prosecution
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 person has been finally
acquitted or pardoned in the Requested or Requesting State or has served the
sentence imposed in either State;
(c) there are substantial grounds for
believing that:
(i) 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
(ii) that person's position
may be prejudiced for any of the abovementioned reasons; or
(d) the Requested
State is of the opinion that the request, if granted, would prejudice its
sovereignty, security, national interest or other essential interests.
2.
Assistance may be refused if:
(a) the request relates to the prosecution 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 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 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
Contents of requests
1. Requests for
assistance shall include the following information:
(a) the authority on
whose behalf the request is made;
(b) the objects of, and reasons for, the
request;
(c) except in cases of a request for service of documents:
(i) a
description of the acts or omissions or matters alleged to constitute the
offence;
(ii) a copy of the provisions of the relevant enactments or, where
this is not possible, a statement of the relevant law creating the offence;
and
(d) the court order, if any, sought to be enforced and a statement to the
effect that it is a final order;
(e) details of any particular procedure or
requirement that the Requesting State wishes to be followed.
2. Requests for
assistance, to the extent necessary and insofar as possible, shall also
include:
(a) the identity, nationality and location of the relevant person or
persons;
(b) a description of the evidence to be produced; and
(c) relevant
details 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 shall be accompanied by a translation into the language
of the Requested State.
4. If the Requested State considers that the
information contained in a request is not sufficient to enable the request to
be dealt with in accordance with this Treaty, 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 inform the Requesting
State as soon as possible 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.
Article 8
Protecting
confidentiality
1. If so requested, each Contracting Party shall, to the
extent permitted by its law, keep confidential requests for assistance and
responses thereto.
2. The Requesting State shall not use documents or
material obtained 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 received by the
Central Office of 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 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. The Requested State shall, on
request, take the evidence of witnesses and experts.
2. On express request,
the Requesting State shall be informed in good time by the Requested State of
the date, time and place of the execution of a request made pursuant to this
Article, so that the interested parties may be present.
3. 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) the law of the
Requesting State permits that witness to decline to give evidence in such
proceedings in the Requesting State.
4. 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
Availability of persons in custody to give evidence
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 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 is stipulated by the Requested State.
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.
Article 12
Availability of other persons to give evidence
If the Requesting
State considers the personal appearance of a witness or expert before its
judicial authorities especially necessary, it shall so mention in its request
for service of the summons and the Requested State shall invite the witness or
expert to appear. The Requested State shall inform the Requesting State of the
reply of the witness or expert.
Article 13
Safe conduct
1. Subject to
paragraph 3, where a person is in the Requesting State pursuant to a request
made under Articles 11 or 12:
(a) that person shall not be prosecuted,
detained, nor subjected to any other restriction of personal liberty in the
territory of the Requesting State, for any offence or conviction 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 other than the proceeding to which the request relates.
2. Where
the Requesting State seeks the presence of a person pursuant to
Articles 11 or 12, it shall advise the Requested State of any civil suit
against the person of which it is aware unless the law of the Requesting State
protects the person from such suits.
3. 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 necessary or,
having left, has returned.
4. A witness or expert who has failed to answer a
summons to appear, service of which has been requested pursuant to this
Treaty, shall not, even if the summons contains a notice of penalty, be
subjected to any punishment or measure of restraint, unless subsequently he or
she voluntarily enters the territory of the Requesting State and is there
again duly summoned.
Article 14
Provision of publicly available and official
documents
1. The Requested State shall provide copies of documents that are
available to the public.
2. The Requested State may provide copies of any
official document in the same manner and under the same conditions as such
document may be provided to its own judicial or other authorities.
Article 15
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 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 16
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 its request, the Requesting State shall set out the basis
of its belief that such proceeds may be located in the jurisdiction of the
Requested State.
2. Where, pursuant to paragraph 1, suspected proceeds of
crime are found, the Requested State shall, on request of the judicial
authorities of the Requesting State, 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, on request
and to the extent permitted by its law, give effect to a final order made by a
court of the Requesting State confiscating the proceeds of crime restrained
pursuant to paragraph 2.
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 unless
the offence which resulted in the confiscation order referred to in paragraph
3 was within the jurisdiction of the Requested State.
Article 17
Certification and authentication
1. Documents or materials supporting a
request for assistance involving the use of compulsory measures including
search and seizure or the confiscation of proceeds of crime shall be
authenticated in accordance with paragraph 2 of this Article. If requested by
the Requesting State, documents or materials furnished by the Requested State
shall be similarly authenticated.
2. Documents and materials are
authenticated for the purposes of this Treaty if:
(a) they purport to be
signed or certified by a judge, magistrate or other officer in or of the State
sending the document; and
(b) they purport to be sealed with an official 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 18
Representation and expenses
1. 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 travelling expenses of a person to or from the territory
of the Requested State, and any allowances or expenses payable to that person
whilst in the Requesting State;
(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 19
Criminal
records
1. The Requested State shall communicate extracts from and
information relating to judicial records requested from it by the judicial
authorities of the Requesting State and needed in a criminal matter, to the
same extent that these may be made available to its own judicial authorities
in like case.
2. In any case other than that provided for in paragraph 1 of
this Article the request shall be complied with in accordance with the
conditions provided for by the law, regulations or practice of the Requested
State.
Article 20
Notification of sentences
As far as possible, each
Contracting Party shall notify the other of penalties of imprisonment imposed
on the nationals of the other Party.
Article 21
Entry into force and
termination
1. This Treaty shall enter into force thirty days after each
Contracting Party has notified the other in writing that the 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 Party may terminate this Treaty at any time by forwarding through
the diplomatic channel written notice of termination and this Treaty 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
authorised thereto, have signed this Treaty.
DONE at Paris on the 13th day of
September, One thousand, nine hundred and ninety-nine in English and French,
both texts being equally authentic.
FOR THE GOVERNMENT OF
| FOR THE
GOVERNMENT OF
|
AUSTRALIA:
| HIS SERENE HIGHNESS
|
| THE PRINCE OF MONACO:
|
John Spender
| Christian Orsetti
|
1. Notified in the Commonwealth of Australia Gazette on 20 June 2001.