Mutual Assistance in Criminal Matters (Republic of Ecuador) Regulations
I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Mutual Assistance in Criminal Matters Act 1987.
Dated 29 October 1997.
WILLIAM DEANE
Governor-General
By His Excellency’s Command,
AMANDA VANSTONE
Minister for Justice
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Citation
These Regulations may be cited as the Mutual Assistance in Criminal Matters (Republic of Ecuador) Regulations.
Commencement
These Regulations commence on 28 December 1997.
Definition
In these Regulations:
“Mutual Assistance Treaty” means the Treaty between the Government of Australia and the Government of the Republic of Ecuador on Mutual Assistance in Criminal Matters.
Application of Act
(1) The Mutual Assistance in Criminal Matters Act 1987 applies to the Republic of Ecuador subject to the Mutual Assistance Treaty.
(2) A copy of the English text of the Mutual Assistance Treaty is set out in the Schedule.
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SCHEDULE Subregulation 4 (2)
TREATY BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF ECUADOR ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
The Government of Australia and the Government of the Republic of Ecuador
DESIRING to extend to each other the widest measure of cooperation to combat crime,
HAVE AGREED as follows:
ARTICLE 1
SCOPE OF APPLICATION
The Contracting Parties shall, in accordance with this Treaty, grant to each other mutual assistance in investigations or proceedings in respect of criminal matters.
Criminal matter also includes matters connected with offences against a law relating to taxation, customs duties, foreign exchange control and other revenue matters.
For the purposes of this Treaty the term “letters rogatory” means:
(a) judicial letters of request;
(b) in the case of Australia, requests from the Commonwealth Attorney-General, and in the case of Ecuador the Procurador General del Estado; or
(c) requests from any other authority competent under the laws of the Requesting State.
Such assistance shall consist of:
(a) where the Requesting State issues letters rogatory, the taking of evidence and obtaining of statements of persons;
(b) where the Requesting State so requests, the provision of documents and other records from the files of the Requested State;
(c) where the Requesting State so requests, the location and identification of specified persons;
(d) execution of requests for search and seizure of documents or other things;
(e) adoption of measures to locate, restrain and forfeit the proceeds of crime;
(f) where the Requesting State so requests, 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.
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;
(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 Parties whether pursuant to other treaties or arrangements or otherwise nor prevent the Contracting Parties providing assistance to each other pursuant to other treaties or arrangements.
ARTICLE 3
CENTRAL OFFICE
To ensure that requests under this Treaty are transmitted and received in accordance with their respective laws, the Contracting Parties shall each appoint a Central Office 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 Office of Ecuador shall be the Dirección General de Asuntos Legales of the Ministry of Foreign Affairs. Either State shall notify the other of any change of its Central Office.
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
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 an offence of a political character; or 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 seriously prejudice its sovereignty, security, national interest or other essential interests.
Assistance may be refused if:
(a) the request relates to the prosecution or punishment of a person for acts or omissions which, if they had taken place within the jurisdiction of the Requested State, would not 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; or
(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.
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
Requests for assistance shall include:
(a) the purpose of the request and the type of 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) a description of the acts, 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. Such a request shall be in the form of a letter rogatory;
(f) details of any procedure that the Requesting State wishes to be followed or any formalities it wishes observed. Where evidence or statements are sought the request shall be in the form of a letter rogatory and shall specify whether sworn or affirmed evidence or statements are required;
(g) the requirements, if any, of confidentiality and the reasons therefor; and
(h) specification of any time limit within which compliance with the request is desired.
Requests for assistance, to the extent necessary and insofar as possible, shall also include:
(a) information concerning 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) details of the information, statement or evidence sought;
(c) a precise 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. When a person is to be asked to produce such exhibits the request shall comply with this sub‑paragraph and the preceding sub‑paragraph and shall be made by means of a letter rogatory; and
(d) information as to the allowances and expenses to which a person appearing in the Requesting State will be entitled.
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.
If the Requested State considers that the information contained in the request is not sufficient to enable the request to be dealt with, it may request additional information.
ARTICLE 6
EXECUTION OF REQUESTS
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.
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.
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.
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 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 for the relevant investigation or proceeding.
ARTICLE 8
PROTECTING CONFIDENTIALITY AND RESTRICTING
USE OF EVIDENCE AND INFORMATION
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.
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.
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
Where the Requesting State issues letters rogatory seeking the service of documents the Requested State shall have such documents served by its competent authorities.
A request to effect service of a document requiring the appearance of a person in court shall be made to 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.
The Requested State shall serve any document in the manner required by the law of the Requesting State provided it is not inconsistent with the law of the Requested State.
The Requested State shall return the letter rogatory to the Requesting State together with a certificate that service has been effected. If service cannot be effected, the Requesting State shall be so informed and advised of the reasons.
ARTICLE 10
TAKING OF EVIDENCE
If the Requesting State, in connection with a proceeding relating to a criminal matter, requests, by means of a letter rogatory, the taking of testimony of witnesses, the Requested State shall take the testimony and transmit it to the Requesting State.
The Requesting State may also request, by means of a letter rogatory, the production by specified persons of documents, records or other material in their possession and the Requested State shall, subject to its laws and procedures, order such production.
A request to take testimony from a witness shall be made by letter rogatory and shall contain a list of questions to be put to the witness. The authorities of the Requested State may refuse to ask any questions which are contrary to its constitutional or legal provisions.
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.
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
The Requested State shall, upon request, endeavour to obtain from specified persons statements which may later be used in an investigation or proceeding described in the request in relation to a criminal matter in the Requesting State.
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
A person who is held in custody in the Requested State may, at the request of the Requesting State, and if the laws of the Requested State permit and if its competent authorities agree, be temporarily transferred to the Requesting State to assist in the conduct of investigations or to give evidence.
The Requested State shall not transfer a person in custody to the Requesting State unless the person consents to that transfer.
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.
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
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 in the conduct of investigations in relation to a criminal matter in the Requesting State.
The Requested State shall, if it has received adequate assurances that all measures necessary for the person’s protection will be taken by the Requesting State, request the person to consent to appear as a witness in proceedings or to assist in the conduct of investigations.
ARTICLE 14
IMMUNITIES
When a person is in the Requesting State pursuant to a request made under Article 12 or 13 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, furthermore, 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.
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.
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 of court, perjury and the making of false declarations.
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 anything to the contrary in the request or in any document accompanying the request.
ARTICLE 15
PROVISION OF PUBLICLY AVAILABLE
AND OFFICIAL DOCUMENTS
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.
Subject to its laws and if deemed appropriate, 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.
Nothing in this Article shall be understood as imposing upon a Contracting Party an obligation to provide any document which, according to its laws or procedures, is required to be kept confidential.
ARTICLE 16
CERTIFICATION AND AUTHENTICATION
When a request for assistance is supported by documents which have the effect of requiring the seizure or forfeiture of proceeds or instrumentalities of crime, such documents shall be authenticated. Documents provided in response to a request shall be similarly authenticated if so requested.
For the purposes of this Treaty, documents are authenticated:
When the document is to be used in Australia:
(a) if it purports to be signed or certified by a Judge, Magistrate or other judicial officer in or of Ecuador; and
(b) if it purports to be sealed with an official or public seal of Ecuador or of a Minister of State, or of a department or officer of the Government, of Ecuador.
When the document is to be used in Ecuador:
(a) if it is signed or certified by a magistrate, judge or other competent authority of Australia; and
(b) if the signature of the magistrate, the judge or the competent officer sending the document is legalized by the Department of Foreign Affairs and Trade of Australia in accordance with its practice.
ARTICLE 17
SEARCH AND SEIZURE
The Requested State shall, insofar as its law permits, carry out requests for search and seizure and delivery of specified 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.
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.
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
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.
When 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.
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. A request for the enforcement of such an order shall be made to the Requested State by means of a letter rogatory.
In the application of this Article, the rights of bona fide third parties shall be respected under the law of the Requested State.
The Requested State shall return the property referred to in paragraph 3, or the value of that property, to the Requesting State.
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 Office of each Contracting Party may make arrangements consistent with the purposes of this Treaty, and with the laws of both Contracting Parties, to facilitate the application of the Treaty.
ARTICLE 20
REPRESENTATION AND EXPENSES
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 represent the interests of the Requesting State in the execution of a request.
The Requested State shall meet the cost of fulfilling the request for assistance. The Requesting State shall bear the following costs:
(a) the expenses associated with conveying any person to or from the territory of the Requested State, and any fees, allowances or expenses payable while that person is in the Requesting State pursuant to a request under Articles 12 or 13;
(b) the expenses associated with conveying custodial or escorting officers including allowances or expenses payable while those officers are in the Requesting State; and
(c) where required by the Requested State, exceptional expenses in fulfilling the request.
ARTICLE 21
CONSULTATION
The Contracting Parties 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 particular matters.
ARTICLE 22
ENTRY INTO FORCE AND TERMINATION
This Treaty shall enter into force thirty 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.
This Treaty shall apply to requests whether or not the relevant acts or omissions occurred prior to this Treaty entering into force.
Either Contracting Party may terminate this Treaty by notice in writing at any time and it 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 authorized thereto, have signed this Treaty.
DONE at Quito,
on the 16th day of December of One Thousand nine hundred and ninety three in English and Spanish both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIADr Dominique F J J De Stoop,AMBASSADOR OFAUSTRALIA
FOR THE GOVERNMENT OF THE REPUBLIC OF ECUADORDiego Paredes,MINISTER FOREXTERNAL AFFAIRS
NOTE
Note: 1. Notified in the Commonwealth of Australia Gazette on 5 November 1997.