1Mutual Assistance in Criminal Matters (Switzerland) Regulations

Statutory Rules 1994 No. 71 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Mutual Assistance in Criminal Matters (Switzerland) 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 28 January 1994. BILL HAYDEN Governor-General By His Excellency’s Command, D. KERR Minister for Justice \_\_\_\_\_\_\_\_\_\_\_\_ Citation 1. These Regulations may be cited as the Mutual Assistance in Criminal Matters (Switzerland) Regulations. Commencement 2. These Regulations commence on 31 July 1994. Interpretation 3. In these Regulations, unless the contrary intention appears: “the Act” means the Mutual Assistance in Criminal Matters Act 1987. Application of the Act 4. (1) The Act applies to Switzerland subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters done at Berne in Switzerland on 25 November 1991. (2) A copy of the English text of the Treaty is set out in the Schedule. Repeal of Mutual Assistance in Criminal Matters (Swiss Confederation) Regulations 5. Statutory Rules 1988 No. 385 are repealed. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 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. SCHEDULE—continued 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. SCHEDULE—continued 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 SCHEDULE—continued 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; SCHEDULE—continued (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. SCHEDULE—continued 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 SCHEDULE—continued 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. SCHEDULE—continued 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 SCHEDULE—continued 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 SCHEDULE—continued 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 SCHEDULE—continued 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). SCHEDULE—continued 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. SCHEDULE—continued 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. SCHEDULE—continued MICHAEL DUFFY A. KOLLER FOR AUSTRALIA FOR SWITZERLAND \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ NOTE > Note: 1. Notified in the Commonwealth of Australia Gazette on 4 February 1994.