Reprint
as at 3 March 2000
Mutual Assistance in Criminal Matters (Prescribed
Foreign Country) (Republic of Korea) Regulations 2000
(SR 2000/15)
Michael Hardie Boys, Governor-General
Order in Council
At Wellington this 28th day of February 2000
Present:His Excellency the Governor-General in
Council
Note
Changes authorised
by section 17C of the Acts and Regulations Publication Act 1989 have
been made in this reprint.
A general outline
of these changes is set out in the notes at the end of this reprint,
together with other explanatory material about this reprint.
These regulations are administered by the Ministry of Justice.
Pursuant to section 65 of the Mutual Assistance in
Criminal Matters Act 1992, His Excellency the Governor-General,
acting on the advice and with the consent of the Executive Council,
makes the following regulations.
Contents
1 Title
2 Commencement
3 Interpretation
4 Part 3 of Act to apply to Republic of Korea
Schedule
Treaty between New Zealand and the Republic of Korea on Mutual
Legal Assistance in Criminal Matters
Regulations
1 Title
These regulations
are the Mutual Assistance in Criminal Matters (Prescribed Foreign
Country) (Republic of Korea) Regulations 2000.
2 Commencement
These regulations
come into force on 30 March 2000.
3 Interpretation
In these regulations,
unless the context otherwise requires,—
Act means the Mutual Assistance in Criminal Matters Act 1992
Treaty means the
Treaty between New Zealand and the Republic of Korea on Mutual Legal
Assistance in Criminal Matters, done at Wellington on 15 September
1999, a copy of the English text of which is set out in the Schedule.
4 Part 3 of Act to apply to Republic of Korea
Part 3 of the Act applies
to the Republic of Korea subject to any limitations, conditions, exceptions,
or qualifications that are necessary to give effect to the Treaty.
Schedule
Treaty between New Zealand and the Republic of Korea on Mutual
Legal Assistance in Criminal Matters
r 3
NEW ZEALAND AND THE REPUBLIC OF KOREA (hereinafter
referred to as “the Parties”),
DESIRING to improve the effectiveness
of both countries in the prevention, investigation and prosecution
of crime through cooperation and mutual assistance in criminal matters,
HAVE AGREED as follows:
Article 1
Scope of application
1
The Parties shall, in accordance with this
Treaty, grant each other assistance in investigations, prosecutions
or proceedings in respect of criminal matters.
2 Criminal matters also include matters connected with offences
against a law related to taxation, customs duties, foreign exchange
control or other revenue matters, but not in connection with non-criminal
proceedings relating thereto.
3 Assistance shall include:
(a) taking evidence or statements from persons;
(b) providing information, documents, records and articles
of evidence;
(c) locating or identifying persons or items;
(d) serving documents;
(e) executing requests for search and seizure;
(f) making arrangements for persons to give evidence or assist
in criminal investigations in the Requesting Country;
(g) tracing, restraining, forfeiting and confiscating the
proceeds and instrumentalities of criminal activities; and
(h) other assistance consistent with the object of this Treaty
which is not inconsistent with the law of the Requested Country.
4 Assistance granted under this Treaty does not include:
(a) the extradition, or the arrest or detention for that purpose,
of any person;
(b) the execution in the Requested Country of criminal judgments
imposed in the Requesting Country except to the extent permitted by
the law of the Requested Country and this Treaty;
(c) the transfer of persons in custody to serve sentences;
(d) the transfer of proceedings in criminal matters.
5 This Treaty shall not apply to Tokelau unless the Parties
have exchanged notes agreeing the terms on which this Treaty applies.
Article 2
Other assistance
This Treaty shall not affect any existing obligations
between the Parties, whether pursuant to other treaties, arrangements,
or otherwise, nor prevent the Parties from providing assistance to
each other pursuant to other treaties, arrangements, or otherwise.
Article 3
Central Authority
1
The Parties at all times shall each have a
person who, or an authority which, is designated as the Central Authority
to transmit and receive requests for the purposes of this Treaty.
2 The following persons or authorities are hereby designated
to be the Central Authorities at the commencement of this Treaty:
(a) for the Republic of Korea the Central Authority is the
Minister of Justice;
(b) for New Zealand the Central Authority is the Attorney-General.
3 Each Party shall notify the other of any change of its
Central Authority.
4 The Central Authorities shall normally communicate directly
with one another but may, if they choose, communicate through the
diplomatic channel.
Article 4
Contents of requests
1
Requests for assistance shall:
(a) specify the purpose of the request and the nature of the
assistance sought;
(b) identify the person, agency or authority that initiated
the request;
(c) include a description of the nature of the criminal matter,
including a summary of the relevant facts and laws and applicable
penalties;
(d) include a statement indicating the current status of the
investigation or proceeding;
(e) include a statement specifying any time frame within which
compliance with the request is desired.
2 Requests for assistance, where relevant and so far as
possible, shall also include:
(a) the identity, nationality and location of the person or
persons who are the subject of, or who may have information relevant
to, the criminal matter;
(b) where the request is for assistance under Article 10 or
11,
(i) a description of the matters about which persons are to
be examined including, where appropriate, any questions that the Requesting
Country wishes to be put to those persons;
(ii) a description of any documents, records or articles of
evidence to be produced and, where relevant, a description of the
appropriate person to be asked to produce them;
(c) where the request is for assistance under Article 12 or
13, information
about the allowances and expenses to which a person travelling to
the Requesting Country would be entitled;
(d) where the request is for assistance under Article 16 or
17, a description
of the material sought and, where relevant, its likely location;
(e) where the request is for assistance under Article 17,
(i) a statement outlining the basis of the Requesting Country's
belief that proceeds of crime may be located in its jurisdiction,
and
(ii) the court order, if any, sought to be enforced and a statement
about the status of that order;
(f) where the request is for assistance that may lead to or
result in the discovery or recovery of proceeds of crime, a statement
as to whether a special arrangement under Article 17(4) is sought;
(g) a statement outlining any particular requirement or procedure
that the Requesting Country may have, or wish to be followed in giving
effect to the request, including details of the manner or form in
which any information, evidence, document or item is to be supplied;
(h) a statement setting out the wishes, if any, of the Requesting
Country concerning the confidentiality of the request, and the reasons
for those wishes;
(i) where an official of the Requesting Country intends travelling
to the Requested Country in connection with the request, information
about the purpose of that person's visit, the proposed time frame
and travel arrangements;
(j) any other supporting information, evidence or documents
that is necessary to enable, or may assist, the Requested Country
to give effect to the request.
3 A request, any supporting documentation and any communications
made pursuant to this Treaty, shall be in the language of the Requesting
Country and be accompanied by a translation into the language of the
Requested Country.
4 If the Requested Country 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.
5 A request shall be made in writing except that the Requested
Country may accept a request in another form in urgent situations.
In any such situation, the request shall be confirmed in writing within
20 days unless the Requested Country agrees otherwise.
Article 5
Refusal of assistance
1
Assistance shall be refused if, in the opinion
of the Requested Country,
(a) the request relates to an offence that is regarded by
the Requested Country as an offence of a political character or an
offence only under military law;
(b) the request relates to the prosecution of a person for
an offence in respect of which the person has been convicted, acquitted
or pardoned in the Requested Country;
(c) there are substantial grounds for believing that the request
for assistance will result in a person being prejudiced on account
of that person's race, sex, religion, nationality or political opinions;
or
(d) the request, if granted, would seriously impair the Requested
Country's sovereignty, security or essential interests, considerations
of which may include the safety of any person and the burden on the
resources of the Requested Country.
2 Assistance may be refused if, in the opinion of the Requested
Country,
(a) the request relates to the prosecution of a person for
an offence for which the person could no longer be prosecuted by reason
of lapse of time if the offence had been committed within the jurisdiction
of the Requested Country;
(b) the request relates to the prosecution or punishment of
a person for conduct that would not, if it had taken place within
the jurisdiction of the Requested Country, have constituted an offence;
or
(c) the request relates to an offence which carries the death
penalty in the Requesting Country but in respect of which the death
penalty is either not provided for in the Requested Country or not
normally carried out unless the Requesting Party gives such assurances
as the Requested Country considers sufficient that the death penalty
will not be imposed or, if imposed, will not be carried out.
3 Assistance may be postponed by the Requested Country if
the request would interfere with an ongoing investigation or prosecution
in the Requested Country.
4 Before denying or postponing assistance pursuant to this
Article, the Requested Country, through its Central Authority, shall:
(a) promptly inform the Requesting Country of the reason for
considering denial or postponement; and
(b) consult with the Requesting Country to determine whether
assistance may be given subject to such terms and conditions as the
Requested Country deems necessary.
5 If the Requesting Country accepts assistance subject to
the terms and conditions referred to in paragraph 4(b), it shall comply
with those terms and conditions.
Article 6
Execution of requests
1
Requests for assistance shall be carried out
promptly by the competent authorities of the Requested Country in
accordance with the laws of that country and, to the extent those
laws permit, in the manner requested by the Requesting Country.
2 The Requested Country may postpone the delivery of material
requested if such material is required for proceedings in respect
of criminal or civil matters in that Country. If this is the case,
the Requested Country shall, upon request, provide certified copies
of documents.
3 The Requested Country shall promptly inform the Requesting
Country of circumstances, when they become known to the Requested
Country, which are likely to cause a significant delay in carrying
out the request.
Article 7
Return of material to Requested Country
Where required by the Requested Country, the Requesting
Country shall return material provided under this Treaty when it is
no longer needed for the criminal matter to which the request relates.
Article 8
Confidentiality and limitation of use
1
The Requested Country shall, if so requested,
use its best efforts to keep confidential a request for assistance,
the contents of the request and its supporting documentation, and
any action taken pursuant to the request. If the request cannot be
executed without breaching confidentiality, the Requested Country
shall so inform the Requesting Country before executing the request,
and the Requesting Country shall advise whether it nevertheless wishes
the request to be executed.
2 The Requesting Country shall, if so requested, use its
best efforts to keep confidential information and evidence provided
by the Requested Country except to the extent that the evidence and
information is needed for the criminal matter to which the request
relates and where otherwise authorised by the Requested Country.
3 The Requesting Country shall, if so requested, use its
best efforts to ensure that the information or evidence is protected
against loss and unauthorised access, use, modification, disclosure
or other misuse.
4 The Requesting Country 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
Country.
Article 9
Service of documents
1
The Requested Country shall, to the extent
its laws permit, carry out requests for the service of documents in
respect of a criminal matter.
2 A request for service of a summons requiring the appearance
of a person as a witness in the Requesting Country shall be made to
the Requested Country within 45 days before the scheduled appearance.
In urgent cases the Requested Country may waive this requirement.
3 The Requested Country shall forward to the Requesting
Country proof of service of the documents. If service cannot be effected,
the Requesting Country shall be so informed and advised of the reasons.
4 A person who fails to comply with any process served on
him or her shall not thereby be liable to any penalty or coercive
measure pursuant to the law of the Requesting Country or Requested
Country.
Article 10
Taking of evidence
1
The Requested Country shall, to the extent
its laws permit, carry out requests for the taking of evidence in
respect of a criminal matter, for transmission to the Requesting Country.
2 To the extent permitted by its law, the Requested Country
shall permit such persons as are specified in the request to be present
during the execution of the request and shall allow such persons to
question the person giving evidence or to submit the questions to
be posed to that person.
3 A person from whom evidence is to be taken in the Requested
Country pursuant to a request under this Article may decline to give
evidence where:
(a) the law of the Requested Country would permit or require
that person to decline to give evidence in similar circumstances in
criminal proceedings originating in the Requested Country; or
(b) the law of the Requesting Country would permit or require
that person to decline to give evidence in such criminal proceedings
in the Requesting Country.
4 If any person in the Requested Country claims that there
is a right or obligation to decline to give evidence under the law
of the Requesting Country, the Central Authority of the Requesting
Country shall, upon request, provide a certificate to the Central
Authority of the Requested Country as to the existence or otherwise
of that right. In the absence of evidence to the contrary, the certificate
shall be sufficient evidence of the matters stated in it.
5 For the purposes of this Article, the taking of evidence
includes the production of documents or other articles.
Article 11
Obtaining of statements of persons
The Requested Country shall, upon request, endeavour to
obtain statements of persons in respect of a criminal matter in the
Requesting Country.
Article 12
Transfer of persons in custody to give evidence
1
A person in custody in the Requested Country
may, at the request of the Requesting Country, be temporarily transferred
to that Country to give evidence in criminal proceedings in that Country.
For the purposes of this Article, a person in custody also includes
a person not detained in prison but who is subject to a sentence imposed
for an offence, not being a sentence of a monetary nature.
2 The Requested Country shall transfer a person in custody
to the Requesting Country only if:
(a) the person freely consents to the transfer; and
(b) the Requesting Country agrees to comply with any conditions
specified by the Requested Country relating to the custody or security
of the person to be transferred.
3 Where the Requested Country advises the Requesting Country
that the transferred person is no longer required to be held in custody,
that person shall be released.
4 A person who is transferred pursuant to a request under
this Article shall be returned to the Requested Country in accordance
with arrangements agreed by the Requested Country as soon as practicable
after the evidence has been given or at such earlier time as the person's
presence is no longer required.
5 A person transferred shall receive credit for service
of the sentence imposed in the Requested Country for the time served
in the custody of the Requesting Country.
Article 13
Availability of other persons to give evidence or assist
investigations
1
The Requesting Country may request the assistance
of the Requested Country in arranging for the transfer of a person
(not being a person to whom Article 12 of this Treaty applies) to
the Requesting Country to give or provide evidence or assistance in
respect of a criminal matter in the Requesting Country.
2 The Requested Country shall, if satisfied that satisfactory
arrangements for that person's safety will be made by the Requesting
Country, invite the person to consent to give or provide evidence
or assistance in the Requesting Country. The person shall be informed
of any expenses or allowances payable. The Requested Country shall
promptly inform the Requesting Country of the person's response and,
if the person consents, take all steps necessary to facilitate the
request.
Article 14
Safe conduct
1
Subject to paragraph 2 of this Article, where
a person is in the Requesting Country pursuant to a request made under
Articles 12 or 13 of this
Treaty, during the period that the person is required to remain in
the Requesting Country for the purposes of the request:
(a) the person shall not be detained, prosecuted or punished
in the Requesting Country for any offence, nor be subject to any civil
proceedings, being civil proceedings to which the person could not
be subjected if the person were not in the Requesting Country, in
respect of any act or omission which preceded the person's departure
from the Requested Country; and
(b) the person shall not, without the person's consent, be
required to give evidence in any criminal proceeding or to assist
any criminal investigation other than the criminal matter to which
the request relates.
2 Paragraph 1 of this Article ceases to apply if that person,
being free to leave, has not left the Requesting Country within a
period of 15 days after that person has been officially notified
that his or her presence is no longer required or, having left, has
returned.
3 A person who does not consent to give evidence pursuant
to Articles 12 or 13 of this
Treaty shall not by reason thereof be liable to any penalty or coercive
measure by the courts of the Requesting country or Requested Country.
4 A person who consents to give evidence pursuant to Articles
12 or 13 of this
Treaty shall not be subject to prosecution based on his or her testimony,
except for perjury or contempt of Court.
Article 15
Provision of information
1
The Requested Country 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
or inspection by the public.
2 The Requested Country may provide copies of any documents
or records in the same manner and under the same conditions as they
may be provided to its own law enforcement and judicial authorities.
Article 16
Search and seizure
1
The Requested Country shall, to the extent
its laws permit, carry out requests made in respect of a criminal
matter in the Requesting Country for the search, seizure and delivery
of material to that country.
2 The Requested Country shall provide such information as
may be required by the Requesting Country concerning the result of
any search, the place and circumstances of seizure, and the subsequent
custody of the material seized.
3 The Requesting Country shall observe any conditions imposed
by the Requested Country in relation to any seized material which
is delivered to the Requesting Country.
Article 17
Proceeds of crime
1
The Requested Country shall, upon request,
endeavour to ascertain whether any proceeds of a crime are located
within its jurisdiction and shall notify the Requesting Country of
the results of its inquiries.
2 Where, pursuant to paragraph 1, suspected proceeds of
crime are found, the Requested Country shall take such measures as
are permitted by its law to restrain or confiscate such proceeds.
3 In the application of this Article, the rights of bona
fide third parties shall be respected under the law of the Requested
Country.
4 The Requested Country shall retain any proceeds of crime
that are confiscated unless otherwise agreed in a particular case.
5 For the purposes of this Treaty “proceeds of crime”
means any property suspected, or found by a court to be property directly
or indirectly derived or realised 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; and includes property that
is used to commit or to facilitate the commission of an offence.
Article 18
Certification and authentication
1
Subject to paragraph 2, a request for assistance,
and the documents in support thereof, and documents or materials furnished
in response to a request, shall not require any form of certification
or authentication unless the Requested Country so requests in a particular
case.
2 Where, in a particular case, the Requested or Requesting
Country requests that documents or materials be authenticated, the
documents or materials shall be duly authenticated in the manner provided
in paragraph 3.
3 Documents or materials are authenticated for the purposes
of this Treaty if:
(a) they purport to be signed or certified by a judge, magistrate
or other official in or of the Country sending the document; and
(b) they purport to be sealed with an official seal of the
Country sending the document or of a Minister, a Department or an
official of the Government, of that Country.
Article 19
Subsidiary arrangements
The Central Authority of each Party may enter into subsidiary
arrangements consistent with the purposes of this Treaty and with
the laws of both Parties.
Article 20
Representation and expenses
1
Unless otherwise provided in this Treaty the
Requested Country shall make all necessary arrangements for the representation
of the Requesting Country in any criminal proceedings arising out
of a request for assistance and shall otherwise represent the interests
of the Requesting Country.
2 The Requested Country shall meet the cost of fulfilling
the request for assistance except that the Requesting Country shall
bear:
(a) the expenses associated with conveying any person to or
from the territory of the Requested Country, and the accommodation
expenses of the person and any fees, allowances or other expenses
payable to that person whilst in the Requesting Country pursuant to
a request under Articles 9, 12 or 13 of this
Treaty;
(b) the expenses associated with conveying custodial or escorting
officers;
(c) fees and expenses of experts and associated with the translation
of documents;
(d) where required by the Requested Country, exceptional expenses
incurred in fulfilling the request.
Article 21
Consultation and settlement of disputes
The Parties shall consult promptly, at the request of
either, concerning any issue relating to the interpretation, application
or implementation of this Treaty, either generally or in relation
to a particular case.
Article 22
Entry into force and termination
1
This Treaty enters into force 30 days
after the date on which the 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 applies to requests whether or not the relevant
acts or omissions occurred prior to this Treaty entering into force.
3 Either Party may terminate this Treaty by notice in writing
at any time and it shall cease to be in force six months after the
date of receipt of that notice. Where notice to terminate this Treaty
has been given in accordance with this Article, any request for assistance
received before termination shall be dealt with as if the Treaty were
still in force unless the Requesting Country withdraws the request.
IN WITNESS WHEREOF, the undersigned, being
duly authorised by their respective Governments, have signed this
Treaty.
DONE at Wellington on the fifteenth day of
September 1999 in English and Korean, both texts being equally authentic.
For New ZealandDon McKinnonMinister of Foreign Affairs and Trade
For the Republic of KoreaHong Soon-youngMinister of Foreign Affairs and Trade
Marie Shroff,Clerk of the Executive
Council.
Explanatory Note
This note is
not part of the regulations, but is intended to indicate their general
effect.
These
regulations come into force on 30 March 2000. They provide that Part 3 of the Mutual Assistance
in Criminal Matters Act 1992 applies to the Republic of Korea (South
Korea). The Republic of Korea may make requests to New Zealand for
assistance in criminal matters, but requests are subject to any limitations,
conditions, exceptions, or qualifications that are contained in the
Treaty between New Zealand and the Republic of Korea. The Treaty is
set out in the Schedule.
Issued under the authority of the Acts and Regulations Publication Act 1989.
Date of notification in Gazette: 2 March 2000.
Contents
1General
2Status
of reprints
3How
reprints are prepared
4Changes
made under section 17C of the Acts and Regulations Publication Act
1989
5List
of amendments incorporated in this reprint (most recent first)
Notes
1 General
This is a reprint of the Mutual Assistance in Criminal
Matters (Prescribed Foreign Country) (Republic of Korea) Regulations
2000. The reprint incorporates all the amendments to the regulations
as at 3 March 2000, as specified in the list of amendments at
the end of these notes.
Relevant provisions of any amending enactments that have
yet to come into force or that contain relevant transitional or savings
provisions are also included, after the principal enactment, in chronological
order.
2 Status of reprints
Under section 16D of the Acts and Regulations Publication
Act 1989, reprints are presumed to correctly state, as at the date
of the reprint, the law enacted by the principal enactment and by
the amendments to that enactment. This presumption applies even though
editorial changes authorised by section 17C of the Acts and Regulations
Publication Act 1989 have been made in the reprint.
This presumption may be rebutted by producing the official
volumes of statutes or statutory regulations in which the principal
enactment and its amendments are contained.
3 How reprints are prepared
A number of editorial conventions are followed in the
preparation of reprints. For example, the enacting words are not included
in Acts, and provisions that are repealed or revoked are omitted.
For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/
or Part 8 of the Tables of New Zealand Acts
and Ordinances and Statutory Regulations and Deemed Regulations in
Force.
4 Changes made under section 17C of the Acts and Regulations
Publication Act 1989
Section
17C of the Acts and Regulations Publication Act
1989 authorises the making of editorial changes in a reprint as set
out in sections
17D and 17E of that Act so that, to the
extent permitted, the format and style of the reprinted enactment
is consistent with current legislative drafting practice. Changes
that would alter the effect of the legislation are not permitted.
A new format of legislation was introduced on 1 January
2000. Changes to legislative drafting style have also been made since
1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation
reprinted after 1 January 2000 is in the new format for legislation
and reflects current drafting practice at the time of the reprint.
In outline, the editorial changes made in reprints under
the authority of section 17C of the Acts and Regulations Publication
Act 1989 are set out below, and they have been applied, where relevant,
in the preparation of this reprint:
•omission of unnecessary referential words (such as “of this section” and “of this Act”)
•typeface and type size (Times Roman, generally in 11.5 point)
•layout of provisions, including:
•indentation
•position of section headings (eg, the number and heading now appear
above the section)
•format of definitions (eg, the defined term now appears in bold type,
without quotation marks)
•format of dates (eg, a date formerly expressed as “the 1st day of January 1999” is now expressed as “1 January 1999”)
•position of the date of assent (it now appears on the front page
of each Act)
•punctuation (eg, colons are not used after definitions)
•Parts numbered with roman numerals are replaced with arabic numerals,
and all cross-references are changed accordingly
•case and appearance of letters and words, including:
•format of headings (eg, headings where each word formerly appeared
with an initial capital letter followed by small capital letters are
amended so that the heading appears in bold, with only the first word
(and any proper nouns) appearing with an initial capital letter)
•small capital letters in section and subsection references are now
capital letters
•schedules are renumbered (eg, Schedule 1 replaces First Schedule),
and all cross-references are changed accordingly
•running heads (the information that appears at the top of each page)
•format of two-column schedules of consequential amendments, and schedules
of repeals (eg, they are rearranged into alphabetical order, rather
than chronological).
5 List of amendments incorporated in this reprint (most
recent first)
