belgiquelex.be - Carrefour Bank of Legislation 13 MARCH 2016. - An Act to approve the Convention between the Kingdom of Belgium and the People's Republic of China on mutual legal assistance in criminal matters, made in Brussels on 31 March 2014 (1) (2)
PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
Article 1
er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. The Convention between the Kingdom of Belgium and the People's Republic of China on mutual legal assistance in criminal matters, made in Brussels on 31 March 2014, will come out its full effect.
Promulgate this Act, order that it be put on the State Seal and published by the Belgian Monitor.
Given in Brussels on 13 March 2016.
PHILIPPE
By the King:
Minister of Foreign Affairs,
D. REYNDERS
Minister of Justice,
K. GEENS
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives (www.lachambre.be):
Documents: 54-1595.
Full report : 01/02/2016.
(2) Effective date: 22/04/2016 (art. 25).
CONVENTION ENTER LE ROYAUME DE BELGIQUE ET LA REPUBLIQUE POPULAIRE DE CHINE SUR L'ENTRAIDE JUDICIAIRE EN MATIERE PENALE
The Kingdom of Belgium
And
The People's Republic of China
(hereinafter referred to as "Parties"),
In order to improve effective judicial cooperation between the two countries in the field of mutual legal assistance in criminal matters on the basis of mutual respect for sovereignty, equality and mutual interest,
Decided to conclude this Convention and agreed on the following provisions:
Article 1
erScope
1.The Parties shall mutually agree, in accordance with the provisions of this Convention, that mutual legal assistance is as broad as possible with respect to criminal investigations, prosecutions and criminal proceedings.
2. This mutual legal assistance includes:
(a) delivery of documents in criminal proceedings;
(b) collection of testimony or statements of persons;
(c) communication of documents, records and evidence;
(d) obtaining and communicating expert reports;
(e) the location and identification of persons;
(f) conducting research or investigations;
(g) provision of persons for testimony or assistance in investigations;
(h) the transfer of persons detained for the purpose of testimony or assistance in investigations;
(i) conducting investigations, searches, gels and seizures;
(j) assistance on proceeds of criminal activity and crime instruments;
(k) notification of the results of criminal proceedings and disclosure of extracts from the criminal record and judicial documents;
(l) the exchange of information in the field of law; and
(m) any other form of mutual legal assistance that is not contrary to the law of the requested Party.
3. This Convention applies only to mutual legal assistance between the two Parties. The provisions of this Convention do not give the right of any private person to obtain, remove or exclude evidence or to prevent the execution of an application.
Article 2
Central authorities
1. For the purposes of this Convention, the Central Authorities designated by the Parties shall communicate directly with each other on matters relating to mutual legal assistance requests, if necessary through diplomatic channels.
2. The Central Authorities referred to in paragraph 1
er This article is the Ministry of Justice for the People's Republic of China and the Federal Public Service Justice for the Kingdom of Belgium.
3. If one of the Parties changes its designated Central Authority, it shall inform the other Party through diplomatic channels.
Article 3
Restrictions on mutual assistance
1. The requested Party shall refuse assistance in one of the following circumstances:
(a) the requested Party believes that the enforcement of the application is likely to affect sovereignty, security, public order or other essential interests or is incompatible with the fundamental principles of its right;
(b) the Requested Party considers that the application is a political offence, except for the offence of terrorism or an offence that is not considered a political offence under the international conventions to which both States are Parties;
(c) the Requested Party has serious reasons to believe that the request has been made to investigate, prosecute, punish or engage in other proceedings against a person on grounds of race, sex, religion, nationality or political opinion or that it may be prejudiced to the situation of that person in the course of judicial proceedings for one of these reasons;
(d) the application relates to an offence that constitutes only a military offence.
2. The requested Party may refuse assistance in any of the following circumstances:
(a) the request relates to conduct that would not constitute an offence under the law of the requested Party;
(b) the requested Party shall conduct or close criminal proceedings or have already made a final decision against the same suspect or accused for the same offence as that to which the application relates.
3. The requested Party cannot invoke bank secrecy to refuse mutual legal assistance.
4. The requested Party may differ from one another if the enforcement of the application is likely to interfere with an investigation, prosecution or judicial proceeding in the requested Party. In such cases, the requesting Party shall be informed of the request and of the period in which it may be satisfied with the request.
5. Before refusing or deferring a request, the requested Party shall consider whether mutual legal assistance may be granted the conditions it considers necessary. If the requesting Party agrees that mutual legal assistance is subject to these conditions, it complies with these conditions.
6. If the requested Party refuses or differentiates assistance, it shall inform the requesting Party of the reasons for such refusal or postponement.
Article 4
Form and content of requests
1. The request for assistance shall be in writing and shall have the signature or seal of the Central Authority of the requesting Party. In the event of an emergency, the requesting Party may apply in other forms such as telegram, fax or e-mail, which are acceptable to the requested Party, the requesting Party shall promptly confirm the request in writing.
2. A request for help contains:
(a) the name of the competent authority that directs the investigation, prosecution or judicial proceedings in relation to the application;
(b) a description of the nature of the case to which the application relates, a summary of the facts and the text of the applicable legal provisions;
(c) a description of the mutual assistance sought, its object and relevance to the case; and
(d) the desired time limit for the application.
3. If applicable, and to the extent possible, the request for assistance also contains:
(a) the identity, address or location and nationality of any person concerned and the connection of that person with the procedure;
(b) a description of the object to be inspected or examined;
(c) a description of the property to be searched, searched, frozen and seized;
(d) a description of any particular procedure that it is desirable to follow in the execution of the application and the reasons justifying it;
(e) a description of the confidentiality requirement and its reasons;
(f) information on compensation and expenses for a person summoned to appear in the requesting Party in order to testify or assist in investigations;
(g) a questionnaire to which the witness must respond;
(h) any other information that may facilitate the execution of the application.
4. If the requested Party considers that the content of the request is not sufficient to allow it to process the request or that the requested assistance lacks substantial links with the case, it may request additional information.
Article 5
Language
Requests and supporting documents submitted pursuant to this Convention shall be accompanied by a translation into the official language or in any of the official languages of the requested Party, unless the two Parties otherwise have the request.
Article 6
Application implementation
1. The requested Party shall comply with the request for assistance in accordance with its legislation.
2. Insofar as it is not contrary to its legislation, the requested Party may carry out the request for assistance in the manner requested by the requesting Party.
3. The requested Party shall promptly inform the requesting Party of the results of the application. If the required assistance cannot be granted, the requested Party shall forthwith communicate the reasons to the requesting Party.
Article 7
Privacy and limitation of use
1. The requested Party shall preserve the confidentiality of the application, including its content, any supporting documentation and any action undertaken in accordance with the application, if the requesting Party so requests. If the request cannot be executed without breaching this confidentiality, the requested Party shall inform the requesting Party, which shall decide whether the request should nevertheless be carried out.
2. The requesting Party shall preserve the confidentiality of the information and evidence provided by the requested Party, if requested by the requested Party, or shall use such information or evidence only in accordance with the terms and conditions established by the requested Party.
3. The requesting Party shall not use any information or evidence obtained under this Convention for purposes other than those referred to in the application without the prior consent of the requested Party.
Article 8
Submission of documents
1. The requested Party shall, in accordance with its legislation and upon request, issue the documents transmitted to it by the requesting Party.
2. After the surrender, the requested Party shall provide proof thereof to the requesting Party by mentioning the date, place and modalities of the surrender, all signed and sealed with the seal of the authority that delivered the documents.
Article 9
Collection of evidence
1. The requested Party shall collect, in accordance with its legislation and upon request, the evidence and communicate it to the requesting Party.
2. Where the request relates to the communication of documents or records, the requested Party may provide certified copies or photocopies.
However, if the requesting Party explicitly requests the communication of originals, the requested Party shall, to the extent possible, follow up on that request.
3. As long as the legislation of the requested Party does not oppose it, the documents and other documents to be communicated to the requesting Party in accordance with this article shall be certified as required by the requesting Party in order to make them admissible under the law of the requesting Party.
4. As long as its legislation does not oppose it, the Requested Party authorizes the presence of persons designated in the application during the execution of the application and authorizes such persons to interrogate, through the personnel of the competent authorities of the Requested Party, the person to whom the evidence must be obtained. To this end, the requested Party shall promptly inform the requesting Party of the date and place of the execution of the application.
5. If the requesting party wishes the witnesses or experts to sworn, it expressly makes the request and the requested Party shall grant it if its legislation does not oppose it.
Article 10
Collection of testimonies and depositions by videoconference
Where possible and in accordance with the basic principles of the legislation of the requested Party, if a person is in the territory of the requested Party and is to be heard as a witness or as an expert by the competent authorities of the requesting Party, the requested Party may, at the request of the requesting Party, authorize the collection of testimony or the testimony by videoconference, on the terms and conditions agreed by a common agreement between the requesting Party, if it is not possible or desirable
Article 11
Provision of persons for testimony or assistance in investigations
1. At the request of the requesting Party, the requested Party shall invite the person concerned to appear before the competent authorities in the territory of the requesting Party for the purposes of testimony or assistance in investigations. The requesting Party shall indicate to what extent the allowances and expenses of the person will be borne. The requested Party shall promptly disclose the response of the person to the requesting Party.
2. The requesting Party shall forward the request for the appearance of a person for the purposes of testimony or assistance in investigations in its territory at least sixty days before the scheduled date of appearance. The requested Party may consent to a shorter period in the event of an emergency.
Article 12
Temporary transfer of persons held for testimony or assistance in investigations
1. The requested Party may, at the request of the requesting Party, temporarily transfer a person detained on its territory for the purposes of testimony or assistance in investigations, provided that the person to be transferred consents to it and that the Parties have previously reached a written agreement on the terms of the transfer.
The requesting Party shall return the person transferred to the requested Party within the time specified in the written agreement.
2. If the transferred person is to be held in custody in accordance with the law of the requested Party, the requesting Party shall keep the person in detention.
3. For the purposes of this article, the transferred person shall see the length of the penalty imposed on him in the requested Party deducted from the duration of detention in the requesting Party.
Article 13
Protection of witnesses and experts
1. No witness or expert, including those referred to in article 12, present in the territory of the requesting Party, may be neither investigated, prosecuted, detained, punished or subjected to any other restriction of its individual liberty by the requesting Party, for acts or omissions prior to its entry into its territory. Nor can this person be compelled to testify or collaborate in investigations, prosecutions or proceedings other than those to which the request relates, without the prior consent of the requested Party and that person.
2. Paragraph 1
er this section shall cease to apply if the person referred to in this section has remained in the territory of the requesting Party fifteen days after having been formally notified that the person's presence was no longer required, or returned voluntarily after leaving it. However, this period does not include the period during which the person failed to leave the territory of the requesting Party for reasons beyond his or her control.
3. A person who refuses to testify or collaborate in investigations in accordance with sections 11 or 12 may not be subject to a penalty or restriction of his or her individual freedom because of such refusal.
Article 14
Investigations, searches, gels and seizures
1. The requested Party shall, to the extent permitted by its legislation, apply for investigation, search, freezing or seizure of evidence, objects and assets.
2. The requested Party shall provide the requesting Party with the results related to the execution of the application, including information on the results of the investigation or search, the location and circumstances of the freezing or seizure and subsequent custody of such items, objects or assets.
3. The requested Party may transmit the elements, objects or assets seized to the requesting Party if the requesting Party agrees on the terms and conditions of the transmission it proposes.
Article 15
Transmission of objects and documents
1. The exhibits, together with the originals of the records or documents, which have been transmitted pursuant to a mutual assistance request, are retained by the requesting Party.
2. At the request of the requested Party, the requesting Party shall return, as soon as possible, the information provided under this Convention.
3. The Requested Party may suspend the transmission of evidence, records or documents requested for communication, if necessary for ongoing criminal proceedings.
Article 16
Proceeds of criminal activity and crime instruments
1. The requested Party shall endeavour, upon request, to determine whether the proceeds of criminal activity or the instruments of the crime are in its territory and shall inform the requesting Party of the results of its research. In its application, the requesting Party shall communicate to the requested Party the reasons it has to assume that the aforementioned products or instruments may be in its territory.
2. As soon as these proceeds of criminal activity or instruments of crime are found in accordance with paragraph 1
er the requested Party shall take the necessary measures to freeze, seize and confiscate them in accordance with its legislation.
3. At the request of the requesting Party, the requested Party shall retain such products or instruments and may, within the limits authorized by its legislation and in accordance with the terms and conditions agreed between the requesting Party, transfer to the requesting Party any or part of such products or instruments, or any products derived from the sale of such assets.
4. Pursuant to this article, the legitimate rights and interests of the requested Party and any third party with respect to such products or instruments shall be respected.
Article 17
Notification of the outcome of criminal proceedings
The requesting Party shall, upon request, inform the requested Party of the outcome of the criminal proceedings to which the request for mutual legal assistance relates.
Article 18
Disclosure of extracts from the criminal record
If a person is investigated or prosecuted in the territory of the requesting Party, the requested Party shall, upon request, provide an extract from the judicial record of that person.
Article 19
Exchange of information in the field of law
The Parties shall communicate, upon request, the legislation and information relating to judicial practices in their respective countries with respect to the implementation of this Convention.
Rule 20
Exchange of information from judicial documents
Each Party, upon request, shall inform the other Party of all criminal convictions involving nationals of that Party and which shall be registered in the criminal record.
Article 21
Legalization
The evidence and documents transmitted under this Convention shall be exempted from any legalization process, unless expressly requested by one of the Parties.
Article 22
Fees
1. The requested Party shall bear the costs of performing the application, but the requesting Party shall:
(a) the travel of persons to the territory of the requested party and to leave the requested party pursuant to Article 9, 4., of this Convention;
(b) compensation or travel of persons to and from the territory of the requesting party in accordance with articles 11 or 12 of this Convention in accordance with the standards or regulations of the place where such allowances or expenses have been incurred;
(c) costs of expert reports; and
(d) translation and interpretation costs.
2. Upon request, the requesting Party shall pay in advance the costs it has incurred.
3. If it appears that the execution of an application requires exceptional costs, the Parties shall consult to determine the terms and conditions under which the application may be executed.
Article 23
Other bases of cooperation
This Convention does not prevent any Party from granting mutual legal assistance to another Party under other applicable international agreements or legislation. Parties may also grant mutual legal assistance in accordance with any other arrangement, agreement or other practices.
Article 24
Consultations
1. The Parties shall consult each other without delay, at the request of either of them, with respect to the interpretation and application of this Convention.
2. Any dispute in this regard shall be resolved by diplomatic means if the Central Authorities fail to reach agreement.
Rule 25
Entry into force, amendment and denunciation
1. Each Party shall notify the other Party by diplomatic note when it has completed all necessary steps in accordance with its legislation for the entry into force of this Convention. This Convention comes into force thirty days after the date of the last diplomatic note.
2. This Convention may be amended at any time by written agreement of the Parties. These amendments shall take effect in accordance with the procedure described in paragraph 1
er and are an integral part of this Convention.
3. Each Party may denounce this Convention at any time by written notification addressed to the other Party through diplomatic channels. The denunciation takes effect one hundred and eighty days after the date of notification.
4. This Convention shall apply to any application made after its entry into force, even if the related acts or omissions have occurred prior to the entry into force of this Convention.
IN WITNESS WHEREOF, the undersigned, duly authorized for this purpose by their respective Governments, have signed this Convention.
DONE in Brussels, on 31 March 2014, in duplicate, in Chinese, Dutch, French and English, each text being equally authentic. In the event of a discrepancy in the interpretation of this Convention, the English language text will be the reference text.
