Posted the: 2016-04-26 Numac: 2016015026 FEDERAL Foreign Affairs, external trade and development COOPERATION PUBLIC SERVICE 13 March 2016. -Law approving the Convention between the Kingdom of Belgium and the People's Republic of China on mutual legal assistance in criminal matters, done at Brussels on March 31, 2014 (1) (2) PHILIPPE, King of the Belgians, has all, present and future, hi.
The House of representatives has adopted and we sanction the following: Article 1.
This Act regulates a matter referred to in article 74 of the Constitution.
S. 2. the Convention between the Kingdom of Belgium and the People's Republic of China on mutual legal assistance in criminal matters, done at Brussels on March 31, 2014, will release its full and complete effect.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given to Brussels, 13 March 2016.
PHILIPPE by the King: the Minister of Foreign Affairs, D. REYNDERS. the Minister of Justice, K. GARG sealed with the seal of the State: the Minister of Justice, K. GARG _ Note (1) House of representatives (www.lachambre.be): Documents: 54-1595.
Full report: 2016-02-01.
(2) date of entry into force: 04/22/2016 (art. 25).
CONVENTION between the Kingdom of Belgium and the Republic of China on the mutual judicial EN material criminal the Kingdom of Belgium and the PRC (hereinafter referred to as "the Parties"), to improve cooperation effective judiciary between the two countries in the field of mutual assistance in criminal matters based on mutual respect of sovereignty, equality and mutual benefit Have decided to conclude this Convention and have agreed upon the following provisions: Article 1 scope 1. Parties shall agree, in accordance with the provisions of this Convention, the widest possible mutual with regard to criminal investigations, prosecutions and criminal judicial proceedings.
2. this mutual assistance includes: (a) delivery of documents in criminal proceedings;
(b) the collection of evidence or statements from persons;
(c) communication of documents, records and evidence;
(d) obtaining and disclosure of expert reports;
(e) the location and identification of persons;
(f) the achievement of research or surveys;
(g) provision of persons for the purpose of evidence or assistance in investigations;
(h) the transfer of persons detained for the purposes of evidence or assistance in investigations;
(i) the completion of investigations, searches, gels and seizures;
(j) assistance concerning products of crime and instrumentalities of crime;
(k) the notification of the results of criminal proceedings and communication of extracts from criminal records and court documents;
(l) the exchange of information in the field of law; and (m) any other form of mutual judicial assistance that is not contrary to the legislation of the requested Party.
3. this Convention applies only to the judicial cooperation between the two Parties. The provisions of this Convention do not qualify for any private person to obtain, remove or exclude evidence or prevent the execution of a request.
Article 2 central authorities 1. For the purposes of this Convention, the central authorities designated by the Parties communicate directly for questions relating to requests for assistance, if necessary through the diplomatic channel.
2 the central authorities referred to in paragraph 1 of this article are the Ministry of Justice for the people's Republic of China and the Service public federal Justice for the Kingdom of Belgium.
3. If one of the Parties changes its central authority designated, it shall inform the other party through diplomatic channels.
Article 3 Restrictions for mutual assistance 1.
The requested party refuses assistance in one of the following circumstances: (a) the requested Party think that the execution of the request is likely to prejudice the sovereignty, security, public order or other essential interests or is incompatible with the fundamental principles of its law.
(b) the requested Party considers that the request concerns an offence political nature, with the exception of the offence of terrorism or of an offence that is not considered as a political offence under the terms of the international conventions to which both States are Parties;
(c) the requested Party has substantial grounds for believing that the request has been formulated to investigate a person, to continue, to punish or other proceedings against him for reasons of race, sex, religion, nationality or political opinion or that it may be prejudiced to the situation of that person in proceedings for one of these reasons;
(d) the request concerns an offence which only constitutes a military offence.
2. the requested Party may refuse assistance in any of the following circumstances: (a) the application concerns conduct which does not constitute an offence under the law of the requested Party;
(b) the requested Party conducts closed criminal proceedings or has already made a final determination against the same suspect or accused for the same offence as that to which the request.
3. the requested Party may not invoke banking secrecy to refuse mutual legal assistance.
4. the requested Party may postpone assistance if execution of the request is likely to interfere with an investigation, prosecution or judicial proceedings in the requested Party. In such cases, the requesting party is notified, as well as of the period in which it can be satisfied at the request.
5 before refusing a request or defer execution, the requested Party shall consider whether mutual legal assistance may be granted subject to conditions it considers necessary. If the requesting party accepts that mutual legal assistance is subject to these conditions, it meets them.
6. If the requested party refuses or different assistance, it shall inform the applicant of the reasons for this refusal or postponement.
Article 4 form and contents of requests 1. The request for assistance is made in writing and with a signature or the seal of the central authority of the requesting party. In an emergency, the requesting party may request other forms such as the telegram, fax or electronic mail, which are acceptable to the requested Party, the requesting party quickly subsequently confirming the request in writing.
2. a request for mutual assistance contain: (a) the name of the competent authority conducting the investigation, prosecution or judicial proceeding in relation to the application;
(b) a description of the nature of the case to which refers the application, a brief statement of the facts and the text of the applicable legal provisions;
(c) a description of the requested assistance, its object and its relevance to the case; and (d) the desired demand execution time.
3. if applicable, and to the extent possible, the request for assistance also includes: (a) the identity, address or location and nationality of any person concerned as well as the relationship of this person with the procedure;
(b) a description of the object to inspect or examine;
(c) a description of the property to be the subject of a search, a search, a gel and a seizure;
(d) a description of any particular procedure that it is desirable to follow in the execution of the request and the reasons for it;
(e) a description of the requirement of confidentiality with his reasons;
(f) information concerning allowances and expenses provided to a person summoned to appear in the requesting party to testify or to assist in investigations;
(g) a questionnaire which must answer the witness;
(h) any other information which would facilitate the execution of the request.
4. If the requested Party considers that the content of the application is not sufficient to enable it to deal with it, or unsolicited assistance lack of substantial links with the case, it may request additional information.
Article 5 language requests and supporting documents submitted in accordance with this Convention shall be accompanied by a translation in the official language or one of the official languages of the requested Party, unless the Parties provide otherwise.
Article 6 Execution of requests 1.
The requested Party runs the request for mutual assistance in accordance with its legislation.
2. insofar as it is not contrary to its law, the requested Party may execute the request for mutual assistance in the manner requested by the requesting party.
3. the requested Party shall notify the requesting Party of the results of the execution of the request immediately. If required assistance may be granted, the requested Party shall inform without delay the reasons to the requesting party.
Article 7 confidentiality and limitation of use 1. The requested Party shall preserve the confidentiality of the application, including its content, all supporting documents and any action taken pursuant to the request, if the requesting party so requests. If the request cannot be executed without breaching the confidentiality, the requested Party shall inform the requesting party, which decides if there is nevertheless instead of running this application.
2. the requesting Party shall preserve the confidentiality of the information
and evidence provided by the requested Party, if it in fact demand, or uses such information or evidence that according to the terms and conditions laid down by the requested Party.
3. the applicant does not use information or elements of evidence obtained pursuant to this Convention for purposes other than those specified in the request without the prior consent of the requested Party.
Article 8 delivery of documents 1. The requested Party shall, in accordance with its legislation and on request, at delivery of the documents which are communicated to it by the applicant.
2. After completing the delivery, part required to provide evidence to the applicant stating the date, the place and the details of the handover, signed and covered with the seal of the authority which provided the documents.
Article 9 collection of evidence 1. The requested party collects evidence in accordance with its legislation and on request, and communicate to the requesting party.
2. when the request is the communication of documents or records, the requested Party may provide copies or photocopies certified.
However, if the applicant explicitly requests the provision of originals, the requested Party gives suite insofar as possible to this request.
3. for provided that the legislation of the requested Party does not object, the documents and other parts to communicate to the requesting party in accordance with this article are certified in the manner required by the requesting party in order to make them admissible under the legislation it.
4. as far as its legislation does not preclude, the requested Party allow the presence of the persons designated in the application when you run it and allows these people to question, through the staff of the competent authorities of the requested Party, the person from whom the evidence must be obtained. To this end, the requested Party shall inform without delay the applicant of date and place of execution of the request.
5. If the applicant wishes to witnesses or experts to file under oath, she in fact expressly requests and the requested Party is right if its law does not preclude.
Article 10 collection of evidence and testimony by videoconference whenever possible and consistent with fundamental principles of the legislation of the requested Party, if a person is located in the territory of the requested Party and shall 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 allow the collection of testimony, or testimony by videoconference, to the terms and conditions agreed by common accord between the Parties, if it is not possible or desirable that it appear in person in the territory of the requesting party.
Article 11 made available to persons for the purpose of evidence or assistance in investigations 1. At the request of the requesting party, the requested party invites the person concerned to appear before the competent authorities in the territory of the requesting party for the purposes of evidence or assistance in investigations.
The applicant indicates to what extent the benefits and costs of the person will be supported. The required part quickly know the answer of the person to the requesting party.
2. the applicant passes the request to the appearance of a person for the purposes of evidence or assistance in investigations on its territory at least sixty days before the date of intended appearance.
The requested Party may consent to a shorter period in case of emergency.
Article 12 temporary transfer of detained persons for purposes of evidence or assistance in investigations 1. The requested Party may, at the request of the applicant, part temporarily transfer a person detained in its territory for the purposes of evidence or assistance in investigations, provided that the person to be transferred y consent and that the Parties have previously reached a written on the conditions of the transfer agreement.
The requesting party renders the person transferred to the requested Party within the time specified in the written agreement.
2. If the transferee must be maintained in accordance with the legislation of the requested Party, the requesting party maintains it in detention.
3. for the purposes of this article, the transferred person sees the length of sentence that is imposed in the inferred required portion of the period of detention undergone in the requesting party.
Article 13 Protection of witnesses and experts 1. No witness or expert, including those referred to in article 12, present on the territory of the requesting party, cannot be or being investigated, or continued, detained, punished or subjected to any other restriction of his personal liberty by the requesting party for acts or omissions prior to its entry on its territory. This person may not be compelled to testify or to collaborate in investigations, prosecutions or proceedings other than those to which the request relates, without the prior consent of the requested Party and this person.
2. paragraph 1 of the present article shall cease to apply if the person referred remained on the territory of the requesting party fifteen days after being officially notified that his presence was most required, or has returned voluntarily after having left. This period includes however not the period during which the person is not managed to leave the territory of the requesting party for reasons independent of his will.
3. a person who refuses to testify or to collaborate in investigations in accordance with articles 11 or 12 may be imprisonment or restriction of his personal liberty by reason of such refusal.
Article 14 surveys, search, gels and seizure 1.
The requested party running, insofar as its law permits, a request for investigation, search, freezing or seizure of evidence, of objects and assets.
2. the requested Party provides to the applicant the results related to the execution of the request, including information on the results of the investigation or the search, the place and the circumstances of freezing or seizure and subsequent custody of such elements, objects or assets.
3. the requested Party may transmit elements, objects or assets seized to the requesting party if it gave its assent to the terms and conditions of transmission it offers.
Article 15 Transmission of objects and documents 1. The exhibits, as well as the original records or documents, which have been transmitted in execution of a request for mutual assistance, are retained by the applicant.
2. at the request of the requested Party, the requesting party returns, as soon as possible, provided pursuant to this Convention.
3. the requested Party may suspend the transmission of parts to conviction, records or documents whose disclosure is sought, if they are required for any criminal proceedings in progress.
Article 16 proceeds of crime and instrumentalities of crime 1. The requested Party strives, on request, to establish if proceeds from criminal activities or instruments of the crime are in its territory and shall inform the requesting Party of the results of its research. In its application, the applicant communicates to the requested Party the reasons it has to assume that products or above-mentioned instruments can be found on its territory.
2. as soon as such proceeds of crime or instrumentalities of crime are found in accordance with paragraph 1 of this article, the requested Party shall take measures to freeze, seize them and confiscated in accordance with its legislation.
3. at the request of the requesting party, the requested Party retains these products or instruments and may, to the extent permitted by its legislation and in accordance with the terms and conditions agreed between the Parties, transfer to the requesting party all or part of these products or instruments, or the products of the sale of such assets.
4. pursuant to this section, the rights and legitimate interests of the requested Party or any third party with regard to such products or instruments are respected.
Article 17 Notification of the outcome of criminal proceedings the party applicant shall, on request, the requested Party of the outcome of the criminal proceedings to which the request for assistance relates, inform.
Article 18 Communication of extracts from criminal records if a person is the subject of an investigation or prosecution in the territory of the requesting party, the requested Party shall, on request, an extract from the criminal record of the person.
Article 19 exchange of information in the field of law the Parties communicate each other, on request, legislation and information on judicial practice in force in their respective countries concerning the implementation of this Convention.
Article 20 Exchange of information from judicial records each party, on request, inform the other party of all criminal convictions which concern nationals of this part and subject of an inscription to the criminal.
Section 21 legalization elements of proof and documents transmitted in application of this Convention shall be exempt from all legalisation formalities, unless specifically requested by one of the Parties.
Article 22 expenses 1.
The requested Party shall bear the costs of execution of the request, but the applicant supports: (a) travel expenses of persons to the territory of the requested Party, to stay of the latter, as well as for leave pursuant to article 9, 4., of the present Convention;
(b) allowances or travel expenses of persons to the territory of the requesting party, to stay of the latter, as well as for leave pursuant to articles 11 or 12 of this Convention, in accordance with the standards or regulations of the place where such allowances or expenses were incurred;
(c) the costs of expert reports; and (d) the costs of translation and interpretation.
2. upon request, the applicant shall pay in advance that it supports.
3. If it appears that the execution of a request requires expenses of an exceptional nature, the Parties shall consult to fix the terms and conditions pursuant to which the application can run.
Article 23 other bases for cooperation this Convention prevents any of the Parties to provide mutual legal assistance to another party under other applicable international agreements or its legislation. The Parties may also grant judicial assistance pursuant to any other agreement, any other agreement or other practices.
Article 24 Consultations 1. The Parties shall consult each other without delay, at the request of either of them, on the interpretation and application of this Convention.
2. any dispute in this regard is set through diplomatic channels if the central authorities are unable to reach an agreement.
Article 25 entry into force, amendment and termination 1.
Each Party shall inform the other party by diplomatic note when she has done all the necessary steps in accordance with its law for the entry into force of the present Convention. This Convention shall enter into force thirty days after the date of dispatch of the last diplomatic note.
2. the present Convention may at any time be amended subject to the written agreement of the Parties. These amendments take effect in accordance with the procedure described in paragraph 1 of this article and are an integral part of this Convention.
3. each party may at any time denounce this Convention by written notification, addressed to the other party through diplomatic channels. The denunciation shall take effect one hundred eighty days after the date of the notification.
4. the present Convention shall apply to any request presented after its entry into force even if the acts or omissions y related occurred before the entry into force of this Convention.
IN witness whereof, the undersigned, duly authorized for this purpose by their respective Governments, have signed the present Convention.
DONE at Brussels, March 31, 2014, in duplicate, in Chinese languages, Dutch, French and English, each text being equally authentic. In case of divergence of interpretation of this Convention, the English text will be the reference text.