belgiquelex.be - Carrefour Bank of Legislation 10 JULY 2012. - An Act to approve the Convention on Mutual Assistance in Criminal Matters between the Kingdom of Belgium and the Republic of Korea, made in Brussels on 17 January 2007 (1) (2)
ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1
er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Convention on Mutual Legal Assistance in Criminal Matters between the Kingdom of Belgium and the Republic of Korea, made in Brussels on 17 January 2007, will come out with its full effect.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 10 July 2012.
ALBERT
By the King:
Deputy Prime Minister and Minister for Foreign Affairs,
D. REYNDERS
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Notes
(1) Session 2011-2012.
Senate.
Documents
Bill tabled on 22 February 2012, No. 5-1495/1.
Report on behalf of Commission No. 5-1495/2.
Annales parlementaire
Discussion, meeting of May 31, 2012.
Vote, meeting of 31 May 2012.
House of Representatives
Documents
Project transmitted by the Senate, No. 53-2225/1.
Report on behalf of Commission No. 53-2225/2.
Text adopted in plenary and submitted to Royal Assent No. 53-2225/3.
Annales parlementaire
Discussion, meeting of June 14, 2012.
Vote, meeting of 14 June 2012.
(2) This Convention comes into force on 29 September 2012.
Convention on Mutual Assistance in Criminal Matters between the Kingdom of Belgium and the Republic of Korea
BELGIUM ROYAUME
AND
LA REPUBLIQUE DE COREE
(hereinafter referred to as "Parties")
Desirous of establishing more effective cooperation in the field of mutual assistance in the field of mutual legal assistance in criminal justice,
The following provisions were agreed:
Article 1
erPAPLICATION CHAMP
1. The Parties undertake to mutually agree, in accordance with the provisions of this Convention, the widest possible assistance in any criminal proceedings involving offences whose repression is, at the time of request, the jurisdiction of the judicial authorities of the requesting Party. For the purposes of this Convention, all aspects of criminal proceedings, including investigations, prosecutions and judicial investigation, should be heard by "procedure".
2. Criminal matters also include offences relating to tax, customs, currency control or other revenue-related matters, where the main purpose of the procedure is not to establish or collect taxes.
3. Assistance includes:
(a) collection of testimony or statements of persons;
(b) communication of information, documents, records and evidence;
(c) the location or identification of persons or objects;
(d) delivery of documents;
(e) the execution of search and seizure requests;
(f) assistance in the availability of detained or other persons for testimony or assistance in investigations;
(g) measures taken to help recover proceeds from criminal activities; and
(h) any other form of assistance compatible with the purpose of this Convention and not prohibited by the legislation of the requested Party.
4. This Convention does not apply:
(a) the extradition of persons;
(b) the execution, in the requested Party, of criminal judgements in the requesting Party, except within the limits authorized by the legislation of the requested Party and this Convention;
(c) transfer of inmates for the purpose of serving a sentence; and
(d) transfer of criminal proceedings.
Article 2
OTHER AGREEMENTS
This Convention does not affect existing commitments between Parties, in accordance with other conventions, agreements or other agreements, and does not prevent Parties from agreeing or continuing to agree on mutual assistance in accordance with other conventions, agreements or other agreements.
Article 3
CENTRAL AUTHORITY
1. Each Party shall designate a central authority that shall file or receive the applications referred to in this Convention. The central authority for the Kingdom of Belgium will be the Federal Public Service Justice, the central authority for the Republic of Korea will be the Minister of Justice or an official designated by the said Minister.
2. The central authorities shall communicate with each other through diplomatic channels or, in the event of an emergency, directly for the purposes of this Convention.
3. The central authority of the requested Party shall execute the requests or, as the case may be, transmit them to its competent authorities so that they may execute them.
Article 4
AUTORITES COMPETENTES
For both Parties, the competent authorities are the judicial authorities, including the Public Prosecutor ' s Office.
Article 5
REFUS D'ENTRAIDE
1. Mutual assistance may be denied when the legislation of the requested Party imposes it, and in particular:
(a) if the application relates to offences considered by the requested Party:
- either as political offences or as offences related to political offences;
- military offences that do not constitute ordinary offences;
(b) if the requested Party considers that the enforcement of the application is likely to affect the sovereignty, security, public order or other essential interests of its country. However, the requested Party may not invoke bank secrecy as the essential interest of its country within the meaning of this provision to refuse assistance;
(c) if the case that is the subject of criminal proceedings in the requesting Party does not constitute an offence under the law of the requested Party, in case the case is within the jurisdiction of the requested Party;
(d) if the procedure in which the application is registered is motivated by reasons related to the alleged race, sex, colour, ethnic or social origin, genetic characteristics, language, religion or belief, political opinions or any other opinion, belonging to a national minority, property, birth, disability, age or sexual orientation;
(e) if the application relates to an offence punishable by the death penalty in the legislation of the requesting Party, unless
- that it cannot be reasonably admitted that execution is likely to reduce the risk of a death penalty;
- that this request should not be made in response to a request from the accused person or the defendant himself;
- that the requesting Party shall give sufficient guarantees that the death penalty shall not be imposed or, if it is, that it shall not be executed;
(f) if the request for assistance is for the prosecution of a person on the basis of an offence for which the person has been tried and has been the subject of a final judgment or has been acquitted or amnesty permanently in the requested Party;
(g) if the requesting Party is not in a position to comply with the terms and conditions established by the requested Party in respect of confidentiality or restriction on the use of the materials provided, as provided for in Article 20 of this Convention.
2. The requested Party may defer assistance if the execution of the application is likely to prejudice an ongoing procedure in the requested Party. In such cases, the requesting Party shall be notified with reference to the probable period in which it may be satisfied with the application.
3. Before refusing assistance in accordance with this article, the requested Party, through its central authority, shall give reasons for the requesting Party to consider the refusal by specifying, where appropriate, the conditions under which such execution may take place.
4. If the requested Party refuses or adjourns the assistance, it shall inform the requesting Party of the reasons for such refusal or adjournment.
Article 6
CONTENTS
1. A mutual assistance request includes:
(a) the name of the competent authority that directs the investigation, prosecution or procedure in relation to the application;
(b) the purpose of the request and the description of the requested assistance;
(c) except in the case of a request for surrender of documents, a description of the subject matter and nature of the investigation or procedure, including a summary of the relevant facts and ad hoc legislation; and
(d) any deadline in which the application is requested to be completed.
2. A request for assistance may also include, to the extent possible:
(a) information on the identity, nationality and location of any person under investigation, prosecution or proceedings in the requesting Party and any person whose evidence is sought;
(b) information on the identity and location of a person to whom a notification is to be sent, the relationship between the person and the procedure, and the terms and conditions of the notification;
(c) information on the identity and place of residence of a person to be located;
(d) a description of the place or person to be searched and the property to be seized;
(e) a description of any particular procedure or condition to be observed in the execution of the application;
(f) information on compensation and expenses for a person to appear in the requesting Party;
(g) the need for confidentiality and the reasons that warrant it; and
(h) any other information that may be necessary for the execution of the application.
3. If the requested Party considers that the information contained in the application is not sufficient to allow it to process it, it may request additional information.
Article 7
EXECUTION OF REQUESTS
1. The requested Party shall enforce requests for mutual assistance in respect of a criminal case to it by the competent authorities of the requesting Party and for the purpose of carrying out investigations, collecting evidence or communicating records, documents or exhibits, or returning to the victim, without prejudice to the rights of third persons, in accordance with the applicable legislative provisions, objects or values derived from an offence found in the possession of the person.
2. Requests for mutual assistance shall be carried out in accordance with the form and procedural rules of the requested Party. The latter may, however, comply with separate procedural rules expressly specified by the requesting Party, provided that these rules do not infringe upon the fundamental rights or any other fundamental principle of the law of the requested Party.
3. If the requesting Party wishes the witnesses or experts to sworn, it will make the request expressly and the requested Party will follow up if its legislation does not oppose it.
Article 8
LANGUAGES
Requests, supporting documents and other communications submitted pursuant to this Convention shall be accompanied by a translation into one of the official languages of the requested Party or in the English language.
Article 9
REQUESTS OF A PARTICULAR PROCEDURE
If the requesting Party expressly requests this, the requested Party shall inform it of the date and place of execution of the request for assistance. The authorities and persons mandated by them may attend such execution if the requested Party consents to it.
Article 10
OBJECT TRANSMISSION AND DOCUMENTS
1. The exhibits, together with the originals of the records or documents, which have been submitted pursuant to a mutual assistance request, will be retained by the requesting Party unless the requested Party requests its return.
2. The Requested Party may suspend the transmission of evidence, records or documents requested for communication, if necessary for ongoing criminal proceedings.
3. At the request of the requested Party, the requesting Party shall make, as soon as possible and within the limits of the possible time limit, the elements provided under this Convention.
Article 11
AND OTHER CONTRAINING MEASURES
1. The requested Party shall, to the extent permitted by its laws, execute a search or seizure request and transmit the material collected to the requesting Party provided that the request contains information justifying such action under the laws of the requested Party.
2. The requested Party shall provide the information requested by the requesting Party on the results of searches, the location of the seizure, the circumstances of the seizure and subsequent custody of the seized material.
3. The requesting Party shall comply with any conditions, including the terms and conditions deemed necessary to protect the interests of third parties on the subject matter to be transferred, imposed by the requested Party on the seized objects transmitted to the requesting Party.
4. The requested Party shall not carry out any other requests for mutual assistance that involve constraint on persons or infringe on their fundamental rights and freedoms unless such requests involve the offences justifying the measures requested under the laws of the requested Party, to the extent that the offence has been investigated or prosecuted in its jurisdiction.
Article 12
PRODUCTS OF CRIMINAL ACTIVITIES
1. The requested Party shall endeavour, upon request, to determine whether the proceeds of an offence to the law of the requesting Party are in its jurisdiction 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 such products may be in its jurisdiction.
2. If, in accordance with paragraph 1
er of this article, the alleged proceeds from an offence are found, the requested Party shall take the necessary measures authorized by its legislation to prevent the transaction of such proceeds, be transferred or disposed of before a final determination is made in respect of them.
3. If a request for assistance is submitted to ensure the confiscation of proceeds of an offence, the request shall be carried out in accordance with the law of the requested Party.
4. The products confiscated under this Convention shall be retained by the requested Party which shall, in accordance with its legislation, unless otherwise agreed by the Parties.
5. For the purposes of this section, the proceeds of an offence include the proceeds of the possible sale of property derived from these offences.
6. Pursuant to this Article, the rights of a third party in good faith are respected according to the laws of the requested Party.
Article 13
REMISE OF DOCUMENTS
1. The requested Party shall issue the documents transmitted to it by the requesting Party for that purpose.
2. An application for the submission of a document requesting the appearance of a person must be received by the requested Party at least forty-five (45) days before the date on which the appearance is scheduled. In the event of an emergency, the requested Party may waive this condition.
3. The requested Party shall provide proof of surrender to the requesting Party. If the surrender cannot be made, the requesting Party shall be informed of it and the reasons shall be communicated to it.
4. Any person who does not comply with a document that is submitted to him under this article may therefore not be liable to any penalty or measure of constraint under the law of the requested Party.
Article 14
COMPARUTION OF TEMOINS OR EXPERTS
1. If the requesting Party considers that the appearance of a person as a witness or expert before its competent authorities is particularly necessary, it shall refer to the person in the request for surrender of the documents and the requested Party shall invite the person to appear. The requested Party shall make known the response of the person to the requesting Party.
2. In the case provided for in paragraph 1
er of this article, the application or documents shall include the approximate amount of the allowances to be paid, as well as travel and stay expenses to be refunded. The person is informed of any expenses or allowance to be paid.
3. Indemnities, including subsistence expenses, to be paid, as well as travel expenses to be reimbursed by the requesting Party to the person, shall be calculated from the place of his residence and shall be granted at least equal to those provided by the rates and regulations in force in the country where the appearance is to take place.
4. If an application is made for that purpose, the requested Party may make an advance to the person. The application will be referred to on the application or documents and refunded by the requesting Party.
Article 15
TEMPERAMENT OF DETENSIONAL PERSONS
1. Any detained person whose personal appearance is requested by the requesting Party for the purpose of collaboration in a criminal proceeding shall be temporarily transferred to the territory where the appearance is to take place, provided that it is referred to within the period specified by the requested Party and subject to the provisions of Article 14 or Article 17, to the extent that they may apply.
The transfer may be refused:
(a) if the detained person does not consent to it;
(b) if its presence is necessary in an ongoing criminal procedure in the territory of the requested Party;
(c) if his transfer is likely to extend his detention; or
(d) if other compelling considerations oppose its transfer to the territory of the requesting Party.
2. When the transferee is to remain in custody under the laws of the requested Party, the requesting Party shall keep the person in custody and return the person to detention at the end of the application.
3. When the requested Party informs the requesting Party that the person transferred shall no longer be detained, that person shall be released and treated in accordance with article 14 of this Convention.
4. A person transferred in accordance with this article shall have the duration of the penalty imposed on him in the requested Party deducted from the period of detention in the requesting Party.
Article 16
TRANSIT
1. Subject to the provisions of Article 5, each Party may grant transit in its territory of persons held in a third State and whose personal appearance has been required by the other Party for the purpose of comparing as a witness or expert or for the purpose of collaboration in the investigation. Such transit shall be granted within the limits provided by the laws of the requested Party, upon request with all necessary documents.
2. The transferred person shall remain in detention in the territory of the requesting Party within the limits permitted by the law of the requesting Party.
3. Each Party may refuse to grant transit to its nationals.
4. All transit expenses will be borne by the requesting Party.
Article 17
SAUF-CONDUIT
1. No person appearing before the competent authorities of the requesting Party, in accordance with a request by the requesting Party, may not be prosecuted, detained or subjected to any other restriction of his or her personal liberty in the territory of that Party for acts, omissions or convictions prior to his or her departure from the territory of the requested Party. Nor can this person be compelled to testify in a proceeding or to collaborate in an investigation other than the procedure or investigation to which the request relates.
2. No person appearing before the competent authorities of the requesting Party to respond to facts for which it is prosecuted may not be prosecuted, detained or subjected to any other restriction of its individual liberty on the territory of that Party for acts, omissions or convictions prior to its departure from the territory of the requested Party.
3. The immunity provided for in this article shall cease when the person, having the opportunity to leave the territory of the requesting Party for fifteen (15) consecutive days, after having been formally notified that his presence was no longer required by the competent authorities, remained in that territory or returned to it after leaving it.
4. A person who has not referred to a summons to appear whose surrender has been requested may not be submitted, even if the summons contains injunctions, to no penalty or measure of constraint, unless the summons is subsequently voluntarily surrendered to the territory of the requesting Party and has not again been cited regularly to appear.
Article 18
RECUEIL DE TEMOIGNAGE OR DEPOSITION 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 Parties may agree that the testimony or testimony shall be collected by a competent authority of the requesting Party in the presence of a competent authority of the requested Party.
Article 19
COMMUNICATION D'EXTRAITS DU CASIER JUDICIAIRE ET D'AUTRES DOCUMENTS
1. The Requested Party shall communicate, to the extent that its competent judicial authorities may themselves obtain them in such cases, the extracts of the criminal record and any information relating to the record which would be requested by the judicial authorities of the requesting Party for the purposes of a criminal case.
2. In cases other than those provided for in paragraph 1
er of this article, such application shall be carried out under the conditions provided for in the legislation, regulations or practice of the requested Party.
3. The requested Party shall provide copies of documents or parts that are accessible to the public as a public register or other record, or that may be purchased by the public.
Rule 20
CONFIDENTIALITY
1. If the wish is expressed, each Party shall endeavour to keep confidential, within the limits permitted by its law, requests for assistance or their response. If the request cannot be executed without raising the requested confidentiality, the requested Party shall inform the requesting Party of the request, which shall decide whether the request is to be carried out.
2. The requesting Party may not disclose, use or transmit information or evidence provided for purposes other than those specified in the application without the prior consent of the central authority of the requested Party.
Article 21
CERTIFICATION AND AUTHENTIFICATION
1. Subject to paragraph 2 of this article, requests for assistance and related documents, as well as documents or documents provided in response to such requests, shall be exempted from any certification or authentication process.
2. As long as the legislation of the requested Party authorizes it, documents, records and other documents are transmitted in the form requested by the requesting Party or accompanied by a certification or authentication requested by the requesting Party in order to make them admissible under the law of the requesting Party.
3. The requested Party may transmit certified copies of requested records or documents. However, if the requesting Party makes the request expressly, the originals shall be communicated to it as far as possible.
Article 22
DEPENSES
1. The requested Party shall bear the costs of carrying out the request for assistance but the requesting Party shall:
(a) expenses related to the transfer of any person to or from the territory of the requested Party at the request of the requesting Party and any allowances or expenses to be paid to that person in the requesting Party following an application under section 15 or 16;
(b) all travel of officers accompanying the person following a request made under section 16; and
(c) expenses and expert fees.
2. If in the course of the application it appears that extraordinary costs are required to meet the request, the Parties shall consult to determine the terms and conditions under which the requested assistance may be provided.
Article 23
ECHANGE D'AVIS DE CONDAMNATION
Each Party shall give notice to the other Party of criminal awards and subsequent measures that concern nationals of that Party and have been registered in the criminal record. The central authorities communicate these notifications at least once a year.
Article 24
CONSULTATIONS
1. Where necessary, the Parties shall consult promptly, at the request of either Party, with respect to the interpretation, application or execution of this Convention.
2. Any dispute in this regard is resolved through diplomatic means in cases where central authorities fail to reach agreement.
Rule 25
AND DENONCIATION
1. This Convention comes into force thirty (30) days after the date on which the Parties have notified each other of their respective procedures necessary for its entry into force.
2. 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.
3. Any Party may denounce at any time this Convention by written notification addressed to the other Party through diplomatic channels. Denunciation takes effect six months after the day of notification.
4. Requests for mutual assistance received prior to the denunciation of the Convention are nevertheless processed in accordance with the terms of the Convention as if the Convention were still in force.
IN WITNESS WHEREOF, the undersigned, duly authorized by their respective Governments, have signed this Convention.
DONE in Brussels on January 17, 2007, in double copy in Dutch, French, English and Korean languages, each text being equally authentic.
