Posted the: 2012-10-02 Numac: 2012015139 FEDERAL Foreign Affairs, external trade and development COOPERATION PUBLIC SERVICE July 10, 2012. -Law concerning consent to the Convention on mutual assistance in criminal matters between the Kingdom of Belgium and the Republic of Korea, done at Brussels on 17 January 2007 (1) (2) ALBERT II, King of the Belgians, to all, present and future, hi.
The Chambers have adopted and we endorse the following: Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
S. 2. 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, will release its full and complete effect.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given to Brussels, July 10, 2012.
ALBERT by the King: the Deputy Prime Minister and Minister of Foreign Affairs, D. REYNDERS the Minister of Justice, Ms. A. TURTELBOOM sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Notes (1) Session 2011-2012.
Records bill filed February 22, 2012, no. 5-1495/1.
Report on behalf of the Committee No. 5-1495/2.
Parliamentary Annals Discussion, meeting of May 31, 2012.
Vote, meeting of May 31, 2012.
House of representatives Documents passed by the Senate, no. 53-2225/1.
Report on behalf of the Committee No. 53-2225/2.
Text adopted in plenary meeting and submitted to the sanction royale No. 53 - 2225/3.
Parliamentary Annals Discussion, meeting of June 14, 2012.
Vote, meeting of June 14, 2012.
(2) this Convention enters into force on September 29, 2012.
Convention on mutual assistance in criminal matters between the Kingdom of Belgium and the Republic of Korea. the Kingdom of Belgium and the Republic of Korea (hereinafter referred to as "the Parties"), desiring to establish more effective cooperation in the field of mutual assistance on criminal judicial assistance, have agreed upon the following provisions: Article 1 scope 1.
The Parties undertake to afford each other, according to the provisions of this Convention, aid the widest possible in any proceedings in criminal offences including repression is, at the time where mutual assistance is requested, within the jurisdiction of the judicial authorities of the requesting party.
For the purposes of this Convention, is meant by 'procedure' all aspects of the procedure in criminal matters, including investigations, prosecutions and judicial education.
2. criminal matters also include offences relating to legislation on taxes, tariffs, operations control, Exchange or any other revenue-related issue where the main objective of the procedure is not on the establishment or the levying of taxes.
3. assistance includes: (a) the collection of evidence or statements from persons;
(b) the communication of information, documents, records and evidence;
(c) the location or identification of persons or objects;
(d) delivery of documents;
(e) executing requests for search and seizure;
(f) aid in upgrading availability of detained persons or others for the purpose of evidence or assistance in investigations;
(g) the measures taken to help recover the products of criminal activities; and (h) any other form of assistance compatible with the object of this Convention and which is not prohibited by the legislation of the requested Party.
4. this Convention does not apply: (a) the extradition of persons;
(b) execution, in the requested Party, pronounced judgements in criminal matters in the requesting party, except within the limits authorized by the legislation of the requested Party and the Convention;
(c) to the transfer of detainees for the purpose of executing a sentence. and (d) the transfer of proceedings in criminal matters.
Article 2 other agreements this Convention shall not affect obligations existing between the Parties, in accordance with other conventions, agreements or otherwise, and shall not prevent the Parties to agree and continue to agree a mutual assistance pursuant to other agreements, arrangements or other.
Article 3 authorities plants 1. Each Party shall designate a central authority which shall deposit 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 communicate between them through diplomatic channels or, in an emergency, directly, for the purposes of this Convention.
3. the central authority of the requested party running applications or, as appropriate, forward them to its competent authorities so that they are running.
Section 4 authorities competent for both Parties, the competent authorities are the judicial authorities, including the Crown.
Article 5 refusal of mutual assistance 1. Mutual assistance may be refused when required by the legislation of the requested Party, and in particular: (a) if the request relates to offences considered by the requested party:-either as political offences, or as offences related to political offences;
- or as military offences which are not offences under ordinary law;
(b) if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, public order or other essential interests of his country. However, the requested Party cannot invoke banking secrecy as essential interest of his country to the meaning of this provision to refuse mutual assistance;
(c) if the matter which is the subject of criminal proceedings in the requesting party is not an offence under the terms of the legislation of the requested Party, where the case is within the jurisdiction of the requested Party;
(d) if the procedure in which the request fits is motivated by reasons related to alleged race, sex, colour, ethnic or social origin, genetic characteristics, language, religion or belief, political or any other opinion, membership of a national minority, fortune, birth disability, age or sexual orientation;
(e) if the request relates to an offence punishable by the death penalty in the legislation of the requesting party, unless - that it can be reasonably accepted that execution is likely to reduce the risk of a sentence of death;
-that this application makes a request from the accused or the accused himself;
-that the applicant gives sufficient guarantees that the death penalty will be not pronounced or, if it does, that it will not run.
(f) if the request for mutual assistance is the prosecution of a person on the ground of an offence for which that person has been judged and made the subject of a final judgment or has been acquitted or amnestied definitively in the part required;
(g) if the applicant is not able to fulfil the conditions laid down by the party required confidentiality or restriction on the use of parts supplied, as laid down in article 20 of this Convention.
2. the requested Party may postpone assistance if execution of the request is likely to prejudice a pending procedure in the requested Party. In such cases, the requesting party is notified with an indication of the likely period in which it may be satisfied with on-demand.
3 before refusing assistance pursuant to this article, the requested Party, through its central authority, informed reasoned way the applicant's existing patterns to consider refusal specifying, where appropriate, the conditions under which this execution could take place.
4. If the requested party refuses or postpones assistance, it shall inform the applicant of the reasons for this refusal or the adjournment.
Article 6 contents of requests 1. A request for mutual assistance includes: (a) the name of the competent authority which runs the statement, prosecution or proceeding in connection with the application;
(b) the purpose of the request and the description of requested assistance;
(c) except in the case of surrender of documents, a description of the object and the nature of the investigation or proceedings, including a summary of the relevant facts and the ad hoc legislation; and (d) any term in which it is hoped that the application is completed.
2. a request for mutual assistance may also include, to the extent possible: (a) information on the identity, nationality and location of any person subject to the investigation, prosecution or proceedings in the requesting party and any person which it wishes to obtain evidence;
(b) information on the identity and location of a person to whom a notification must be given, on the link between this person and the procedure as well as on the modalities of the notification;
(c) information on the identity and place of residence of a person to locate;
(d) a description of the place or person to be searched and property to grasp;
(e) a description of any procedure or condition to be observed in the execution of the request;
(f) information about the allowances and expenditures for a person summoned to appear in the requesting party;
(g) the need for confidentiality and the reasons
which justify it; and (h) any other information that may be necessary for the execution of the request.
3. If the requested Party considers that the information contained in the request is not sufficient to allow him to treat it, it may request additional information.
Article 7 EXECUTION of requests for assistance 1. The required shall execute requests for assistance relating to a criminal case which will be sent by the competent authorities of the requesting party and which have as their object to perform acts of investigation, collect evidence, records, documents or exhibits, or render the victim, without prejudice to the rights of third persons in accordance with the applicable legislative provisions, of objects or values from an offence found in the possession of the author thereof.
2. Requests for assistance are executed according to the forms and rules of procedure of the requested Party.
The latter may, however, meet distinct procedural rules which are expressly indicated by the requesting party, provided that these rules do not affect the fundamental rights or other fundamental principle of the law of the requested Party.
3. If the applicant wishes to witnesses or experts to file under oath, it will specifically request and the requested Party will give more if its law does not preclude.
Article 8 language applications, documents attached in support and other communications submitted in accordance with this Convention must be accompanied by a translation in an official language of the requested Party or in the English language.
Section 9 requests the PROCEDURE specific when the applicant specifically requests, the requested Party will inform him of the date and the place of execution of the request for assistance. The authorities and persons authorised by them may attend this execution if the requested Party consents.
Article 10 TRANSMISSION of objects and DOCUMENTS 1.
The exhibits, as well as the original records or documents, which will be communicated in pursuance of a request for mutual assistance, will be retained by the applicant unless the requested party request the return.
2. the requested Party may postpone the transmission of parts to conviction, records or documents whose disclosure is sought, if they are required for any criminal proceedings in progress.
3. at the request of the requested Party, the requesting party makes, as soon as possible and within the limits of the possible, the evidence in application of the present Convention.
Article 11 searches, seizures and other measures 1. The requested party running, insofar as its laws permit, a request for search or seizure and transmits collected to the requesting party provided that the request contains the information justifying this action under the laws of the requested Party.
2. the requested Party provides the information requested by the applicant on the results of the searches, the place of seizure, the circumstances of the seizure, and the subsequent custody of the seized material.
3. the applicant conforms to any conditions, including the terms and conditions deemed necessary to protect the interests of third parties on the object to transfer, imposed by the requested Party as the seized objects transmitted to the requesting party.
4. the requested Party does not perform other requests for assistance involving constraint on people or infringe their fundamental rights and freedoms only on condition that these requests involve offences justifying the measures required under the laws of the requested Party, insofar as the offence was the subject of an investigation or prosecution in its jurisdiction.
Section 12 criminal 1 products. The requested Party shall endeavour, upon request, to establish if the products of an offence under the law of the requesting party are located in its jurisdiction 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 such products can be found within its jurisdiction.
2. If, in accordance with paragraph 1 of this article, goods presumed come from an offence are found, the requested Party shall take necessary measures permitted by its legislation to prevent that they are the subject of transactions, be transferred or assigned before taking a final decision thereon.
3. If it is presented a request for assistance to ensure the confiscation of proceeds of crime, this request shall be executed in accordance with the legislation of the requested Party.
4. products confiscated under this Convention are retained by the requested Party which provides according to its law, unless otherwise agreed between the Parties.
5. for the purposes of this article, the proceeds of crime include products from the eventual sale of assets from these offences.
6. in application of this article, the rights of a third party in good faith are respected under the laws of the requested Party.
Article 13 delivery of DOCUMENTS 1.
The requested Party shall carry out delivery of the documents forwarded to him for this purpose by the applicant.
2. a request for surrender of a document requesting the appearance of a person must be received by the party required at least forty-five (45) days prior to the date on which the attendance is expected.
In an emergency, the requested Party may waive this condition.
3. the requested Party shall transmit proof of delivery to the requesting party. If delivery cannot be effected, the applicant is informed and is communicated to the grounds.
4. any person who does not conform to a document that is delivered pursuant to this section may thereby be liable to any penalty or coercive measure pursuant to the law of the requested Party.
Article 14 attendance of witnesses or of EXPERTS 1. If the applicant considers that the appearance of a person as a witness or expert before its competent authorities is particularly necessary, she will mention in the request for surrender of the documents and the requested Party shall invite the person to appear. The requested Party will be know the answer of the person to the requesting party.
2. in the case provided for in paragraph 1 of this article, the application or the documents shall mention the approximate amount of the compensation, as well as travel and living expenses to be refunded. The person is informed of any expenditure or allowance payable.
3. the allowances, including living expenses, to be paid, as well as travel expenses to be reimbursed by the applicant to the person, shall be calculated from the place of his residence and will be granted at rates at least equal to those provided by tariffs and regulations in force in the country where the appearance should happen to him.
4. If a request is made for this purpose, the requested Party may grant an advance person. This will be mentioned on the application or documents and paid by the applicant.
Article 15 temporary people detained transfer 1. Any detained person whose personal appearance is requested by the requesting party for the purposes of collaboration in criminal proceedings will be transferred temporarily in the territory where the appearance to be held, under condition of his discharge within the time limit indicated by the requested Party and subject to the provisions of article 14 or article 17, insofar as they may apply.
The transfer may be refused: (a) if the detainee does not; consent
(b) if his presence is necessary in a criminal proceedings in progress in the territory of the requested Party;
(c) if the transfer is likely to extend her detention; or (d) if other compelling considerations oppose his transfer in the territory of the requesting party.
2. when the transferred person shall remain in detention under the laws of the requested Party, the requesting Party keeps that person in custody and return in detention at the end of the execution of the request.
3. when the requested Party shall inform the applicant that the transferee should no longer be kept in detention, that person is given freedom and treated in accordance with article 14 of the Convention.
4. a person transferred under this article sees the length of the sentence imposed on him in the required portion deducted from the period of detention undergone in the requesting party.
Article 16 TRANSIT 1.
Subject to the provisions of article 5, each party may grant the transit through its territory of persons detained in a third country and whose personal appearance has been requested by the other party for the purposes of appearance as a witness or expert or for the purposes of cooperation in the investigation.
This transit will be granted within the limits laid down by the laws of the requested Party, on application accompanied by all the necessary documents.
2. the transferee remains in custody 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 costs arising from the transit will be borne by the requesting party.
Article 17 safe conduct 1.
Any person appearing before the competent authorities of the requesting party, in accordance with
a request, cannot be prosecuted, detained or subjected to any other restriction of his personal liberty in the territory of that party for facts, omissions or convictions prior to his departure from the territory of the requested Party. This person cannot be forced to testify in a proceeding or to cooperate in one investigation other than the procedure or investigation to which the request relates.
2. any person appearing before the competent authorities of the requesting party to address facts for which she is the subject of proceedings cannot be prosecuted, detained or subjected to any other restriction of his personal liberty in the territory of that party for facts, omissions or convictions prior to his departure from the territory of the requested Party.
3. the immunity provided for in this section ceases when the person, having had the opportunity to leave the territory of the requesting party for fifteen (15) consecutive days after being officially notified that his presence was no longer required by the competent authorities, has nevertheless remained in the territory or has returned after having left.
4. a person who has failed to answer a summons to which the discount has been applied may be subject, even though this summons contains a notice of, to any punishment or measure of constraint, unless she eventually surrendered voluntarily in the territory of the requesting party and that it is again summoned regularly to appear.
Article 18 collection of testimony or DEPOSITION by video-conferencing 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. The Parties may agree that the testimony or evidence will be collected by a competent authority of the requesting party in the presence of a competent authority of the requested Party.
Article 19 COMMUNICATION of extracts of criminal records and other DOCUMENTS 1. The requested Party communicates, to the extent where its competent judicial authorities might themselves get them in such a case, the records judicial and information relating to the latter that it 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 of this article, it is given following such request in the conditions laid down by law, regulations or practice of the requested Party.
3. the requested Party provides copies of documents or parts that are accessible to the public as a public registry or another, or which can be purchased by the public.
Article 20 confidentiality 1.
If wish, each Party shall endeavour to keep confidential, to the extent permitted by its law, requests for assistance or their response. If the request cannot be executed without that is lifted the confidentiality as requested, the requested Party shall inform the requesting party, which decides if there is nevertheless instead of running this application.
2. the requesting party may disclose, use or transmit information or an item of evidence provided for purposes other than those specified in the request without the prior consent of the central authority of the requested Party.
Article 21 CERTIFICATION and authentication 1. Subject to paragraph 2 of this article, requests for mutual assistance and documents y thereto, as well as documents or parts provided in response to such claims, shall be exempt from all formalities of certification or authentication.
2. insofar as the law of the requested Party authorizes, documents, records and other documents are transmitted in the form requested by the applicant or part accompanied by a certification or authentication requested by it in order to make them admissible according to the law of the requesting party.
3. the requested Party may transmit certified records or documents requested copies. However, if the applicant so requests express, originals is communicated to the extent possible.
Article 22 expenses 1. The requested Party shall bear the costs for the implementation of the request for assistance but the applicant supports: (a) expenses related to the transfer of any person to destination or from the territory of the requested Party at the request of the applicant party and all allowances or expenses payable to that person when it is located in the requesting party pursuant to a request formulated in accordance with article 15 or 16;
(b) all travel expenses of the officers accompanying the person following a request pursuant to article 16; and (c) the expenses and fees of experts.
2. If in the course of the execution of the request it appears that charges of extraordinary nature are required to meet the demand, the Parties shall consult to fix the terms and conditions under which requested assistance may be provided.
Article 23 exchange of notice of conviction each party gives the other party notice of penal sentences and post-judgement measures which concern citizens of this part and which were the subject of an inscription criminal. The central authorities shall communicate these notices at least once a year.
Article 24 CONSULTATIONS 1.
If necessary, the Parties shall consult promptly, at the request of one or the other, in relation to the interpretation, application or implementation of this Convention.
2. any dispute in this regard is set through the diplomatic channel, in cases where the central authorities are unable to reach an agreement.
Article 25 entry into force and termination 1. This Convention shall enter into force thirty (30) days after the date on which the Parties have mutually notified the completion of their respective procedures required for its entry into force.
2. 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.
3. the one or other of the Parties may at any time denounce this Convention by written notification, addressed to the other party through diplomatic channels. The denunciation shall take effect six months after the day of notification.
4. Requests for assistance which have been received prior to the termination of the Convention are nevertheless treated in accordance with under the terms of the Convention as if it was still in force.
IN witness whereof, the undersigned, duly authorized by their respective Governments, have signed the present Convention.
DONE at Brussels, on 17 January 2007, in duplicate in Dutch, French, English and Korean languages, each text being equally authentic.