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Law Approving The Convention On Mutual Assistance In Criminal Matters Between The Government Of The Kingdom Of Belgium And The Government Of Hong Kong, Administrative Region Special Of The People's Republic Of China, Signed In Brussels On 20, Seven

Original Language Title: Loi portant assentiment à la Convention d'entraide judiciaire en matière pénale entre le Gouvernement du Royaume de Belgique et le Gouvernement de Hong Kong, Région administrative spéciale de la République populaire de Chine, signée à Bruxelles le 20 sept

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5 AOUT 2006. - An Act to approve the Convention on Mutual Assistance in Criminal Matters between the Government of the Kingdom of Belgium and the Government of Hong Kong, Special Administrative Region of the People's Republic of China, signed in Brussels on 20 September 2004 (1) (2)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Convention on Mutual Assistance in Criminal Matters between the Government of the Kingdom of Belgium and the Government of Hong Kong, Special Administrative Region of the People's Republic of China, signed in Brussels on 20 September 2004, will come out its full and 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 5 August 2006.
ALBERT
By the King:
Minister of Foreign Affairs,
K. DE GUCHT
The Minister of Justice,
Ms. L. ONKELINX
Seen and sealed the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Session 2005-2006.
Senate:
Documents. - Bill tabled on 12 April 2006, No. 3-1654/1. - Report, number 3-1654/2.
Annales parliamentarians. - Discussion, session of 1er June 2006. - Vote, meeting of 1er June 2006.
House of Representatives:
Documents. - Project transmitted by the Senate, No. 51-2523/1. - Text adopted in plenary and subject to Royal Assent, No. 51-2523/2.
Annales parliamentarians. - Discussion, meeting of June 15, 2006. - Vote, meeting of 15 June 2006.
(2) In accordance with article XXII, the Convention enters into force on 1er December 2006.

Convention on Mutual Assistance in Criminal Matters between the Government of the Kingdom of Belgium and the Government of Hong Kong, Special Administrative Region of the People's Republic of China
The Government of the Kingdom of Belgium
and
The Government of Hong Kong,
Special Administrative Region of the People's Republic of China
(hereinafter "Hong Kong, Special Administrative Region")
duly authorized by the Central Government of the People ' s Republic of China
Desiring to improve the effectiveness of both Parties in the enforcement of the law in the prevention, investigation and prosecution of crime, as well as in the confiscation of proceeds and instruments of criminal activity;
Recognizing that cooperation in the enforcement of the law will respect fundamental and internationally recognized human rights;
The following agreed:
Scope of mutual assistance
ARTICLE Ier
1. The Parties shall mutually agree, in accordance with the provisions of this Convention, that mutual legal assistance is as broad as possible in the prevention, investigation and prosecution of criminal offences under the jurisdiction of the requesting Party, and in the related proceedings.
2. Assistance includes:
(a) identification and location of persons and objects;
(b) delivery of documents;
(c) obtaining evidence, objects or documents;
(d) the execution of search and seizure requests;
(e) facilitating the personal appearance of witnesses or experts;
(f) the temporary transfer of detained persons so that they may appear as witnesses or for other purposes;
(g) obtaining judicial documents or other official documents;
(h) the research, capitalization, seizure and confiscation of proceeds and instruments of criminal activity;
(i) communication of information, documents and records, including criminal records;
(j) the surrender of property, including the loan of evidence; and
(k) any other form of mutual assistance consistent with the purposes of this Convention and not inconsistent with the legislation of the requested Party.
3. The mutual assistance referred to in this Convention may be granted for criminal offences under the laws relating to taxes, customs duties, control of foreign exchange transactions or other financial matters, provided that the main objective of the investigation is not the establishment or collection of taxes.
4. The assistance referred to in this Convention shall not include:
(a) detention of persons for extradition;
(b) the execution in the requested Party of criminal convictions in the requesting Party;
(c) the transfer of prisoners to serve their sentence.
Central authorities
ARTICLE II
1. Each Party shall designate a central authority.
2. For Hong Kong, Special Administrative Region, the central authority is the Secretary of Justice or its legal representative. For the Kingdom of Belgium, the central authority is the Federal Public Service Justice and, for urgent cases, the Office of the Federal Prosecutor. Each party may change its central authority; where appropriate, it will mean change to the other Party.
3. Applications submitted pursuant to this Convention shall be sent exclusively by the central authority of the requesting Party to the central authority of the requested Party. Requests are submitted in writing. In the event of an emergency, the request may be sent by fax.
4. The central authority of the requested Party shall promptly execute the requests or, as the case may be, transmit them to its competent authorities so that they may execute them.
5. Any communication intended to obtain additional information may be made directly between the competent authorities responsible for the execution of the application.
Other forms of mutual assistance
ARTICLE III
This Agreement shall not exclude any mutual assistance resulting from other treaties or conventions applicable to the Parties and shall not prevent other forms of mutual assistance between the competent authorities of the Parties.
Restrictions on mutual assistance
ARTICLE IV
1. The requested Party may refuse and, if its legislation so requires, refuse assistance in the following cases:
(a) if the acceptance of the application affects, in the case of the Government of the Kingdom of Belgium, the sovereignty, security or public order of the Kingdom of Belgium, or, in the case of the Government of Hong Kong, Special Administrative Region, the sovereignty, security or public order of the People's Republic of China;
(b) if it considers that access to the application would seriously affect its essential interests;
(c) if the request for assistance relates to an offence which, by the circumstances in which it was allegedly committed or actually committed, constitutes a political offence or an offence related to a political offence;
(d) if it has substantial grounds for believing that the request for assistance will have the effect that a person will be prosecuted, punished or harmed by the person's sex, race, religion, nationality or political opinions;
(e) if the requesting Party is unable to meet any confidentiality or restrictions relating to the use of the materials provided;
(f) if the request for assistance is for the prosecution of a person on the basis of an offence for which the person was tried and was subject to a final judgment or amnesty in the requested Party;
(g) in cases of requests involving coercive measures, where alleged actions or omissions constitute the offence would not have constituted an offence if they had taken place in the jurisdiction of the requested Party;
(h) if the application relates to a military offence not an ordinary criminal offence;
(i) if the application is not in accordance with the provisions of Article V;
(j) if the application is likely to result in a judgment pronounced by a court or tribunal established in exceptional circumstances or in exceptional cases and whose operating procedures and procedures would deviate from internationally recognized principles of law.
2. The requested Party may not invoke bank secrecy as an essential interest in denying mutual assistance in accordance with paragraph 1 (b).
3. Paragraph 1 (c) of this article does not apply to an offence that the requested Party does not consider as a political offence under any other international convention applicable to the Parties;
4. The requested Party may refuse assistance if the application relates to an offence punishable by the death penalty in the requesting Party, but for which the death penalty or is not provided for in the requested Party or is normally not executed, unless the requesting Party gives sufficient guarantees that the death penalty will not be imposed or, if it is pronounced, that it will not be executed.
5. The requested Party may defer assistance if the enforcement of the application is likely to interfere with an ongoing investigation or prosecution in the requested Party.
6. Before refusing or deferring assistance in accordance with this article, the requested Party, through its central authority:
(a) promptly inform the requesting Party of existing grounds for considering refusal or adjournment; and
(b) consults with the requesting Party to decide whether mutual assistance may be granted the terms and conditions deemed necessary by the requested Party.
7. If the requesting Party accepts mutual assistance under the terms and conditions specified in paragraph 6 (b), it must comply with that provision.
Requests
ARTICLE V
1. Requests must include:
(a) the specific coordinates of the authority for which the application is filed;
(b) a description of the nature of the investigation, prosecution, offence or criminal case, as well as a summary of the relevant facts and laws;
(c) where possible the identity and nationality of the person concerned, as well as his or her domicile or place of official residence;
(d) a description of the purpose of the application and the nature of the requested assistance;
(e) any confidentiality requirement;
(f) details of any particular procedure that the requesting Party wishes to follow; and
(g) the wishes with respect to the deadline for the execution of the application, and if possible the reasons for the emergency.
2. Requests and documents submitted in support of requests are sent to one of the official languages of the requesting Party and accompanied by a translation into English. The cost of translation of an application or response to an application will be borne by the requesting Party.
Application implementation
ARTICLE VI
1. Requests shall be carried out in accordance with the law of the requested Party and, as long as such legislation of the requested Party does not prohibit it, in accordance with the guidelines provided in the application.
2. The requested Party shall promptly inform the requesting Party of any circumstances that may significantly delay the execution of the application.
3. The requested Party shall promptly inform the requesting Party of any decision not to complete or partially implement a request for assistance, as well as the reasons for that decision.
4. Insofar as this is not inconsistent with the law of the requested Party, the competent authority in the requested Party may authorize the judges and competent authorities of the requesting Party, as well as other persons concerned by the research or procedure and mentioned in the application, to be present at the time of the application and to participate in the procedure in the requested Party.
Fees
ARTICLE VII
1. The requested Party shall cover all current costs associated with the execution of the application in its territory, except:
(a) costs arising from the use of experts;
(b) interpretation costs;
(c) travel and residence allowances for witnesses, experts, detainees and escorts.
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 application may continue.
Limits to use
ARTICLE VIII
1. The requested Party may, after consultation with the requesting Party, request that the information or evidence provided be kept confidential or be disclosed or used only under the terms and conditions specified by the requested Party.
2. The requesting Party may not disclose or use any information or evidence provided for purposes other than those specified in the application without the prior agreement of the Central Authority of the requested Party.
Presence of persons during the execution of requests
ARTICLE IX
Upon request, the requested Party shall inform the requesting Party of the date and place of execution of the request for assistance so that the authorities of the requesting Party or other interested Parties may attend the request if the requested Party consents to it.
Obtaining evidence, objects or documents
ARTICLE X
1. If the request is made for evidence to be collected, the requested Party shall ensure that such evidence is collected.
2. For the purposes of this Convention, the communication or collection of evidence includes the testimony and the production of documents, records or other documents.
3. For the purposes of requests submitted pursuant to this article, the requesting Party shall specify the questions to be posed to the witness or to the person who provides evidence, as well as the points on which they must be questioned.
4. If necessary, the competent authority of the requested Party may, either on its own initiative or at the request of one of the persons referred to in Article IX, ask the witness or the person who provides evidence of other matters other than those specified in paragraph 3 of this Article.
5. A person called to testify in the requested Party under a mutual assistance request may refuse to testify if the legislation of the requested Party allows him to refuse to testify in similar circumstances in proceedings initiated in the requested Party. No privilege granted under the law of the requesting Party in respect of testimony shall be taken into account in the execution of requests in accordance with this article; the invocation of such privilege will, however, be recorded in the minutes.
6. Where possible and consistent with their legislation, Parties may decide, on a case-by-case basis, that the statement will be taken by videoconference under certain specific conditions.
Submission of documents
ARTICLE XI
1. The requested Party shall issue any procedural act transmitted to it by the requesting Party for that purpose.
2. The requesting Party shall submit a request for a submission of a document for a appearance in the requesting Party at least 40 days before the date fixed for the appearance.
3. The delivery can be done by simple transmission of the document to the recipient. At the request of the requesting Party, the requested Party shall make the provision in the form provided for in its legislation for the delivery of similar documents or in a particular manner consistent with its legislation.
4. To the extent permitted by its legislation, the requested Party shall return evidence of surrender in the form requested by the requesting Party.
5. Any person who fails to comply with an act of procedure that is served on him or her cannot therefore be liable to any penalty or measure of constraint under the law of the requested Party.
Public documents and official documents
ARTICLE XII
1. Subject to its legislation, the requested Party shall provide copies of documents accessible to the public.
2. Subject to its legislation, the requested Party may provide copies of any document, record or information in the possession of a government department or agency that is not accessible to the public.
Legalization and authentication
ARTICLE XIII
Unless expressly requested by the Central Authority of the other Party, the evidence, documents, reports or other documents transmitted by each Party under this Convention shall not require any form of legalization or authentication. Documents are legalized or authenticated by consular or diplomatic officials only if the legislation of one of the Parties specifically requires it.
Transfer of detained persons
ARTICLE XIV
1. Any person detained in the requested Party whose presence in the requesting Party is requested for mutual assistance in accordance with this Convention shall be transferred by the requested Party to the requesting Party, provided that the requested Party and the person concerned consent to it and that the requesting Party guarantees the retention in custody of that person and its subsequent removal to the requested Party.
2. If the prison sentence of a person transferred under this section expires while that person is in the requesting Party, the requested Party shall notify the requesting Party, which shall then ensure the release of that person.
3. The time spent in detention in the requesting Party is considered to be part of the penalty to be incurred in the requested Party.
Transfer of other people
ARTICLE XV
1. If the requesting Party considers that the personal appearance of a witness or expert is necessary for the purpose of mutual assistance, it shall inform the requested Party. It invites the witness or expert to appear and informs the requesting Party of the response of the witness or expert.
2. When an application is filed under this section, the requesting Party shall indicate the approximate amount of compensation to be paid, including travel and residence expenses. If a witness or expert expresses the request, the requesting Party may make an advance of funds.
Immunity
ARTICLE XVI
1. Any person who consents to the transfer in accordance with Articles XIV or XV may not be prosecuted, detained or subjected to any other restriction of his or her personal liberty in the requesting Party for a criminal offence, or prosecuted in a civil case in which he or she could not be prosecuted if he or she was not in the requesting Party, for any act or omission before his or her departure from the requested Party.
2. Any person who consents to the transfer in accordance with Articles XIV or XV may not be prosecuted on the basis of his or her testimony, except in case of false testimony.
3. A person who consents to the transfer in accordance with Articles XIV or XV may not be required to testify in any other procedure other than that to which the application refers.
4. Any person who does not consent to the transfer in accordance with Articles XIV or XV may therefore not be liable to any penalty or measure of constraint on the part of the courts of the requesting Party or the requested Party.
5. Any person who is the subject of a summons to appear from the requesting Party in order to respond to acts for which it is prosecuted may not be prosecuted, detained or subjected to any other restriction of liberty in the requesting Party for acts or omissions prior to its departure from the requested Party and whose citation does not mention.
6. Paragraphs 1er and 5 are not applied if the person, being free to leave, did not leave the requesting Party within 30 days after being informed that his or her presence was no longer required, or if he or she returned to the requesting Party after leaving it.
Search and seizure
ARTICLE XVII
1. The Requested Party shall, to the extent permitted by its legislation, carry out requests for search, seizure and surrender to the Requesting Party of any evidence relevant to a criminal case proceeding or investigation, the offence of which is, in accordance with the law of the requesting Party, liable to a maximum prison sentence not less than:
(a) 24 months for applications to Hong Kong, Special Administrative Region;
(b) 12 months, in the case of requests to the Kingdom of Belgium.
2. The Requested Party shall provide all information requested by the requesting Party concerning the results of any search, place of seizure, the circumstances of the seizure and the preservation of the seized property.
3. The requesting Party shall comply with all the conditions imposed by the requested Party in respect of any property seized that is handed over to the requesting Party.
Proceeds of criminal activities
ARTICLE XVIII
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 grounds on which it is based that such products may be in its jurisdiction.
2. If, pursuant to paragraph 1, the alleged proceeds from an offence are found, the Requested Party shall take the necessary measures authorized by its legislation to prevent transactions, be transferred or disposed of before a court of the Requesting Party has made a final decision 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. Products confiscated under this Convention shall be retained by the requested Party, unless otherwise agreed by the Parties.
5. Products of an offence include instruments used in connection with the commission of an offence.
Other information in relation to the procedure
ARTICLE XIX
1. When an offence has been committed in the territory of one of the Parties and the offence may also be prosecuted by the other Party, the first may inform the second party if it decides not to continue the offence. Upon request, the first Party may provide information and evidence relating to the offence.
2. If it is established that the offence took place in the jurisdiction of the second Party, the latter shall inform the other Party of the possibilities and remedies authorized in its jurisdiction.
Spontaneous information
ARTICLE XX
Without prejudice to its own investigations or procedures, a Party may, without prior request, provide the other Party with information relating to the commission of criminal offences where it considers that such information is likely to assist the receiving Party in investigations or proceedings or to conduct a request for judicial cooperation of that Party in accordance with this Convention.
Settlement of disputes
ARTICLE XXI
Any dispute arising from the interpretation, application or implementation of this Convention shall be settled by diplomatic means in cases where the Central Authorities fail to reach agreement.
Entry into force and denunciation
ARTICLE XXII
1. This Convention shall enter into force on the first of the second month following the month in which the Parties shall notify each other in writing of their respective procedures necessary for the entry into force of the Convention.
2. This Convention shall apply to applications, whether relevant acts or omissions have occurred prior to the entry into force of the Convention or not.
3. Each Party may denounce this Convention at any time by notification to the other Party. In this case, the Convention ceases to be in force upon receipt of this notification. Requests for mutual assistance received prior to the denunciation of the Convention will nevertheless be processed in accordance with the terms of the Convention as if the Convention were still in force.
In faith, the undersigned, duly authorized by their respective Governments, have signed this Convention.
Done in Brussels on 20 September 2004, in duplicate, in French, Dutch, Chinese and English, each text being equally authentic.