belgiquelex.be - Carrefour Bank of Legislation 4 MARCH 1998. - An Act to Accredit the Convention between the Kingdom of Belgium and the United States of America concerning mutual legal assistance in criminal matters, and an Annex, signed in Washington on 28 January 1988 (1)
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 between the Kingdom of Belgium and the United States of America concerning mutual legal assistance in criminal matters, and the annex, signed in Washington on 28 January 1988, will come out its full and complete effect.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 4 March 1998.
ALBERT
By the King:
Minister of Foreign Affairs,
E. DERYCKE
Minister of Justice,
S. DE CLERCK
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) 1996-1997 session:
Senate.
Documents. - Bill tabled on 9 April 1997, No. 1-606/1. - Report, no. 1-606/2. - Text adopted by the commission, no. 1-606/3.
Annales parliamentarians. - Discussion. Session of 16 July 1997. - Vote. Meeting of 17 July 1997.
Room.
Documents. - Project transmitted by the Senate, No. 1139/1.
Session 1997-1998:
Annales parliamentarians. - Discussion. Session of 9 December 1997. - Vote. Session of 11 December 1999.
CONVENTION ENTER LE ROYAUME DE BELGIQUE ETATS-UNIS D'AMERIQUE CONCERNANT L'ENTRAIDE JUDICIAIRE EN MATIERE PENALE
The Government of the Kingdom of Belgium and the Government of the United States of America, wishing to conclude a Convention concerning mutual legal assistance in criminal matters,
The following agreed:
Article 1
erScope
1. The Contracting States shall agree, in accordance with the provisions of this Convention, mutual legal assistance in all matters relating to the search, prosecution and punishment of offences.
2. Mutual legal assistance includes:
(a) the location or identification of persons;
(b) delivery of documents;
(c) communication of information and objects including documents, records and evidence;
(d) the hearing of witnesses and the production of documents;
(e) the execution of searches and seizures;
(f) transfer of persons detained for their hearing as witnesses or for other purposes;
(g) the location, research, capitalization, seizure and confiscation of illicit gains; and
(h) restitution of their property to victims of an offence.
3. Unless this Convention otherwise provides, mutual assistance shall be granted for any offence punishable by the laws of the requesting State.
4. This Convention applies only to mutual legal assistance between the Contracting States. It does not assign any new rights to individuals with respect to obtaining, retaining and excluding evidence; Similarly, it does not allow them to oppose the execution of a request.
Article 2
Location or identification of persons
The requested State will do everything in its power to locate or identify the persons mentioned in the application.
Article 3
Submission of documents
1. The requested State shall ensure the surrender of any judicial act or document transmitted to that effect by the requesting State.
2. Any request for the submission of a document requiring the appearance of a person before an authority in the requesting State shall be sent within a reasonable time before the date fixed for the appearance.
3. The requested State shall return as proof of the surrender, a receipt dated and signed by the recipient or a declaration signed by the agent who made the surrender, recognizing the form and date of the surrender.
Article 4
Comparison of witnesses and experts in the requesting state
1. If the requesting State considers that the personal appearance of a witness or expert before its judicial authorities is particularly necessary, it may refer to it in the request and the requested State invites that witness or expert to appear. The requested State shall immediately disclose the answer of the witness or expert to the requesting State.
2. The witness or expert is appropriately reimbursed by the requesting State for travel and residence expenses incurred to meet the request. If the witness or expert so requests, the requesting State may make an advance on travel and stay expenses; this advance may be paid by the Embassy of this State in the requested State.
3. A witness or expert who has not referred to a summons to appear whose surrender has been requested shall not be subject to any sanction or measure of constraint in the requested State, even if this quotation contains injunctions.
Article 5
Disclosure of information and objects in possession of government departments or agencies
Upon request and for the purposes of this Convention:
(a) the requested State shall provide any information and objects, including documents or records, in possession of a government administration or agency and that are accessible to the public;
(b) the requested State may communicate any information and objects, including documents or records, in the possession of a government administration or agency and that are not accessible to the public, to the same extent and to the same conditions as those applicable to its own judicial authorities or charged with the application of the law. The requested State may reject the application in whole or in part without having to justify its decision.
Article 6
Hearing of witnesses and production of documents in the requested State
1. Any person who wishes to obtain evidence is, if necessary, summoned to appear to testify or to produce objects, including documents, records or evidence, as well as if it were an instruction or procedure in the requested State.
The legal exemptions to testify specific to the laws of the requesting State will not be taken into consideration when the requests are made on the basis of this article; However, if they are invoked, the minutes will mention them.
2. The requested State shall, upon request, communicate the date and place of the witness' hearing.
3. The requested State shall authorize the presence of the accused, the counsel of the accused and any other person concerned, as mentioned in the application, upon the execution of a request.
4. The authority that executes the application shall give to any person whose presence is authorized, the opportunity to ask questions to the person whose testimony is requested. The questions will be asked according to the procedure applicable in the requested State.
Article 7
Enforcement of search and seizure requests
1. To the extent permitted by its legislation, the requested State shall comply with a request for a search or seizure, as well as for the surrender to the requesting State of all objects, including documents, records and evidence, provided that the request contains information justifying such action under the laws of the requested State. The search and seizure are carried out in accordance with the laws of the requested State.
2. The requested State may substitute the surrender of the objects provided that the requesting State gives sufficient guarantee that they will be returned to the requested State as soon as possible. Where such a condition has not been expressed, there is no obligation to return objects to the requested State. The requested State may also adjourn the surrender of objects if they are to be used as evidence in that State.
3. The rights of third parties to these objects are duly respected.
Article 8
Proof Eligibility Procedures
1. The requesting State may request that the requested State follow special procedures in the execution of an application under Articles 5, 6 or 7 to ensure the admissibility of the objects surrendered or seized; the requested State shall follow these procedures provided that they are not prohibited by its law.
2. Objects seized in Belgium are placed in the custody of the court registry after being previously inventoried. These objects are held by this registry at the disposal of the authorities of the United States of America. Upon request, the Registry shall, together with the objects submitted, provide certificates in accordance with the form annexed to this Convention that shall be prepared by any person who has been the object in his or her possession from the time of seizure.
These certificates are admitted to the United States of America as evidence of the facts mentioned therein; no other certification will be required.
3. If circumstances so require, the central authorities consult on the modalities for the specific procedures to be followed.
Article 9
Transfer to the requesting State of persons detained in the requested State
1. Any person detained in the requested State and whose presence in the requesting State is necessary for the purpose of mutual assistance provided for in this Convention shall be transferred to the requesting State provided that it consents to it and that the requested State has no reason to refuse that transfer.
2. The requested State may differ the execution of the application as long as the presence of that person is necessary in that State for the purposes of an instruction or procedure.
3. The requesting State has the power and obligation to keep the person in custody unless the requested State has ordered his release.
4. As soon as circumstances permit, unless otherwise agreed, the requesting State will hand over to the custody of the requested State any person who has not been released under § 3.
The requesting State shall not refuse to return a person transferred on the ground that that person is a national of that State.
Article 10
Transfer to the requested State of persons detained in the requesting State
1. For the purposes of mutual assistance provided for in this Convention, the requesting State may request that a person held by the requesting State be transferred to the requested State provided that such person consents to it and that the requested State does not have any reason to refuse that transfer.
2. The requested State has the power and obligation to keep that person in custody unless the requesting State has ordered his release.
3. As soon as circumstances permit, unless otherwise agreed, the requested State shall return to the custody of the requesting State any person who has not been released under § 2. The requested State shall not refuse to return the transferred person on the ground that that person is a national of that State.
Article 11
Implementation of articles 9 and 10
1. When applying sections 9 and 10:
(a) the detention in the State to which the person has been transferred shall be charged on the duration of the deprivation of liberty remaining in the other State;
(b) the transferred person may not be prosecuted, detained or subjected to any other restriction of his or her personal liberty in the State to which he or she has been transferred for acts or convictions prior to his transfer;
(c) the immunity provided in letter (b) of this section ceases when the person transferred:
(i) having had the opportunity for fifteen consecutive days to leave the State to which it was transferred, remained there; or
(ii) after leaving, returned.
2. In the event of the escape of the transferred person, the State to which that person was transferred shall take any action for his arrest.
3. Any person transferred under sections 9 or 10 shall be reappointed without recourse to the extradition procedure.
Article 12
Illicit health and restitution to victims
1. Within the limits allowed by its domestic law applicable at the time of application, each of the Contracting States undertakes to grant assistance allowing:
(a) to proceed with the location, research, capitalization, seizure and confiscation of illicitly acquired gains; and
(b) ensure the restitution of their property to victims of an offence.
2. The Central Authority of a Contracting State having reason to believe that illicit gains can be discovered in the other State, informs the Central Authority of the latter which appreciates the continuation of this information and makes known as soon as possible the measures taken.
Article 13
Limits of mutual assistance
1. The Central Authority of the requested State may refuse to comply with a request to the extent that:
(a) enforcement of the application would affect the sovereignty, security or other essential public interests of the requested State;
(b) the application is a violation of military laws that are not an offence under ordinary criminal law; or
(c) the application is not in accordance with the provisions of this Convention.
2. The requested State Central Authority may also refuse to respond to a request if it is related to a political offence.
This paragraph does not apply to offences that Contracting States may not consider as policies under any other international agreement to which they are a party.
3. If, pursuant to this article, a decision of refusal is considered, it will be preceded by a consultation between the Central Authorities for the purpose of determining what conditions mutual assistance may be granted. If the requesting State accepts the assistance under these conditions, it undertakes to respect them.
4. The Central Authority of the requested State may defer the execution of a request or act thereon only under certain conditions if the execution is in such a way as to interfere with an ongoing legal investigation or procedure in that State.
5. The Central Authority of the requested State shall inform, as soon as possible, the Central Authority of the requesting State of the ground for refusal or adjournment of the execution of the application.
Article 14
Protection of confidentiality
If the requesting State expresses its wish, the requested State shall make every effort to safeguard the confidential nature of a request and its content.
If the request cannot be complied with without infringement of the requested confidential character, the Central Authority of the requested State shall inform the Central Authority of the requesting State to which it is to decide whether the request may nevertheless be executed.
Article 15
Content of requests
1. A request for assistance specifies:
(a) the name of the authority that directs the instruction or procedure to which the application relates;
(b) the matter and nature of the instruction or procedure;
(c) a description of the information or purpose sought or of the intervention to be undertaken; and
(d) the purpose for which the information, object or intervention is requested.
2. Where necessary, and to the extent possible, the application includes:
(a) available information on the identity and location of a person to be searched;
(b) the identity and location of the consignee of a piece, its relationship with the procedure and the manner in which the delivery of the piece must be performed;
(c) the identity and location of persons who wish to obtain evidence;
(d) a description of how a testimony must be collected and transcribed;
(e) a list of questions to be answered;
(f) an exact description of where the search must take place and of the objects to be seized;
(g) a description of any particular procedure to be followed for the execution of the application; and
(h) information relating to compensation to which the witness or expert may be entitled to appear in the requesting State.
Article 16
Application and removal of objects
1. The Central Authority of the requested State shall act as soon as possible at the request or, if necessary, transmit it for execution to the competent authority which, to the extent possible, executes the request.
The judicial authorities of the requested State are competent to issue summonses to appear, search warrants or other orders necessary for the execution of the application.
2. Unless otherwise provided by this Convention, the applications shall be carried out in accordance with the domestic law and procedures of the requested State. The procedures specified in the application are followed, even if they are unusual in the requested State, provided that they are not expressly prohibited by the laws of that State.
3. The requested State may provide copies of the documents including documents, records and evidence collected pursuant to the application. At the request of the requesting State, the requested State shall provide the originals to the extent possible.
4. Without prejudice to the provisions of Article 7, the requesting State shall return as quickly as possible all the objects that have been provided in accordance with the request for assistance unless the requested State renounces them.
Article 17
Central authorities
1. Any request for assistance shall be submitted and executed through a Central Authority for each of the Contracting States. These Central Authorities communicate directly with each other for the purposes of the provisions of this Convention.
2. For the purposes of this Convention, the Central Authority shall:
(a) for the Kingdom of Belgium, the Minister of Justice, his representative or his delegate;
b) for the United States of America, the Attorney General or the representatives they have designated.
Article 18
Costs and translations
1. The requested State shall render its assistance to the requesting State without financial participation of that State except for the fees of private experts if the application authorizes the use of these experts.
2. The requesting State shall bear all expenses relating to the transfer of a detained person who has been made on the basis of articles 9 and 10.
3. If, during the execution of the application, it is clear that, in order to implement it, exceptional costs must be incurred, the Central Authorities agree on the terms and conditions under which the execution of the application can be pursued.
4. The applications set out in this Convention shall be in the English and Dutch language; However, letters of transmission from a Central Authority should not be translated.
Where applicable, the attachments to these requests are translated by the requesting State.
The translation of the documents submitted pursuant to the requests is the responsibility of the requesting State.
Article 19
Other conventions and domestic law
Mutual assistance and procedures resulting from this Convention do not impede the mutual assistance and procedures provided for by other international conventions or agreements, as well as by the domestic law and practice of the Contracting States.
Rule 20
Entry into force and denunciation
1. This Convention will be ratified. The exchange of instruments of ratification will take place in Brussels as soon as possible.
2. This Convention shall enter into force on the first day of the second month following the date of the exchange of instruments of ratification.
3. This Convention applies to offences committed both before and after its entry into force.
4. Each Contracting State may denounce this Convention by written notification to the other Contracting State. Such denunciation shall be released six months after the date of such notification.
In faith, the undersigned, duly authorized to do so, have signed this Convention.
Done in Washington, D.C. on January 28, 1988, in double copy, in the English, French and Dutch language, the three texts being equally authentic.
FORM
I undersigned (e), name . . . . .
Names . . . . .
home. .
quality or function. . . . .
certifies under penalty of criminal prosecution of the leader of false testimony or false writing,
.................................................................................................................. ..to . .
........................................................................................................................................................................................................................................................................
objects described below: .........................................................................................................................................................................................................................................................
I declare to have delivered the ........................................................................ to... . . . . . these objects in the guard of name . . . . .
Names . . . . .
home. .
quality or function. . . . .
I declare that while they were in my custody,
- these objects have not been altered (*)
- these objects have undergone the following alteration: (*)
Done the...................................................... to... .
Signature
_______
(*) Delete unnecessary mentions.
In accordance with article 20, the Convention shall enter into force on 1
er January 2000.
The Belgian instrument of ratification contains the following interpretative declarations:
« 1) Nothing in this Convention requires or authorizes legislation to be enacted or action taken by the Kingdom of Belgium in violation of its Constitution.
(2) In accordance with the right of the Kingdom of Belgium under this Convention to refuse to respond to a request insofar as the execution of the request would affect a vital public interest of the Kingdom of Belgium, the latter will not give a favourable response to a request when its central authority, after consultation with the competent authorities, has specific information that a high official who would have access to information that would be provided in accordance with this Convention, is involved in the provision of narcotics or distribution. »
The instrument of ratification of the United States of America contains the following "understandings":
« 1) Nothing in this Treaty requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States.
(2) Pursuant to the rights of the United States under this Treaty to deny requests which prejudice its essential public interests, the United States shall deny a request for assistance when the Central Authority, after consultation with all appropriate intelligence, anti-narcotic, and foreign policy agencies, has specific information that a senior government official who will have access to information to be provided under this treaty is engaged in or facilitates the production or distribution of illegal drugs. »
