Decree No. 6974, 7 OCTOBER 2009.
Promulgates the Treaty of judicial cooperation in criminal matters between the Federative Republic of Brazil and the Confederation of Switzerland signed at Bern, on 12 May 2004.
The PRESIDENT of the REPUBLIC, in the use of the role that gives the art. 84, section IV, of the Constitution, and whereas the Federative Republic of Brazil and the Confederation of Switzerland signed in Bern, on 12 May 2004, a Treaty of judicial cooperation in criminal matters;
Whereas the National Congress approved this Treaty by means of legislative decree in 300, of 13 July 2006;
Whereas the Treaty entered into force internationally on 27 July 2009, in accordance with paragraph 1 of article 34;
DECREES: Art. 1st Treaty of judicial cooperation in criminal matters between the Federative Republic of Brazil and the Confederation of Switzerland signed at Bern, on 12 May 2004, attached a copy to this Decree, shall be executed and delivered as fully as it contains.
Art. 2 Are subject to the approval of the National Congress any acts that may result in a revision of that Treaty, as well as any additional adjustments, pursuant to art. 49, item I, of the Constitution, result in charges or demanding commitments to national heritage.
Art. 3 this Decree shall enter into force on the date of its publication.
Brasília, October 7 2009; 188 of independence and 121 of the Republic.
LUIZ INACIO LULA DA SILVA Tarso Genro Celso Luiz Nunes Amorim TREATY of JUDICIAL COOPERATION in CRIMINAL MATTERS between the Federative Republic of Brazil and the Swiss Confederation to the Federative Republic of Brazil and the Switzerland Confederation (hereinafter Contracting State), in order to conclude a Treaty of judicial cooperation in criminal matters and to cooperate more effectively in research , pursuit and prosecution of offenses, reached the following agreement: T Í T U L I General provisions ARTICLE 1 obligation to Grant cooperation 1. The Contracting States undertake to grant each other, in accordance with the provisions of this Treaty, the broadest legal cooperation in any investigation or judicial procedure relating to offences whose prosecution is the jurisdiction of the requesting State.
2. The Contracting States shall exchange, through their central authorities, the list of the competent authorities to submit requests for legal cooperation for the purposes of this Treaty.
3. legal cooperation covers the following measures taken in favour of a prosecution in the requesting State: the taking of depositions or other) declarations;
b) delivery of documents, records and evidence, including the administrative, financial, commercial, banking and corporate;
c) restitution of goods and values;
d) exchange of information;
and search personal and home care);
f) search, seizure, and confiscation of products of hijacking;
g) subpoena of procedural acts;
h) temporary transfer of persons detained for the purpose of hearing or confrontation;
I) any other cooperation measures consistent with the purposes of this Treaty and which are acceptable by the Contracting States.
ARTICLE 2 Applicability this Treaty shall not apply to the following cases: a) search, detention or arrest of a person prosecuted or judged criminally liable in order to obtain his extradition;
b) execution of criminal judgments.
ARTICLE 3 Reasons to refuse or postpone execution of the request 1. legal cooperation may be refused: a) if the request for cooperation refer to infractions considered by the requested State as political offences or related political offenses;
b) if the request refer to military offences that do not constitute crimes of common law;
c) if the request refer to tax violations; However, the requested State may take account of a request if the investigation or procedure to target fraud in tax matters. If the request refer only in part the tax violations, the requested State may limit, in this part, the use of the information and evidence provided;
d) if the requested State deems that the execution of the request may prejudice its sovereignty, security, ordre public or other essential interests of the State, as determined by competent authority;
and if there are serious reasons) to believe that the request for cooperation was presented with the intention to prosecute or punish a person for reasons relating to their race, religion, ethnic origin, gender or political opinions, or to believe that the request would jeopardize the person for any of the reasons retromencionadas;
f) if there are serious reasons to believe that the criminal proceedings against the person rendered does not respect the guarantees laid down in international instruments of human rights protection, particularly the International Covenant on Civil and political rights, of 16 December 1966.
2. The requested State may postpone the execution of legal cooperation request harm an ongoing criminal proceedings in this State.
3. Before refusing or postponing co-operation as this article, the requested State: a) shall immediately inform the requesting State about the reason that leads you to refuse or postpone the legal cooperation, and (b)) shall inform the requesting State the conditions under which assistance may be provided, which, if accepted, should be respected.
4. Any refusal of legal cooperation, total or partial, shall be grounded.
ARTICLE 4 of Ne Bis in Idem 1. legal cooperation will be refused if the request seeks facts on which the person prosecuted was definitely on the substance, acquitted or convicted, in the requested State for an offence essentially corresponding, since eventually imposed sanction is in the implementation phase or have already been executed.
but the legal cooperation 2.No may be granted: a) If the facts referred to in judgment were made, in whole or in part, in the territory of the requesting State, unless, in the latter case, have been committed also in part in the territory of the requested State;
b) If the facts referred to by the judgment constitute offence against the security or other essential interests of the requesting State;
c) If the facts referred to by the judgment were committed by an official of the requesting State with violation of their functional duties.
3.De anyway, paragraph 1 shall not apply if: a) the open procedure in the requesting State is not directed only against the person concerned by paragraph 1; or (b)) the execution of demand have the aim to clear it.
T I T U L II requests for Legal Cooperation ARTICLE 5 applicable law 1. The request is executed according to the law of the requested State.
2.Se the claimant State a specific procedure to be applied in the execution of the request for legal cooperation, you should request it expressly; the requested State will, if not contrary to its law.
ARTICLE 6 Coercive Measures the execution of request involving measures of coercion may be refused if the facts described herein do not correspond to the elements of an offence established goals by the law of the requested State, assuming it has been committed in this State.
ARTICLE 7 provisional measures 1. At the express request of the requesting State and if the procedure endorsed by the application does not appear manifestly inadmissible or inappropriate under the law of the requested State, precautionary measures shall be ordered by the competent authority of the requested State, in order to maintain an existing situation, protecting threatened legal interests or preserving evidence.
2. When there is danger in delay and if the information provided permits to examine whether the conditions for granting interim measures were fulfilled, these measures could also be ordered since the announcement of a request. The precautionary measures shall be repealed if the requesting State does not submit the request for legal cooperation within determined for this purpose.
ARTICLE 8 presence of Persons participating in the 1.Se Procedure the requesting State expressly so requests, the Central Authority of the requested State shall inform about the date and place of execution of the request for legal cooperation.
2. The requested State shall authorise, at the request of the requesting State, the representatives of the authorities of the latter and the people who participate in the procedure, as well as their lawyers, to be present at the execution of the request in its territory.
3. Such persons may, as provided for in paragraph 1, be allowed in particular to formulate questions and consult the record. They may also suggest to the authorities of the requested State, the wording of questions or additional measures.
4. This presence can not have as a consequence that the sensitive facts are brought to the attention of these people before the competent authority has decided by the granting and extension of cooperation.
ARTICLE 9 testimony of witnesses in the requested State 1.As witnesses will be heard as the law of the requested State. However, they can also refuse to testify, if the law of the requesting State.
2.Se the refusal to testify be based on the law of the requesting State, the record will be forwarded by the requested State for decision, which must be substantiated.
3. The witness who avail themselves of the right to refuse to testify may not suffer any legal sanction for this reason in the requesting State.
ARTICLE 10 delivery of documents, Records or evidence 1. The requested State shall deliver to the requesting State, at its request, objects, documents, records or evidence.
2. The requested State may provide copies of the documents, records or evidence requested. If the requesting State expressly part sending of documents, the requested State will answer the request, as far as possible.
3. The requesting State shall have the obligation to return the originals of those pieces as soon as possible, at the latest by the end of the procedure, unless the State Required them to resign.
4. the rights invoked by third parties about objects, documents, records or evidence in the requested State do not prevent their delivery to the requesting State.
ARTICLE 11 Legal Proceedings or investigation 1. If requested, the requested State shall make available to the authorities of the requesting State their selves or research, including the judgments and decisions, if those pieces are important to a judicial procedure or investigation.
2.As parts, autos and means of evidence will only be delivered if they relate exclusively to a closed procedure or, if not, to the extent considered allowable by the Central Authority of the requested State.
ARTICLE 12 Restitution of goods and values 1. The goods and values that constitute products of crime committed and prosecuted in the requesting State, and have been seized by the requested State, as well as the replacement goods whose value corresponds to those products, may also be returned to the requesting State for the purpose of confiscation, enshrined the rights invoked by a third party in good faith about those goods and values.
2. the refund will occur, as a general rule, based on final and enforceable decision of the requesting State; However, the requested State shall be given the opportunity to return in previous stage of the procedure.
ARTICLE 13 Use Restricted 1.As information, documents or objects obtained through legal cooperation may not, in the requesting State, be used in investigations, or be produced as evidence in any criminal proceedings for an offence in respect of which the legal cooperation cannot be granted.
2. Any other use is subject to the prior approval of the Central Authority of the requested State. This approval is not required when: a) the facts that originated the request represent another offence in respect of which the legal cooperation can be granted;
b) criminal proceedings abroad is brought against others who participated in the offence; or c) the material is used for an investigation or procedure that refers to the payment of compensation related to the procedure for which legal cooperation was granted.
T I T U L the III and ARTICLE 14 Attendance Subpoena Subpoena of Procedural Acts and judicial decisions 1. The requested State shall carry out, in accordance with its legislation, the subpoena of the procedural acts and judicial decisions that are sent, for this purpose, by the requesting State.
2. This subpoena may be accomplished through simple dispatch of the Act or decision to the addressee. If the requesting State expressly so requests, the requested State will effect the second summons one of the ways provided for in their legislation for similar communications or special form consistent with this legislation.
3. evidence of the summons will be made by means of a receipt dated and signed by the recipient, or the requested State declaration stating the fact, the form and the date of the summons. Any of these documents will be immediately transmitted to the requesting State. The request, the requested State shall specify if the subpoena was made as their right. If there is a possibility of subpoena, the requested State will immediately cause the Applicant State Science.
4. The request of subpoena for the attendance of a person that is processed in the requested State should reach the Central Authority of that State at least 45 (45) days before the date fixed for the attendance.
ARTICLE 15 attendance of witnesses or experts to the requesting State 1.Se the requesting State judge that the personal attendance of a witness or expert before its competent authorities is particularly necessary, he must mention it in the application for summons and the requested State shall invite the witness or expert to appear before the requesting State.
2. The recipient will be invited to respond to the subpoena. The requested State shall give notice of the recipient's response to the requesting State without delay.
ARTICLE 16 The Compensation claims, as well as travel expenses and of stay shall be paid by the requesting State to the witness or expert, calculated from the place of their residence and granted according to values at least equal to those provided for in the tariffs and regulations in force in the country where the audience must happen.
ARTICLE 17 lack of Attendance the witness or expert, summoned, fails to appear, should not suffer any sanctions or coercive measures, even if imposed on subpoena, unless subsequently enter voluntarily in the territory of the requesting State and there is again regularly summoned.
ARTICLE 18 transit 1. Any witness or expert, whatever their nationality, who, as a result of a subpoena to appear before the competent authorities of the requesting State may be prosecuted, detained or subjected to any other restriction of his personal liberty in the territory of that State for facts or convictions prior to his departure from the territory of the requested State.
2. Any person, whatever his nationality, summoned to appear before the competent authorities of the requesting State to account for facts for which is processed, you will be able to undergo the process, detention or any other restriction of his personal freedom by facts or convictions prior to his departure from the territory of the requested State and not covered by the subpoena.
3. The protection provided for in this article shall cease when the person benefited, nevertheless has had an opportunity to leave the territory of the requesting State, during 30 (thirty) consecutive days after his presence was no longer necessary, remained in the territory or he returned after having left it.
ARTICLE 19 Testimony in the requesting State 1. The person you report to the requesting State as a result of subpoena cannot be forced to testify or produce evidence when the right of a Contracting State allowing it to refuse to do so.
2. articles 9, paragraphs 2 and 3, and 13, paragraph 1, apply to this article, what fits.
ARTICLE 20 temporary transfer of persons detained 1. Any person arrested, whose personal attendance as a witness or for the purposes of confrontation, is requested by the requesting State, be temporarily transferred to the territory of the State where the audience must happen, provided your referral within the time limit indicated by the requested State, without prejudice to the provisions of article 18, to the extent that they may be applied.
2. The transfer may be refused: a) if the person arrested does not allow;
b) if his presence is necessary at criminal proceedings pending in the territory of the requested State;
c) if the transfer can extend his detention, or d) if other compelling considerations contrary to its transfer to the requesting State.
3. The person transferred shall remain detained on the territory of the requesting State, unless the requested State ask her to be released.
4. The time at which the person is being held outside the territory of the requested State will be computed for the purposes of pre-trial detention or penalty enforcement.
ARTICLE 21 Hearing by video conference 1.Se a person who is in the territory of the requested State has to be heard as a witness or expert before the competent authorities of the requesting State, the latter may request, if inappropriate or impossible the personal attendance in its territory, the holding of the hearing through video conference.
2. The requested State shall have the right to agree to the holding of the hearing by video conference. If you agree, the hearing shall be governed by the provisions of this article.
3. Requests for hearing by videoconference shall contain, in addition to the information referred to in article 24, the reason why it is not desirable or not possible that the witness or the expert report in person to the hearing, the name of the competent authority and of the people who will lead the hearing.
4. The competent authority of the requested State will require attendance for the person to be heard as his right.
5.As following rules apply to the hearing by video conference:
the hearing will take place in the presence) of the competent authority of the requested State, if necessary assisted by an interpreter. This authority will also be responsible for identifying the person heard and respect for the fundamental principles of the law of the requested State. If the competent authority of the requested State deems that the fundamental principles of the law of the requested State are not being respected during the hearing, it shall immediately take the necessary measures to ensure the continuation of the hearing in accordance with those principles;
b) the competent authorities of the requesting and requested States shall agree, if applicable, the measures relating to the protection of the person to be heard;
c) the hearing will be held directly by the competent authority of the requesting State, or under his direction, according to its national law;
d) at the request of the requesting State or the person to be heard, the requested State shall ensure that this person is assisted by an interpreter, if necessary;
and) the person to be heard may invoke his right not to testify which would be recognized by the law of the requested State or the requesting State.
6. Without prejudice to the agreed measures concerning the protection of persons, the competent authority of the requested State shall, after the close of the hearing, an ata indicating the date and place of the hearing, the identity of the person heard, the identities and qualifications of other persons in the requested State who participated in the hearing, any oaths and commitments or the technical conditions under which the hearing took place. This document will be transmitted by the competent authority of the requested State to the Requesting State's competent authority.
7. Each Contracting State shall take the measures necessary to ensure that, where witnesses or experts are heard in its territory in accordance with this article and refuse to testify, if required to do so, or provide false testimony, national law is applied in the same way as if the hearing had occurred under a national procedure.
8. The Contracting States may, if they wish, also apply the provisions of this article, if appropriate and with the agreement of their competent authorities, to hearings by video conference which participates the person prosecuted or investigated under criminal law. In this case, the decision to hold the Conference and their development should be subject to agreement between the Contracting States and conform to its national law and the international instruments in force, in particular the International Covenant on Civil and political rights, of 16 December 1966. The ratings of which participates the person prosecuted or investigated under criminal law can only occur with your consent.
T Í T U L IV criminal records and exchange of information on Convictions ARTICLE 22 criminal records and exchange of information on Convictions 1. The requested State shall provide to the requesting State, to the extent that their own authorities could get them in a similar case, the extracts of criminal record and any information relating to such records as may be requested by the requesting State to meet the needs of a criminal procedure.
2. In cases other than those referred to in paragraph 1 of this article, the requests will be met in accordance with the legislation, regulations or practice of the requested State.
3.Ao least once a year, each of the Contracting States shall provide to the other State reports on criminal sentences and subsequent measures relating to nationals of that State who were entered in the criminal record.
T Í T U L V Procedure ARTICLE 23 central authorities 1. For the purposes of this Treaty, the central authorities are, for Brazil, the National Secretariat of Justice of the Ministry of Justice, and to Switzerland, the Federal Justice Department of the Federal Ministry of Justice and police, by means of which will be presented and received requests for legal cooperation of its courts and its authorities.
2.As the central authorities of the Contracting States shall communicate directly with each other. The course through the diplomatic channel may, however, be used, if necessary.
24 ARTICLE 1 content of the application. the application of legal cooperation must contain the following information: a) the name of the authority making the request and, if applicable, the authority responsible for criminal proceedings in the requesting State;
b) object and the reason for the request;
c) to the extent possible, the full name, place and date of birth, nationality, affiliation and address of the persons referred to in criminal procedure at the time of submission of the application;
d) the main reason why the evidence or information is required, as well as a description of the facts (date, place and circumstances in which the offence was committed) that gave rise to investigations in the requesting State, unless it is a request for subpoena pursuant to article 14.
2. the application also contains: a) in article 5, paragraph hypothesis 2, the text of the legal provisions applicable in the requesting State and the reason for its application;
b) in the case of participation of persons referred to in article 8, paragraph 2, the designation of such persons and the reason for his presence;
c) in the event of a subpoena the witnesses or experts (article 15), the indication that the requesting State shall bear the costs of travel and stay as compensation;
d) in the case of a temporary transfer of detainees (article 20), their names;
and) in case of hearing by video conference (article 21), why it is inappropriate or impossible to witness or expert to attend, as well as the names of the competent authority and of the people who will lead the hearing.
ARTICLE 25 implementation of the Request 1.Se the request for legal cooperation is not in accordance with the provisions of this Treaty, the Central Authority of the requested State shall promptly inform the Central Authority of the requesting State, asking him to modify or complete. The request, by the requested State, to modify or complete the request for legal cooperation shall not prejudice any measures adopted on the basis of article 7.
2.Se the request appears to be in accordance with the Treaty, the Central Authority of the requested State shall forward it immediately to the competent authority for execution.
3. After the execution of the request, the competent authority shall return it to the Central Authority of the requested State, accompanied by the information and evidence obtained. The Central Authority will ensure the full and faithful implementation and shall communicate the results to the Central Authority of the requesting State.
4. Paragraph 3 does not prevent partial execution of the request for legal cooperation.
ARTICLE 26 waiver of Legalization, authentication, and other formalities 1. documents, records, statements or evidence forwarded pursuant to this Treaty shall be exempt from legalization, authentication, and other formalities.
2. The documents, records, statements or evidence sent by the Central Authority of the requested State shall be accepted as evidence without further formalities or certificate of authenticity.
3. The Office of Central Authority forwarding guarantees the authenticity of the documents transmitted.
ARTICLE 27 Language 1. Requests for judicial cooperation, as well as its annexes shall be drawn up in the language of the requesting State and accompanied by a translation into the language of the requested State indicated in each case by the Central Authority.
2. the requesting State a translation of the documents prepared or obtained in connection with the execution of the request.
ARTICLE 28 costs related to the execution of the request 1. The requesting State shall bear, on the request of the requested State, with only the following costs of executing a request: a) compensation, travel and stay of witnesses;
b) expenses relating to the transport of detainees;
c) fees, travel costs and stay of experts;
d) connection establishment costs for video conferencing, as well as the costs of its availability in the requested State, the remuneration of interpreters provides and the reparations paid to witnesses, as well as their spending to offset in the requested State, unless the Contracting States agree otherwise.
2.Se be apparent that the execution of the request will cause extraordinary expenses, the requested State shall notify this fact to the requesting State in order to determine the conditions that will be subject to execution of the request.
T Í T U L saw Spontaneous Forwarding and News for processes and Confiscation ARTICLE 29 Spontaneous Forwarding of evidence and Information 1. Through the central authorities, and within the limits of its domestic law, the competent authorities of each Contracting State may, without an application was lodged in this sense, Exchange information and evidence involving criminally punishable facts If you evaluate this referral may allow the other Contracting State: a) lodge a petition for judicial cooperation pursuant to this Treaty;
b) start criminal proceedings;
c) or facilitate the development of an ongoing criminal investigation.
2. The competent authority which provide information on the basis of this article may, in accordance with its national law, to condition the use of such information. The conditions should be respected.
ARTICLE 30 news for process Purposes and confiscation 1. Any notice directed by a Contracting State with a view to establishing a criminal procedure in the courts of another Contracting State or confiscation of property crimes, products will be object of communication between central authorities.
2. The Central Authority of the requested State shall inform about the continuity given this news and shall, if applicable, copy of the adopted decision.
3.As provisions of article 26 shall apply to the news provided for in this article.
ARTICLE 31 Translation spontaneous forwarding of evidence and information, as well as the news will be translated pursuant to article 27. The documents and evidence attached to a spontaneous transmission of evidence and information, as well as a story, are dismissed.
T Í T U L VII final provisions article 32 other agreements or adjustments 1.As provisions of this Treaty shall not preclude a broader legal cooperation that has been, or will be agreed between the Contracting States in other agreements or adjustments, or arising out of its national law.
2. Repealing article XVII of the extradition treaty between Brazil and Switzerland.
ARTICLE 33 dispute settlement 1.As disputes between Contracting States concerning the interpretation or application of the provisions of this Treaty shall be settled through diplomatic channels.
2.Se the Contracting States fail to reach a solution in the first twelve months of the emergence of the controversy, this will be submitted, at the request of one or the other Contracting State, to an arbitral tribunal composed of three members. Each Contracting State shall appoint an arbitrator. Both arbitrators so appointed shall appoint a Chairman, who shall be a national of a third State.
3.Se a Contracting State does not appoint its arbitrator, nor answer the invitation made by the other Contracting State to be held in less than two months this designation, the arbitrator shall be appointed, at the request of the Contracting State, by the President of the International Court of Justice.
4.Se the two arbitrators are unable to reach an agreement as to the choice of the President in two months after his appointment, this shall be appointed, at the request of one or the other Contracting State, by the President of the International Court of Justice.
5.Se, in the cases referred to in paragraphs 3 and 4 of this article, the President of the International Court of Justice is prevented from exercising its mandate, or if he is a national of a Contracting State, the appointments shall be made by the Vice President and, if this is prevented or is a national of one of the Contracting States in question, appointments will be made by the oldest Member of the Court , as long as it's not in any of the Contracting States national.
6. Unless the Contracting States to decide to proceed otherwise, the arbitral tribunal shall determine its own rules of procedure.
7.As decisions of the arbitral tribunal shall be final and binding on the Contracting States.
ARTICLE 34 entry into force and termination 1. this Treaty shall enter into force on the 60th day after the date on which the Contracting States if notified each other about the fulfilment of their constitutional procedures necessary for this purpose.
2. Either Contracting State may terminate this Treaty at any time, transmitting to the other Contracting State, through diplomatic channels, a written communication. The denunciation shall take effect six months after the date of receipt of the communication. The complaint does not reach the cases of ongoing legal cooperation.
In witness whereof the undersigned, being duly authorized by their respective Governments, have signed this Treaty.
Done at Bern, Switzerland, on 12 May 2004, in duplicate, in Portuguese and in French, both texts are equally authentic.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ by the FEDERATIVE REPUBLIC OF BRAZIL, MARCIO THOMAZ BASTOS Minister of Justice _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ by the SWISS Justice Minister CHRISTOPH BLOCHER