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Decree No. 6282, Of 3 December 2007

Original Language Title: Decreto nº 6.282, de 3 de Dezembro de 2007

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DECREE NO. 6,282, OF December 3, 2007.

Promulga the Treaty between the Federative Republic of Brazil and the People's Republic of China on Mutual Legal Assistance in Criminal Matters, celebrated in Beijing, on May 24, 2004.

THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that gives it the art. 84, inciso IV, of the Constitution, and

Considering that the Federative Republic of Brazil and the People's Republic of China celebrated, in Beijing, on May 24, 2004, a Treaty on Mutual Legal Assistance in Criminal Matters;

Whereas the National Congress passed that Treaty through the Legislative Decree no 296, of July 12, 2006;

DECRETA:

Art. 1st The Treaty between the Federative Republic of Brazil and the People's Republic of China on Mutual Legal Assistance in Criminal Matters, celebrated in Beijing, in 24 of may 2004, apensed by copy to the present Decree, will be executed and fulfilled as entirely as it contains.

Art. 2nd are subject to the approval of the National Congress any acts that may result in revision of the said Treaty, as well as any further adjustments that, in the terms of art. 49, inciso I, of the Constitution, carries charges or gravy commitments to the national heritage.

Art. 3rd This Decree goes into effect on the date of its publication.

Brasilia, December 3, 2007; 186th of the Independence and 119th of the Republic.

LUIZ INÁCIO LULA DA SILVA

Celso Luiz Nunes Amorim

This text does not replace the one published in the DOU of 12/4/2007

TREATED BETWEEN THE FEDERATIVE REPUBLIC OF BRAZIL AND THE REPUBLIC

PEOPLE' S CHINA ON JUDICIAL ASSISTANCE

MUTUAL IN CRIMINAL MATTERS

The Federative Republic of Brazil

e

The Republic Popular from China

(henceforth denominated?Parties?),

With the purpose of promoting effective cooperation between the two countries about mutual legal assistance in criminal material on the basis of mutual respect for sovereignty and equality and mutual benefit,

Wake up the following:

ARTICLE 1

Reach of the Assistance

1. The Parties shall be obligated to provide mutual assistance, pursuant to this Treaty, in matters of investigation, inquiry, criminal action and prosecutions relating to offences of a criminal nature.

2. The assistance will include:

a) delivery of documents;

b) taken from affidavits or statements from people;

c) obtaining and provision of evaluation by experts;

d) supply of documents, records, and means of proof, including banking, financial, corporate records or business;

and) location or identification of persons, assets or means of proof;

f) conduction of judicial inspection or examination of sites and objects;

g) provision of people for supply of evidence or aid in investigations;

h) transfer of people in custody to render testimony or proofs;

i) execution of trace requests, search, immobilization and seizure;

j) disposition of products or instruments of crime;

k) notification of results of criminal proceedings and provision of criminal records and others;

l) exchange information about the legislation; and

m) any other form of assistance not prohibited by the laws of the Redear State.

3. The Parties may refuse to provide mutual legal assistance in accordance with this Article on the basis of the absence of double jeoparding. In the meantime, when judging appropriate, the Redear Party may decide to provide assistance in a discretionary manner regardless of the conduct constituting or not in offense under the internal law of the Redear State.

ARTICLE 2

Central authorities

1. Each Party shall designate a Central Authority to send and receive solicitations in observance of this Agreement. The Central Authorities shall communicate directly to the purposes stipulated in this Treaty.

2. For the Federative Republic of Brazil, the Central Authority will be the Ministry of Justice. In the case of the People's Republic of China, the Central Authority will be the Ministry of Justice.

3. Should any Party change its designated Central Authority, it should inform the other Party of the change by diplomatic channel.

ARTICLE 3

Restrictions to Assistance

1. The Required State can deny assistance if:

a) the request refers to the offense military;

b) the call for solicitation to damage its sovereignty, security, public order or other essential interests;

c) the Redear Party has already given judgment or decision final on the same person by the same related offence in the solicitation;

d) the request refer to the political offence;

and) there are substantial grounds for the Redear Part believe that the solicitation was made with a view to investigating, prosecuting, punishing, or proceeding in any other way against a person because of their race, sex, religion, nationality or political opinion, or that the position of that person may be hindered by any of those reasons; or

f) the request is not made of compliance with this Treaty.

2. The Requested Party may delay the provision of the solicitation if the request fulfils interfering in an investigation, process or any other ongoing procedure in the Redear Part.

3. Before denying assistance on the basis of the provisions of this Article, the Central Authority of the State Redear should consult with the Central Authority of the State Applicant to assess whether assistance can be provided under the conditions considered necessary. Should the State Applicant accept such conditioned assistance, such conditions should be respected.

4. Should the Central Authority of the State Redear deny or postpone the assistance, it should inform the Central Authority of the State Applicant about the reasons for denigration or postponement.

ARTICLE 4

Forma and Contents of the Requests

1. The request for assistance should be made in writing, unless the State Central Authority of the State Redear acate solicitation in another form, in urgent situations. In such a case, if the solicitation has not been made in writing, it should be the same confirmed, in writing, within fifteen days, unless the Central Authority of the State Redarling agrees that it is done otherwise.

2. The solicitation should contain the following information:

a) the name of the authority leading to investigation, the investigation, the criminal action or other procedure related to the solicitation;

b) the description of the matter and the nature of the investigation, the investigation, the criminal action or other procedures, including, the devices of the law applicable to the case to which the solicitation refers;

c) the description of the intended assistance and the purpose and relevance for which assistance is intended; and

d) the timeout within which it is desired that the request be met.

3. Where necessary and possible, the solicitation should also contain:

a) information on the identity and the location of any person (physical or legal) from whom one seeks proof;

b) information on the identity and location of a person (physical or legal) to be subpoenaed, their involvement with the process and the form of a cableable subpoena;

c) information about the identity and location of a person to be found;

d) description of the location or person to be searched and of the means of proof or assets to be blocked or apprehended;

e) description of the location or object to be inspected or examined;

f) description of the form under which any affidavit or statement should be taken and registered;

g) list of the questions to be asked to the witness;

h) description of any special procedure to be followed in the fulfilment of the request;

i) description of the need for confidentiality and its reasons;

j) information as to the cost aid and the ressaration of expenses to which the person is entitled when summoned to appear before the State Applicant; and

k) any other information that may be taken to the knowledge of the Redear State, to facilitate the fulfillment of the solicitation.

4. Should the Redear Party consider the contents of the insufficient request to allow it to deal with the solicitation, it may require additional information.

ARTICLE 5

Language

1. The solicitations and supporting documents produced in accordance with this Treaty will be accompanied by translation into the official language of the Redear Part.

2. The Requested Party may use its official language when providing assistance to the Applicant Party.

3. The Central Authorities of the Parties may communicate in English.

4. The translations referred to in this Article do not need to be sworn in.

ARTICLE 6

Fulfillment of the Requests

1. The Central Authority of the Redear State will immediately heed the solicitation in accordance with its internal law.

2. In so far as it is not contrary to its internal law, the Redear Party may meet the solicitation of the form requested by the Applicant Party.

3. The Central Authority of the Redear State shall arrange for all that is necessary for representation in the Redear Part of the Applicant Party in any procedures arising from the solicitation of assistance provided for in this Treaty.

4. The State Required shall immediately inform the State Applicant about the outcome of the call for the solicitation. Should the solicitation not be complied with, the Redear State shall inform the State Applicant of the reasons.

Article 7

Confidentiality and Restrictions on Use

1. The Requested Party will keep confidential a solicitation, including its contents, supporting documents and any measures taken in accordance with the solicitation, if requested by the Applicant Party. If the solicitation cannot be fulfilled without infringing on the confidential character, the Redear Party will inform the suit to the State Applicant who will decide whether to insist on the application.

2. The Requesting Party will keep confidential any information or evidence provided by the Redear Party, if requested by the Redear Party, or use such information or evidence only by virtue of the terms and conditions specified by the Party Required.

3. The Requesting Party shall not employ any information or proof obtained by virtue of this Treaty for any purpose other than that provided for in the solicitation, without prior consent of the Redear Part.

ARTICLE 8

Costs

1. The Requested Party shall be responsible for all the regular costs of the execution of the application in its territory, except at the following hypotheses, when such costs will run on account of the Applicant Party:

a) expense and honorary fees;

b) travel costs or other expenses related to the transportation of persons from the territory of a Party to the da another for the purpose of this Treaty; and

c) expenses of translation, interpretation and transcript.

2. The Requesting Party, if requested, shall pay in advance of the expenses, cost aid and fees with which it is to bear.

3. In case the execution of the solicitation implies costs of extraordinary character, the Parties should consult in order to determine the terms and conditions under which assistance may be provided.

ARTICLE 9

Delivery of Documents

1. The Requested Party, in accordance with its internal law and upon request, shall arrange for the delivery of the documents transmitted by the Applicant Party.

2. The Requested Party, after providing for the delivery, shall provide the Requesting Party with the delivery voucher that will include the description of the date, place and form of delivery and shall be attached the signature or seal of the authority that has delivered the document. If the delivery cannot be provided, the Applicant Party should be notified and informed of the reasons.

ARTICLE 10

Tomada de Testimony

1. The Requested Party, in accordance with its internal law and upon request, will take testimony to pass it on to the Applicant Party.

2. When the solicitation involves the transmission of documents or records, the Redear Party may transmit certified copies or photocopies. In the meantime, should the Applicant Party explicitly request the transmission of the originals, the Redear Part should meet this condition as far as possible.

3. To the extent that it is not contrary to the internal laws of the Redear Part, the documents and other materials to be passed on to the Applicant Party under this article shall be authenticated, in the terms in which it is requested, by the Party Applicant with a view to making them admissible in the face of the internal laws of the Applicant Party.

4. In so far as it is not contrary to its internal laws, the Redear Party will allow the presence of persons as specified in the solicitation during the execution of the application, and will allow such persons to ask questions, by means of the judicial authority, to the person from whom the deposition is being taken. For such purpose, the Redear Part will promptly inform the Applicant Party of the hour and place of the request execution.

ARTICLE 11

Refusal of Render Testimony

1. A person who is asked to provide testimony, pursuant to this Treaty, may refuse to do so if the internal law of the Redear Part allows the person not to provide testimony in similar circumstances in proceedings originating in the jurisdiction of the Part Required.

2. Should the person requested to provide testimony, pursuant to this Treaty, at random condition of immunity, incapacity or privilege provided for in the laws of the State Applicant, the testimony or evidence should, notwithstanding, be taken, and the claim taken to the knowledge of the Central Authority of the State Applicant, for the decision of the authorities of that State.

ARTICLE 12

Testimony and Assistance in Research in the Applicant Part

1. Where the Applicant Party requests the turnout in its territory of a person as a witness or expert, the Redear Party shall invite the person to appear before competent authority in the Applicant Party. The Requesting Party shall determine the amount of the expenses to be covered. The Central Authority of the Redear State shall immediately inform the Central Authority of the State Applicant about the response of the person.

2. The Requesting Party will pass on any solicitation for document delivery requiring the person's turnout before the authority of the Applicant Party in advance of sixty days before the scheduled date of attendance, unless that, in the event of urgency, the Central Party of the Redear Party has agreed to a shorter period of time.

ARTICLE 13

Trasside of People under Custody

1. A person in the custody of the Redear Party, whose presence in the Requesting Party is requested for assistance purposes, pursuant to this Treaty, shall be trasted from the Part Required to the Applicant Party for that purpose, should the person conspicuously be conspicuous, and if the Central Authorities of both Parties also agree.

2. A person in the custody of the Requesting Party, whose presence in the Redear Party is requested for assistance purposes, pursuant to this Treaty, may be moved from the Requesting Party to the Redear Party, should the person conspicuous, and if the Central authorities of both states also agree.

3. For the purposes of this Article:

a) the receiving Party shall have competence and obligation to maintain the person trasladed in custody, unless otherwise authorized by the sender Party;

b) a Part recipient will return the person trasladed to the custody of the sender Party as soon as the testimony is taken, or as otherwise agreed upon agreed between the Central Authorities of both Parties;

c) the receiving Party will not require the Party to sender the opening of extradition process for the person's return trasladed; and

d) the time when the person is held in custody on the receiving Party will be computed in the performance of the sentence to it imposed on the sender Part.

ARTICLE 14

Protection of Witnesses and Perths

1. Any witness or expert present in the territory of the Applicant Party shall not be investigated, prosecuted, detained, punished or subject to any other restriction of personal liberty by the Party Applicant for any acts or omissions that preceded the entry of that person into its territory, nor will it be that person obliged to provide testimony or assist in any investigation, process or procedure beyond that referred to in the application for attendance, except with the prior consent of the Central Authority of the Redear Party and that person.

2. The application of paragraph 1 of this Article basket if the person referred to herein remains in the territory of the Applicant Party for more than fifteen days after he has been officially notified that his or her presence is no longer requested or, after his or her exit, has voluntarily returned. This period, meanwhile, will not include time to which the person does not leave the territory of the Applicant Party for reasons outside their control.

3. The person who refuses to provide testimony or assist in the investigations in accordance with Articles 12 or 13 shall not be subject to any penalty or compulsory restriction of personal liberty by such refusal.

ARTICLE 15

Localization or Identification of People, Bens

or Proof Elements

The Redear State will strive to the fullest in the sense of needing the location or identity of persons, goods or evidence discriminated against in the solicitation.

ARTICLE 16

Tracking, Search, Lock, and Seizure

1. The Requested Party, to the extent that its internal laws permit, will carry out the solicitation for tracking, searching, blocking and seizure of material, articles and goods.

2. The Requested Party will provide the Requesting Party with requested information regarding the results of the execution of the solicitation, including information on the results of the tracking or search, the location and circumstance of the blocking or seizure and the subsequent custody of such materials, articles or goods.

3. The Requested Party may transmit the materials, articles or goods seized to the Requesting Party if the Applicant Party agrees to the terms and conditions for such transmission as proposed by the Redear Party.

ARTICLE 17

Devolution of Documents, Records, and Elements of

Proof of the Redear Part

At the request of the Central Authority of the Redear Part, the Applicant Party shall, as soon as possible, return to that the originals of the documents or records and evidence provided by that, in accordance with this Treaty.

ARTICLE 18

Products and Instruments of the Crime

1. The Requested Party shall, upon request, engage to determine whether any proceeds from criminal activities or instruments of crime are located within its territory and shall notify the Applicant Party of the outcome of the investigations. When making the solicitation, the Applicant Party shall inform the Party Redear the reasons for inferring that products or instruments may be deposited in the territory of the latter.

2. Once suspected crime products or instruments are found, in accordance with paragraph 1 of this Article, the Redear Part, upon request by the Applicant Party, will adopt measures to block, seize and confiscate such products or instruments in accordance with domestic law.

3. Upon request by the Requesting Party, the Redear Party may, to the extent permitted by its domestic law and in the terms and conditions agreed between the Parties, transfer the proceeds or instruments of crime in its entirety or in part, or the product of the sale of such goods, to the Applicant Party.

4. By applying this Article, the legitimate rights and interests of the Redear Party and third parties to such products or instruments shall be respected pursuant to the internal law of the Redear Party.

ARTICLE 19

Notification of Results of Procedures

in Criminal Matters

1. The Party that has made the solicitation to the other Party pursuant to this Treaty, upon request, shall inform the last of the results of the criminal procedures to which the request for assistance relates.

2. Any Party, upon request, will inform the other Party of the results of the criminal proceedings instituted against a national of the latter.

ARTICLE 20

Provide Criminal Records or Others

1. The Requested Party, upon request, shall provide the Requesting Party with the criminal background and information on an imputed sentence against the person investigated or prosecuted in criminal matters within the territory of the Applicant Party, should the person involved has been the subject of criminal proceedings in the Redear Part.

2. The Requested Party will provide the Applicant Party with copies of records, documents or information in any form available to the public that are in their possession.

3. The Requested Party may provide copies of records, documents or information in any way that is, under the guard of authorities in the Redear Part, but which are not available to the public, in the same manner and under the same conditions by which those documents if they were to have their own law enforcement, judicial or public prosecutor's authorities. The Requested Part may, at its sole discretion, deny, in whole or in part, solicitation based on this paragraph.

ARTICLE 21

Exchange of Information about the Law

The Parties, upon request, will provide each other with information on the prevailing laws or repealed laws and information on judicial practice in their respective territories related to the implementation of this Treaty.

ARTICLE 22

Authentication and Legalization

For the purpose of this Treaty, any document transmitted in accordance with its terms will not require any form of authentication or legalization unless the Treaty possesses to the contrary.

ARTICLE 23

Other Appointments

The terms of assistance and too much procedures contained in this Treaty will not constitute impediment to one Party to assist the other on the basis of devices from others applicable international agreements, or of compliance with their national laws. The Parties may also provide assistance in the terms of any Agreement, Adjustment or other fully-fit bilateral practice.

ARTICLE 24

Consultations

The The Central Authorities of the Parties shall hold consultations, where appropriate, to promote the most effective use of this Treaty. The Central Authorities may also establish agreement as to practical measures that become necessary with a view to facilitating the implementation of this Treaty.

ARTICLE 25

Solution of Controversies

Any controversy that arises from the interpretation and application of this Treaty will be resolved by means of consultation by the diplomatic channels if the Central Authorities are unable to reach an agreement.

ARTICLE 26

Application

This Treaty will be applied to any solicitation filed after the date of its entry into force, yet the acts or omissions that constitute the offence have occurred prior to that date.

ARTICLE 27

Ratification, Duration, Amendment and Denpronunciation

1. This Treaty shall be subject to ratification and shall enter into force as of the thirtieth day after the date of exchange of the instruments of ratification

2. The Parties may amend this Treaty by mutual consent and any amendment shall enter into force upon the exchange of Notes, in writing, by diplomatic channels after all domestic requirements for their duration have been fulfilled.

3. Each Party shall be able to denounce this Treaty by means of written notification to the other Party through the diplomatic channels. The complaint will produce effect on the hundredth octogésimo day after the date of the notification.

In faith than the representatives of the two Governments, duly authorized, have signed and sealed the present Treaty

Made in Beijing, on May 24, 2004, in two original exemplars, in the Portuguese, Chinese and English languages, being all texts being equally authentic. In the event of a divergence of interpretation, the text in English should prevail.

BY THE FEDERATIVE REPUBLIC

DO BRASIL

Celso Amorim

Minister of State for Foreign Relations

BY THE PEOPLE' S REPUBLIC

FROM CHINA

Li Zhaoxing

Minister for Foreign Affairs