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Decree Nº 3,988, Of 29 October 2001

Original Language Title: Decreto nº 3.988, de 29 de Outubro de 2001

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DECREE NO. 3,988, OF October 29, 2001-1ª PART

Promults the Legal Assistance Agreement in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the Republic of Peru, concluded in Lima, on July 21, 1999.

THE VICE PRESIDENT OF THE REPUBLIC, in the exercise of the post of President of the Republic, using the assignment that confers you the art. 84, inciso VIII, of the Constitution,

Considering that the Government of the Federative Republic of Brazil and the Government of the Republic of Peru celebrated, in Lima on July 21, 1999, a Legal Assistance Agreement in Criminal Matters;

Whereas the National Congress has approved this Agreement through Legislative Decree No. 181 of June 7, 2001;

Whereas the Agreement entered into force on August 24, 2001, pursuant to of paragraph 1º of its Article 26;

D E C R E T A:

Art. 1º The Legal Assistance Agreement in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the Republic of Peru, concluded in Lima, on July 21, 1999, apensed by copy to the present Decree, will be executed and fulfilled as entirely as it contains.

Art. 2º Are subject to the approval of the National Congress any acts that may result in revision of the said Agreement, as well as any supplementary adjustments which, pursuant to art. 49, inciso I, of the Federal Constitution, carries gravy charges or commitments to the national heritage.

Art. 3º This Decree takes effect on the date of its publication.

Brasilia, October 29 of 2001; 180º of Independence and 113º of the Republic.

MARCO ANTONIO DE OLIVEIRA MACIEL

Luiz Felipe de Seixas Corrêa

Agreement of Legal Assistance in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the Republic of Peru

The Government Of The Federative Republic Of Brazil

and

The Government Of The Republic Of Peru

(Forward Denominated As?Parties?),

Animated by the purpose of stepping up legal assistance and cooperation in criminal matters;

Recognizing that the fight against delinquency requires acting joint of the States;

Convened from the need to develop joint actions for the prevention, control and sanction of the offence in all its forms, through the coordination and implementation of concrete programs, and to expedite the legal aid mechanisms;

Consent that the increment of the delightful activities makes it necessary to strengthen the mechanisms for cooperation and legal assistance in criminal matters;

Wake up:

Title I

General provisions

Article 1

Definitions

For the effects of this Agreement:

a)? forfeiture? means the deprivation, in definite character, of goods or instruments of the offence, by a decision of a court or other competent authority;

b)? product of the offence? means goods, or values equivalent to the same, of any nature, derived or obtained directly or indirectly from the practice of an offence;

c)? goods? means assets of any kind, tangible or intangible, mobile or real estate, tangible or intangible, and the legal documents or instruments that attest to the property or other rights on such assets;

d)? hijacking, arrest, unavailability or seizure of goods? means the temporary prohibition of transferring, converting, alienating or mobilizing goods, as well as the custody and temporary control of goods, by order expedited by a court or competent authority.

Article 2

Mutual Assistance obligation

1. The Parties shall be obligated to provide mutual assistance, as per the devices of this Agreement and their respective legal ordinances for the conduct of criminal investigations, prosecutions and procedures, instituted by facts whose knowledge corresponds to the competent authorities of the requesting Party.

2. Assistance will be provided even when the fact that gives you reason in the requesting Party does not constitute an offence in the requested Party.

3. For the execution of search warrants of persons and records, confiscations, unavailability of goods, of kidnapping with end of proof and telephone interception by duly motivated court order, as well as for the execution of measures involving some kind of coercion, assistance will be provided only when the fact that gives you reason in the requesting Party is provided for as an offence also in the legislation of the requested Party, or when the person involved in the request for assistance has manifested freely its consent in a written form.

Article 3

Scope

1. The Parties shall, in accordance with their legislation, provide mutual assistance in relation to exchange of information, evidence, processing and too much criminal proceedings. Assistance will understand, among others:

a) location and identification of persons and goods;

b) notification of judicial acts;

c) delivery of documents and judicial information;

d) search and seizure warrants and judicial inspections;

e) testimonials of witnesses and interrogation of accused;

f) citation and voluntary attendance of persons, in the quality of accused persons, witnesses or experts;

g) voluntary attendance of persons arrested to provide testimony in the territory of the requesting Party;

h) unavailability, kidnapping, arrest or forfeiture of goods, inclusive of the lifting of bank secrecy;

i) any other form of assistance, in accordance with the legislation of the requested Party.

2. The Parties shall facilitate the admission and presence, in the territory of the requested Party, of competent authorities of the requesting Party to assist and participate in the procedures requested, where this does not contravenes the provisions of its legislation. The employees of the requesting Party shall act in accordance with what is authorized by the competent authorities of the requested Party.

Article 4

Limitations to Assistance

1. The requesting Party shall not use any information or proof obtained pursuant to this Agreement for purposes other than those stated in the request for legal assistance, without prior permission from the requested Party.

2. This Agreement shall not provide for the Parties to perform, in the territory of the Party where the representations are carried out, the functions reserved exclusively to the authorities of this Party, pursuant to their internal legislation.

3. This Agreement will not apply to:

a) arrest of persons for extradition, nor to requests for extradition;

b) the transfer of convicted persons for prosecution of criminal sentence;

c) assistance to private individuals or to third parties states.

Article 5

Conditioned Assistance

1. The competent authority of the requested Party, if it considers that the fulfillment of a solicitation may create an obstacle to some investigation or criminal procedure that is ongoing in its territory, may delay its compliance or condition it to the form that it deems necessary.

2. The Central Authority of the requested Party shall give notice to the Central Authority of the applicant Party of the exposed Party in the preceding paragraph so that this shall accept the conditional assistance, in which case it shall comply with the conditions set forth.

3. Where a request for legal assistance cannot be complied with, partially or fully, the requested Party shall communicate to the requesting Party, with express mention of the reasons or causes of the lack of compliance, and the requested Party shall decide whether insists or not on the solicitation.

Article 6

Assistance Denegation

1. The requested Party may deny assistance when:

a) the solicitation of legal assistance is contrary to its legal planning, or is not provided for in the provisions of this Agreement;

b) consider that the fulfilchment of the solicitation may create obstacle to an ongoing criminal investigation or prosecution in the requested Party, ressaving the provisions of Article 5 of this Agreement;

c) the solicitation of legal assistance is related to an offence under which the person has been permanently exonerated of criminal liability or, if convicted, the penalty has been fulfilled or declared extinguished;

d) the investigation has been initiated to prosecute or discriminate, in any form, person or group, by reason of race, sex, social condition, nationality, religion, ideology or any other form of discrimination;

and) the granting of assistance may affect public order, sovereignty, national security or the essential public interests of the requested Party;

f) the solicitation of legal assistance refers to political, military or connext-related offence.

2. The denigration of the assistance will be substantiated and informed in writing to the requesting Party.

Article 7

Central Authority

1. For the purposes of this Agreement, the Central Authority in the Federative Republic of Brazil will be the Ministry of Justice and in the Republic of Peru will be the Public Prosecutor's Office.

2. The Central Authority of the requested Party shall meet the solicitations with brevity and, where cableable, shall transmit them for execution by the competent authorities.

3. The requests will be forwarded via diplomatic track.

4. The Central Authorities will be able to communicate directly.

Title II

Obtaining the Elements of Proof

Article 8

Applicable law

1. The requests will be complied with in accordance with the legislation of the requested Party.

2. The requested Party shall be able to provide legal assistance in accordance with the special forms and procedures indicated in the requesting Party's request, unless they are incompatible with their legislation.

Article 9

Confidentiality

1. The requested Party shall keep under reservation the request for legal assistance, unless the lifting of this reservation is necessary for the fulfilment of the order.

2. If the lifting of the reservation is necessary for the fulfilment of the application, the requested Party shall request approval from the requesting Party, upon written communication, without which it will not meet the solicitation.

3. The requesting Party shall hold reservation on the evidence and information provided by the requested Party, unless the lifting of the reservation is necessary for the investigation or constant procedure in the solicitation.

Article 10

Turnout before the Requesting Party

1. The request for legal assistance sent to the authorities of the requested Party for the attendance of an accused, witness or expert before the competent authorities of the requesting Party is to be forwarded by the Central Party Authority applicant in advance of at least 45 (forty five) days of the date fixed for the performance of the object's due diligence. If not, the Central Authority of the requested Party shall return the solicitation to the requesting Party. The Central Authority of the requested Party shall, however, be able to request, in writing, the extension of the time limit to the requesting Party.

2. The competent authority of the requested Party shall record in writing the consent of the person whose turnout is requested in the requesting State and shall immediately inform the Central Authority of the requesting Party about the response.

3. The competent authority of the requested Party shall make the notification under the request formulated, without which it can produce any cominatory clauses or penalties provided for in the legislation of the requesting Party for the non-attendance hypothesis.

4. The request for legal assistance should mention the value of the passages, daily, fees and indemniations that may come to notice the notified person on the grounds of its trasside. The person invited, accused, witness or expert shall be informed of the type and amount of the spending that the requesting Party has agreed to pay him.

5. The person who comparisons to the territory of the requesting Party to comply with a request for assistance will be subject to the provisions of that Party's legal planning.

Article 11

Immunity Regarding Turnout

1. No witness or expert, of any nationality, who will appear before the judicial authorities of the requesting Party, shall be persecuted, detained or subjected to any restriction of individual freedom in the territory of this Party by facts or convictions prior to its exit from the territory of the requested Party.

2. A person of any nationality who will appear before the competent authorities of the requesting Party to answer for facts related to a proceeding shall not be prosecuted, detained or subjected to any other restriction of freedom by personnel by facts or convictions prior to their exit from the territory of the requested Party.

3. The immunity regarding the attendance provided for in this Article shall cease to take effect when the person, having the possibility of abandoning the territory of the requesting Party for 15 (fifteen) days, from the time his or her presence is not more necessary, remain in the territory of that Party or to it regress, save by reason of force majeany or fortuitous case.

Article 12

Temporary Trasside of the Detained Person

1. The person detained in the requested Party who manifests, in writing, his / her consent to appear to the requesting Party to testify or for any other need of the proceedings, shall temporarily traspart to the requesting Party, ensuring its return to the requested Party at the time specified by that Party and in accordance with the provisions of Article 11.

2. The offside of the detained person may be denigrated if:

a) his presence is required in an ongoing criminal proceedings in the territory of the requested Party;

b) the trasside entails in the extension of his detention, or

c) there are other exceptional circumstances that prevent its trasside to the requesting Party.

3. The person trasladed shall remain held in the territory of the requesting Party by the time limit determined by the judicial authority of the requested Party.

Article 13

Provisional or Cautelary Measures

1. Without prejudice to the provisions of Article 2 and in accordance with that provided for in this Article, the competent authority of one of the Parties may request the other to obtain a court order to make it unavailable, to abduct, arrest or block goods in order of ensuring that they are available for the execution of a forfeiture order.

2. An application effected by virtue of this Article should contain:

a) a copy of the court order determining the unavailability, the hijacking, arrest or the blocking of the goods;

b) a summary of the facts, including one described of the offence, where and when it was committed, with reference to the relevant legal devices;

c) if possible, a description of the goods and of their commercial value, to which it is intended to adopt the provisional measure or cautionary or that it is considered that they may be unmade, hijacked, arrested or blocked and the relationship of the same with the person against whom a judicial procedure will be initiated or tramline.

d) a statement of the amount to be made unavailable, hijacking, arresting or blocking and the fundamentals of calculating the same;

and) the estimation of the time to be transcurring until the case is submitted to judgment and the time it will transact up to the definitive judicial decision.

3. Shall the competent authority of the requesting Party inform, by request of the competent authority of the requested Party, any modification within the period referred to in the letter? e? of the preceding paragraph and, in doing so, shall indicate the procedure step until then achieved.

4. The competent authorities of each of the Parties shall inform about the interposition of any appeal or of a decision adopted regarding the unavailability, hijacking, arrest or blocking requested or adopted.

5. The competent authority of the requested Party may impose a condition that restricts the duration of the requested measure, which shall be informed to the competent authority of the requesting Party, with due justification.

6. Any application should be executed solely in accordance with the internal legislation of the requested Party and, in particular, with observance and warranty of the rights of any person who may be struck by the execution of the measure.

Article 14

Delivery of Documents, Expedients, or Proof Elements

1. The requested Party will be able to deliver copy of the documents, expedients or evidence requested. If the requesting Party expressly requests the delivery of the originals, the requested Party shall attend to the request as far as possible.

2. The requesting Party obliges itself to return the originals of the documents as soon as possible or at most at the end of the process, unless the Party required for this renounce.

3. The rights relied upon by third parties on documents, expedients or evidence in the requested Party shall not prevent the delivery of certified copy to the requesting Party.

Article 15

Products from Delito

1. The competent authorities of the requested Party, upon request for legal assistance, will give course to the enquiries, within the framework of their jurisdiction, that allow to identify the existence of any product or instrument of an offence and shall notify the results or the researches to the competent authorities of the requesting Party through the Central Authorities. When effecing the application, the requesting Party shall notify the requested Party of the facts by which it judges that the products or instruments of the offence may find themselves in its jurisdiction.

2. Where, in fulfilment of the provisions of paragraph 1, find the products or instruments of the offence object of the request for legal assistance, the requested Party, at the request of the requesting Party, shall take the necessary measures permitted in its legislation to prevent any transaction, transfer or disposal of the same while pending a definitive decision on such products or instruments.

3. Where the convict holds the property or possession of the products or instruments of the offence and in the sentence if it imposes a pecuniary obligation, or if ordering the forfeiture of a good, or if it imposes any other measure of definitive character, the Party required may carry out the sentence provided that your internal legislation allows it.

4. Where the convict has disposed of the products or instruments of the offence, the competent authority of the requested Party, by request of the competent authority of the requesting Party, shall determine whether third party has obtained them without having knowledge or suspicion of that it was treated or could have been treated with products or instruments of the offence. Should the competent authority of the requested Party determine that the third party has not acted in good faith, it shall order the forfeiture of the goods.

Article 16

Execution of Confisco Orders

1.Should the solicitation of assistance refer to an order of forfeiture, the competent authority of the requested Party may, without prejudice to the provisions of Article 2:

a) carry out the confiscation order issued by a competent authority of the requesting Party relating to the instruments or products of the offence; or

b) initiate a procedure to obtain a forfeiture order, pursuant to its domestic law.

2.Sem prejudice to the provisions of the Article 20, for the purposes of this Article, the solicitation should include:

a) copy of the forfeiture order, duly authenticated by the judicial officer who has expedited it;

b) information on the evidence that blurt the confiscation order;

c) information indicating that the sentence is duly enforceable;

d) when it is the case, the identification of the available goods for execution or goods in respect of which if requests legal assistance, stating the existing relationship between those goods and the person against whom the forfeiture order was expedited;

and) when it is proceeded and known, the information on the existence of a background relating to the legitimate rights or interests of third persons on the subject goods of the solicitation;

f) any other information that may assist the execution of the legal aid request.

3. Where the internal legislation of the requested Party does not allow the execution of a solicitation in its entirety, this Party may abide by it to the extent that it is possible, communicating such a fact to the Central Authority of the requesting Party.

4. The competent authority of the requested Party will be able to request additional information or evidence to meet the solicitation.

5. The forfeiture order shall be executed pursuant to the internal legislation of the requested Party and in particular with observance of the rights of any person who may be attained by its execution.

6. The Parties will be able to agree on each particular case, according to the nature and importance of the collaboration provided, the division of the goods or proceeds of its sale obtained as a result of the fulfillment of the solicitation by the Party required in the fulfillment of this Article.

Article 17

Third Party Interests of Good Faith over the Bens

1. As provided for in this Agreement, the competent authorities of the requested Party shall, in the terms of their legislation, take the necessary measures to protect the interests and rights of third persons in good faith on the goods achieved by the service of legal assistance requests.

2. Any person struck by an order of unavailability, kidnapping, harshing, blocking or forfeiture of goods will be able to interpose the resources provided for in the internal legislation of the Party required before the competent authority.

Article 18

Notification of the Acts, Procedural Documents and Judicial Decisions

1. The requested Party shall make notification of the acts, procedural documents and court decisions forwarded to it by the requesting Party.

2. This notification may be made by the simple delivery to the recipient of the document or the court decision. If the requesting Party expressly requests it, the requested Party shall make notification in accordance with one of the forms provided for in its legislation for analogous notifications or by any special form that is compatible with such legislation.

3. It will serve as proof of the receipt of the procedural document a copy dated and signed by the recipient or a statement of the requested Party from which it consents the fact, form and date of receipt. Such proof will be sent immediately to the requesting Party. In case the requesting Party requests it, the requested Party will need if the receipt has taken place in accordance with its legislation. If it has not been possible to make the notification, the requested Party will give immediate knowledge of the reason to the applicant Party.

Title III

Procedure

Article 19

Request Contents

1. The request for legal assistance should be formulated in writing. Under circumstances of urgent character or if permitted by the requested Party, requests will be able to curate by fax or by any other electronic means, but should be formalized with the possible brevity, and should contain at least the following information:

a) authority of which emanates and, if it is the case, the authority entrusted with the criminal procedure of the requesting Party;

b) object and reason of the application;

c) if it is the case, full name, date and place of birth, nationality and address of the person mentioned in the request for assistance;

d) description of the facts that motivate the investigation in the requesting Party, by joining or transcribing the text of the legal provisions pertinent to the offences;

e) deadline in which the requesting Party wishes for the fulfilment of the solicitation.

2. The solicitation will contain still:

a) in the case of application of foreign law in the execution of the application, Article 8, inciso 2, the text of the legal provisions applicable in the requesting Party and the reason for its application;

b) in the case of participation of persons in the process, Article 3, inciso 2, the designation of the person who will attend and the reason for their presence;

c) in the case of receipt of acts and documents of the proceedings, Articles 10 and 17, the name and address of the recipient of the documents;

d) in the case of notification for the attendance of witnesses or experts, Article 10, the indication that the requesting Party will assume the spending on passages, daily, honorary and compensation, which will be paid in advance, if they so request;

e) in the case of temporary backside of persons arrested, Article 12, the full name of them.

Article 20

Request Attention

1. If the solicitation does not fit the devices of this Agreement, the Central Authority of the requested Party shall immediately inform the Central Authority of the applicant Party, to which it will request to modify it or to complete it at the earliest, without prejudice to the adoption of the provisional measures referred to in Article 13.

2. If the solicitation fits to the terms of this Agreement, the Central Authorities of the requested Party shall immediately refer it to the competent authority.

3. Serviced the solicitation, the competent authority shall immediately refer it to the Central Authority of the requested Party, as well as the information and evidence obtained. The Central Authority shall ensure that the care is faithful and complete, and shall communicate the results to the Central Authority of the requesting Party.

Article 21

Legalization Disthink

The documents, expedients or evidence transmitted by the Central Authority of the Party required under the terms of the Presnete Agreement will be exempt from all formalities of legalization and / or authentication and will be accepted as means of proof.

Article 22

Language

1. Applications made pursuant to this Agreement and the accompanying documents shall be drawn up in the official language of the authority of the requested Party, save in cases of notification of procedural parts without formalities.

2. It is incumbent on the applicant Party to translate the documents issued or obtained for the fulfillment of a solicitation.

Article 23

Spends with Request Attenement

1. The applicant Party will assume only the following expenses effected for the fulfillment of a solicitation:

a) compensation, passages and daily of witnesses and of their eventual representatives;

b) expenditment relative to the temporary backlass of detained persons;

c) passages, daily, honorary and other expert spending.

2. By assuming that the fulfillment of the solicitation will produce extraordinary expendities, the requested Party shall inform the requesting Party in order to establish the conditions to which it will be subject.

Title IV

Finals provisions

Article 24

Others Agreements or Convêments and National Legislations

The provisions of this Agreement will not prevent the wider assistance that has been or come to be agreed upon between the Parties, in other agreements or arrangements, or that result from the internal legislation or an established practice.

Article 25

Consultations

1. Should they consider it necessary, the Central Authorities shall exchange, in writing or verbally, opinions on the application or implementation of this Agreement, in a general manner or in a particular case.

2. Any controversy that arises between the Parties related to interpretation or the application of this Agreement will be resolved between them by diplomatic way.

Article 26

Vigence and Denpronunciation

1. This Agreement is to be ratified and shall enter into force 30 (thirty) days after the date of exchange of the respective instruments of ratification.

2. This Agreement will have indefinite duration. Any of the Parties will be able to report it by means of written notification, forwarded via diplomatic track.

3. The complaint shall take effect one hundred and eighty days after the said notification has been made.

Done in Lima on July 21, 1999 in two original copies, in the Portuguese and Spanish languages, being both texts being equally Authentic.

By the Government of the Federative Republic of Brazil

Luiz Felipe Lampreia

Minister of State for Foreign Relations

By the Government of the Republic of Peru

Fernando Trazegnies Granda

Minister of Foreign Affairs