DECREE NO. 6,340, OF January 3, 2008.
Promulga the Inter-American Convention on Mutual Assistance in Criminal Matters, signed in Nassau, on May 23, 1992, and its Facultative Protocol, signed in Managua, on June 11, 1993.
THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that gives him the art. 84, inciso IV, of the Constitution, and
Considering that the National Congress has approved the texts of the Inter-American Convention on Mutual Assistance in Criminal Matters and its Optional Protocol, by means of the Legislative Decree no 272, of October 4, 2007; and
Considering that the Brazilian Government ratified the quoted instruments on November 12, 2007;
Art. 1st The Inter-American Convention on Mutual Assistance in Criminal Matters and its Optional Protocol, apensos by copy to this Decree, will be executed and fulfilled as entirely as they contain themselves.
Art. 2nd are subject to the approval of the National Congress any acts that may result in revision of the said instruments or that carries charges or gravy commitments to the national heritage, in the terms of art. 49, inciso I, of the Constitution.
Art. 3rd This Decree comes into effect on the date of its publication.
Brasilia, January 3, 2008; 187th of the Independence and 120th of the Republic.
LUIZ INACIO LULA DA SILVA
Samuel Pinheiro Guimarães Neto
This text does not replace the one published in the DOU of 1/4/2008
INTER-AMERICAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
The member states of the Organization of American States,
That the Charter of the Organization of American States, in its article 2 (e, establishes as the essential purpose of the American States? search for the solution of the problems political, legal and economic that arise among the member states?;
That the adoption of common rules in the field of mutual assistance in criminal matters will contribute to that purpose,
Adotam the following Inter-American Convention on Mutual Assistance in Matter Penal:
Object of the Convention
States Parties undertake to provide each other with mutual assistance in criminal matters, in accordance with the provisions of this Convention.
Application and Reachability of the Convention
The States Parties shall provide mutual assistance in investigations, prosecutions and procedures in criminal matters referring to offences whose knowledge is within the competence of the requesting State at the time of applying for assistance.
This Convention does not provide a State Party to undertake, in the territory of another State Part, the exercise of the jurisdiction nor the performance of functions reserved exclusively to the authorities of the other Party by its internal legislation.
This Convention applies solely to the provision of mutual assistance between States Parties; its provisions do not authorize private individuals to obtain or delete evidence or to prevent compliance with any request for assistance.
Each State shall designate a Central Authority, at the time of signature or ratification of this Convention, or of the accession to it.
Central Authorities will be responsible for sending and receiving the requests for assistance.
Central Authorities will communicate directly with each other for all the effects of this Convention.
The assistance referred to in this Convention, taking into account the diversity of the legal systems of the states Parties, shall be based on requests for cooperation from the authorities in charge of the investigation or the trial of offences in the requesting State.
Assistance will be provided, although the fact that gives rise to this is not punishable under the legislation of the requested state.
When the request for assistance refers to the following measures:
a) embargo and sequester of goods;
b) inspections and confiscations, including home searches, the requested State may not render assistance if the fact that gives rise to the request is not punishable with their legislation.
For the purposes of this Convention, the fact that gives rise to the application must be punishable by a year or more in prison in the requesting State.
Scope of Application
The assistance provided in this Convention will understand, among others, the following acts:
a) notification of court rulings and sentences;
b) receipt of testimonial evidence and statements from people;
c) citation of witnesses and experts in order to provide testimony;
d) execution of embargoes and kidnappings of goods, asset freezes and assistance in procedures concerning the confiscation;
e) fulfillment of inspections or confiscations;
f) examination of objects and locations;
g) display of court documents;
h) shipment of documents, reports, information and proof elements;
i) transfer of detained persons, to the effects of this Convention; and
j) any other act, provided that there is agreement between the requesting State and the requested State.
This Convention will not apply to the offences subject exclusively to military legislation.
Refusal of Assistance
The requested State will be able to refuse assistance when, in their opinion:
a) the request for assistance is used with the aim of judging a person by an offence by which that person has already been previously convicted or acquitted in a process in the Applicant state or required;
b) the investigation is initiated with the aim of processing, punish or discriminate in some way a person or group of people, on the grounds of sex, race, social condition, nationality, religion or ideology;
c) the application refers to political offence or related to political offence, or the common offence being prosecuted on political grounds;
d) if it comes to the request for assistance emanating from an exception court or an ad hoc tribunal;
e) is affected the public order, sovereignty, security, or fundamental public interests; and
f) the request to refer to a tax offence. Notwithstanding, assistance shall be provided if the offence is committed by an intentionally false statement made verbally or in writing, or by an intentional omission of declaration, with the aim of concealing revenue from any another offence provided for in this Convention.
Request, Tramite and Execution of Assistance
Assistance requests: Regulation
The requests for assistance dispatted by the requesting Party will be made in writing and will be complied with in accordance with the domestic law of the requested State.
To the extent that the legislation of the requested State does not dispose anything to the contrary, they shall be complied with the trames mentioned in the application for assistance in the manner expressed by the requesting State.
The requested Party may, with explanation of cause, delay the execution of any request that it has been made, if it is necessary to continue an investigation or procedure in the requested State.
The documents and objects sent in fulfillment of a request for assistance will be returned to the requested State within the shortest possible time, unless this one decides otherwise.
Search, embargo, hijacking and delivery of objects
The requested State will comply with the request regarding the search, embargo, hijacking and delivery of any item understood, among others, documents, antecedents or objects, if the competent authority determines that the application contains the information justifying the proposed measure. Such a measure shall be submitted to the procedural and substantive law of the requested State.
As provided for in this Convention, the requested State shall determine under its legislation, any requirement necessary to protect the interests of third parties with respect to the objects that should be transferred.
Cautelary measurements of Bens
The Central Authority of either Party will be able to communicate to the Central Authority of the other the information it possesses about the existence in the territory of the latter of the revenue, products or instruments of an offence.
The parties will provide mutual assistance, to the extent permitted by their laws, to promote the procedures cautionary and the measures of acauteling of the revenue, products or instruments of the offence.
Data, Sede, and Modality of the Assistance Order's Enforcement
The requested State shall fix the date and seat of the fulfilment of the request for assistance and shall communicate them to the State applicant.
The authorities and the interested parties, or their representatives, of the requesting State, may, after knowledge of the Central Authority of the State required, be present and participate in the fulfillment of the request for assistance to the extent that it does not prohibit the legislation of the requested State and there is express consent of its authorities in that regard.
Notifications of Decisions, Resolutions, and of Sentences
and Attendance of Witnesses and Perths
At the request of the requesting State, the requested State shall make notification of decisions or sentences or other documents coming from the competent authorities of the State applicant.
Testimony in the Redear State
At the request of the requesting State, any person who is found in the requested State may be quoted to appear, in accordance with the legislation of the requested State, before a competent authority to provide testimony or to present documents, background or evidence.
Testimony in the State Applicant
When the requesting State requests the turnout of a person on its territory to provide testimony or report, the requested State shall invite the witness or expert to appear, before the competent authority of the requesting State, voluntarily and without using any cominatory or coercive measures. If it is deemed necessary, the Central Authority of the requested State shall be able to register in writing the consent of the person to appear in the requesting State. The Central Authority of the requested State shall immediately inform the Central Authority of the requesting State of that response.
Transfer of Detained
The person subject to a criminal procedure in the requested State, whose turnout in the requesting State is necessary by virtue of the assistance provided for in this Convention, shall be transferred provisionally with that end to the requesting State, provided that such person and the requested State consint in that transfer.
The person subject to a criminal procedure in the requesting State, whose turnout in the Required state required by virtue of the assistance provided for in this Convention, it shall be transferred provisionally to the requested State, provided that such person consents and that the two States are in agreement.
The established previously could be denied in the following cases, among others:
a) if the person detained or who is serving time to deny their consent to the transfer;
b) while the presence of that person is required for investigation or for criminal case pending in the jurisdiction to which it is subject to person;
c) if they exist other considerations of legal or other nature, determined by the competent authority of the requested State or applicant.
For the effects of this article:
a) the receiving state will have the faculty and the obligation to keep in physical custody the transferred person, unless the State sender indicate otherwise;
b) the receiving state will return the person transferred to the State sender as soon as circumstances permit it, or subject to the agreed upon between the Central Authorities of both States;
c) with regard to the devolution of the transferred person, it will not be necessary for the sender State to promote an extradition procedure;
d) the time transcurred in the receiving State will be computed, for the purposes of fulfilling the sentence that has it has been imposed in the sender State; and
e) the permanence of that person in the receiving State no may, under no circumstances, exceed the period that is lacking for compliance with the sentence or sixty days, as per the period expiring first, unless the person and both States consents to extend it.
The States Parties shall provide their collaboration, as far as possible, for transit, by their territory, of the persons mentioned in the previous article, provided that the Authority Central respective have been given notice in due advance and that such persons travel in the custody of agents of the requesting State.
Such advance notice will not be required when you make use of the means of air transport and not if any regular landing has been foreseen in the territory of the State or States Parties to be overflown.
The attendance or transfer of the person who consents to make statement or render testimony as willing in this Convention will be conditional, if the person or the state sender to request it in advance of such a turnout or transfer, to which the requested State conceives a safe-conduit according to which, while it is in that State, that person will not be able to:
a) being held or sued by offenses prior to its exit from the territory of the sender State;
b) be cited to make statement or render testimony in unspecified procedures in the request; or
c) be detained or prosecuted on the basis of the declaration you provide, save in the event of desacate or false testimony.
The save-conduit provided for in the preceding paragraph shall cease when the person prolong voluntarily its stay in the territory of the receiving State for more than ten days from the time its presence is no longer necessary in that state, as communicated to the sender State.
In the case of witnesses or experts, they will be attached, to the extent necessary and of the possible, the expedients of questions, corresponding interrogations or questionnaires.
Information Remittal and Antecedents
In cases where the assistance proceeding under this Convention, after the formulation of the application and in accordance with its internal procedure, the requested State shall provide the State with applicant copy of the documents, background or public character information that exists in the government bodies or government offices of the requested State.
The requested State will be able to provide copies of any document, antecedent or information that exist in a body or government allocation of that State, but which are not of a public character, to the same extent and subject to the same conditions as would be afforded to their own judicial or other authorities in charge of application of the law. The requested State may, at its discretion, refuse to fully or partially refuse an application formulated on the basis of this paragraph.
Limitation of the Use of Information or Proofs
The applicant state will not be able to disclose or use any information or proof obtained in application of this Convention for purposes other than those indicated in the request for assistance, without prior consent from the Central Authority of the State required.
In exceptional cases, if the applicant State needs to disclose and use, total or partially, the information or proof for purposes other than the nominees, will request the authorization corresponding to the requested State, which, at its discretion, will be able to access the application, or deny, in whole or in part, the requested.
The information or proof that should be disclosed and used, to the extent necessary for the appropriate compliance with the procedure or the representations stated in the application, will not be subject to the application for authorization referred to in this article.
When it is necessary, the requested State will be able to request that the proportionate information or evidence be maintained in a confidential character, of compliance with the conditions specified by the Central Authority. If the requesting Party is unable to comply with such a request, the Central Authorities shall consult each other to determine the conditions of confidentiality that are mutually convenient.
The requests for assistance should contain the following information:
a) offence to which the procedure and brief exposure of the constitutive facts of the same, investigation or criminal proceedings of which to deal with and description of the facts referred to in the application;
b) act that motivated the request for assistance with accurate description of this;
c) when it is pertinent, the description of any procedure or other special requirements of the applicant State;
d) description needs the requested assistance and any information necessary for the fulfilment of the order.
When a request for assistance cannot be served by the requested State, this the will return it to the requesting State with explanation of the cause.
The requested State will be able to ask for additional information when it is necessary to give compliance with the application, in accordance with its domestic law or to facilitate such compliance.
When it is necessary, the applicant State shall comply with the schedule in the last paragraph of Article 24 of this Convention.
The documents that are plotted in accordance with this Convention through the Central Authorities will be exempt from legalization or authentication.
The requests for assistance and the attached documentation should be translated to an official language of the required state.
The required state will cost all ordinary expenses of fulfillment of an application within its territory, with the exception of the following, which will be borne by the requesting State:
a) expert's fees; e
b) travel expenses and related expenses arising from the transport of persons from the territory from one state to the other.
If it appears that the stepping up of the application will occasioned extraordinary expenses, the Parties shall will consult to determine the terms and conditions under which assistance may be provided.
In so far as they deem it useful and necessary for the best fulfillment of this Convention, the States Parties may exchange information on matters relating to the application of it.
The internal law of each Party shall regulate liability for damages that may arise from the actions of its authorities in the fulfillment of this Convention.
None of the Parties shall be liable for the damages that may arise from the shares of the authorities of the other Party in the formulation or fulfillment of an application under this Convention.
This Convention will be open to the signing of the member states of the Organization of American States.
This Convention will be subject to ratification. The instruments of ratification shall be deposited at the General Secretariat of the Organization of American States.
This Convention will be open to the accession of any US state. The instruments of accession shall be deposited in the General Secretariat of the Organization of American States.
Any State will be able to formulate reservations to this Convention by signing it, approving it, ratifying it or joining it, since that reservations refer to one or more specific provisions and are not incompatible with the object and end of the Convention.
This Convention will not be interpreted to affect or constrain the prevailing obligations, the provisions of any other international, bilateral or multilateral convention, which contains or may contain clauses that are either partially or completely retaining specific aspects of mutual assistance in criminal matters, nor the more favorable praxes that those states can observe in the matter.
This Convention will enter into force on the thirtieth day counted from the date on which it was deposited the second instrument of ratification.
For the State to ratify the Convention or to accede to it after there has been deposited the second instrument of ratification, the Convention shall enter into force on the thirtieth day counted from the date on which there is deposited its instrument of ratification.
The States Parties that possess two or more territorial units in which they vigorously pursue different legal systems with relation to issues of which this Convention is concerned should declare, at the time of signature, ratification or accession, that the Convention shall apply to all territorial units or only to one or more of these units.
Such statements may be notified upon subsequent declarations, which will expressly specify the unit or territorial units to which this Convention will apply. Subsequent declarations will be conveyed to the General Secretariat of the Organization of American States and will take effect thirty days after they received.
This Convention will invigorate by indefinite deadline, but any of the States Parties will be able to report it. The instrument of denunciation shall be deposited in the General Secretariat of the Organization of American States. Transcurring one year, counted from the date of filing of the instrument of denunciation, shall cease the effects of the Convention to the whistleblower State, continuing it to the remaining States Parties.
The original instrument of this Convention, whose texts in Spanish, French, English, and Portuguese are equally authentic, shall be deposited in the General Secretariat of the Organization of American States, which shall send certified copy of its text for the respective registration and publication to the Secretariat of the United Nations, in accordance with Article 102 of its Charter constitutive. The General Secretariat of the Organization of American States shall notify the member States of the said Organization and the States that they have acceded to the Convention, the signatures and the deposits of instruments of ratification, accession and denunciation, and like the reservations there are. They will also forward them to the statements provided for in Article 38.
Exclaimed in Nassau, Bahamas, at the twenty-three days of the month of May one thousand nine hundred and ninety-two.
OPTIONAL PROTOCOL RELATING TO THE CONVENTION
INTERAMERICAN About Mutual Assistance
IN PENAL MATTER
The member states of the Organization of American States,
Taking into account the Inter-American Convention on Mutual Assistance in Criminal Matters, passed in Nassau, on May 23, 1992 (henceforth named?Convention?),
Agreed to approve the following Optional Protocol Relative to the Convention InterUS on Mutual Assistance in Criminal Matters:
When the request is made by a State Party in this Protocol, the other States Parties will not exercise the right to refuse requests for assistance, provided for in Article 9 (f) of the Convention, by basing the refusal solely on the tax character of the offence.
The State party to this Protocol, when acting as a State required under the Convention, will not refuse to provide of the assistance that requires the application of the measures mentioned in Article 5 of the Convention if, in accordance with its laws, the act specified in the application corresponds to a tax offence of the same nature.
1.This Protocol will be open for signature by the OAS member states at the OAS General Secretariat from , and subject to ratification or accession only by the States Parties to the Convention.
2.This Protocol shall remain open to the accession of any other State which adheres to or acceded to the Convention in accordance with the conditions stipulated in this article.
3.The instruments of ratification and accession shall be deposited in the General Secretariat of the Organization of American States.
4.Any State will be able to formulate reservations to this Protocol by signing it, ratifying it or by acceding to it, provided that the reservation is not incompatible with the object and purpose of the Protocol.
5.This Protocol shall not be construed to affect or restrict, in whole or in part, the obligations prevailing in the context of other international, bilateral or multilateral conventions that would rejam any specific aspect of assistance international in criminal matters, nor the more favorable praxes that these states may observe in relation to this matter.
6.This Protocol shall enter into force on the thirtieth day as of the date on which two States Parties have deposited their instruments of ratification or accession, provided that the Convention has entered into force.
7.For each State that ratifies the Protocol or acceding to it after there has been deposited the second instrument of ratification or accession, the duration of the same shall begin on the thirtieth day counted from the date on which the instrument of ratification or accession, provided that such State is Party to the Convention.
8.The State Party which has two or more territorial units in which different legal systems in relation to matters covered by this Protocol shall be declared, at the time of signature, ratification or accession, if this Protocol will be applicable to all of its territorial units or only to one or more of these units.
9.The statements referred to in paragraph 8 of this article may be amended by subsequent declarations that expressly indicate the territories in which this Protocol will be applicable. Such subsequent declarations shall be transmitted to the General Secretariat of the Organization of American States and shall enter into force thirty days after the date of its receipt.
This Protocol will vigorate while the Convention is in force, but any State Party will be able to report it. The instruments of denunciation shall be deposited in the General Secretariat of the Organization of American States. Transcurring one year, counted from the date of filing of the instrument of denunciation, shall cease the effects of this Protocol to the whistleblower State, continuing this to invigorate for the remaining States Parties.
The original instrument of this Protocol, whose texts in Spanish, French, English, and Portuguese are equally authentic, will be deposited in the General Secretariat of the Organization of American States, which will send certified copies of its text to the respective registry to the Secretariat of the United Nations.
The General Secretariat of the Organization of American States shall notify the member states of that Organization and to the States that have been acceded to the Convention and the Protocol the signatures and deposits of instruments of ratification, accession or denunciation, as well as reserves, if any. In addition, it shall transmit to the same declarations as mentioned in Article 3 of this Protocol.
Exordered in the city of Managua, Nicaragua, on the eleven day of June one thousand nine hundred and ninety and three.