Decree No. 6340, of 3 JANUARY 2008.
Promulgates the Inter-American Convention on mutual assistance in criminal matters, signed in Nassau, on 23 May 1992, and its Optional Protocol, signed in Managua, on 11 June 1993.
The PRESIDENT of the REPUBLIC, in the use of the role that gives the art. 84, section IV, of the Constitution, and whereas the National Congress approved the text of the Inter-American Convention on mutual assistance in criminal matters and its Optional Protocol, by means of legislative decree in 272, of 4 October 2007; and whereas the Brazilian Government ratified the cited instruments in November 12 2007;
DECREES: Art. 1 the Inter-American Convention on mutual assistance in criminal matters and its Optional Protocol, accompanied by copy to this Decree, shall be implemented and completed as fully as they contain.
Art. 2 Are subject to the approval of the National Congress any acts that may result in a review of these instruments or which entail charges or demanding commitments to national heritage, pursuant to art. 49, item I, of the Constitution.
Art. 3 this Decree shall enter into force on the date of its publication.
Brasilia, January 3 2008; 187o of independence and 120(1) of the Republic.
LUIZ INACIO LULA DA SILVA Samuel Pinheiro Guimarães Neto this text does not replace that published in the 4.1.2008 INTER-AMERICAN CONVENTION on MUTUAL ASSISTANCE in CRIMINAL MATTERS The Member States of the Organization of American States, Considering: That the Charter of the Organization of American States, in its article 2, subparagraph (e), establishes as essential purpose of American States? find the solution of the political problems legal and economic, that arise between Member States?;
and the adoption of common rules in the field of mutual assistance in criminal matters will contribute to this purpose, Adopt the following inter-American Convention on mutual assistance in criminal matters: chapter I General provisions Article 1 Object of the Convention, States parties undertake to provide each other mutual assistance in criminal matters, in accordance with the provisions of this Convention.
Article 2 Application and scope of the Convention the States parties shall provide mutual assistance in investigations, processes and procedures in criminal matters relating to offences whose knowledge is within the jurisdiction of the requesting State at the time that request assistance.
This Convention provides a State party to undertake in the territory of another State party the exercise of jurisdiction or performance of functions reserved exclusively to the authorities of the other party by its domestic law.
This Convention shall apply solely to the provision of mutual assistance between States parties; its provisions do not allow individuals to get or exclude evidence or prevent the fulfilment of any request for assistance.
Article 3 Central Authority each State shall designate a Central Authority at the time of signature or ratification of this Convention or accession to it.
The central authorities shall be responsible for sending and receiving the requests for assistance.
The central authorities shall communicate directly with one another for all purposes of this Convention.
Article 4 the assistance referred to in this Convention, taking into account the diversity of the legal systems of States parties, shall be based on requests for cooperation from the authorities responsible for the investigation or prosecution of offences in the requesting State.
Article 5 dual criminality will be provided assistance, although the fact that give rise to this is not punishable under the law of the requested State.
When the request for assistance refer to the following measures: a) embargo and sequestration of assets;
b) inspections and confiscations, including household searches, the requested State may not provide assistance if the fact that give rise to the application is not punishable in accordance with its legislation.
Article 6 for the purposes of this Convention, the fact that give rise to the application shall be punishable by a sentence of one year or more of imprisonment in the requesting State.
Article 7 scope of the assistance provided for in this Convention shall include, among others, the following acts: a) notification of judicial decisions and judgments;
b) testimonial evidence and receive statements of persons;
c) citation of witnesses and experts in order to give evidence;
d) implementation of embargoes and kidnappings of assets, freezing of assets and assistance in procedures relating to confiscation;
and conducting inspections or confiscation);
f) examination of objects and places;
g) display of court documents;
h) shipment of documents, reports, information and evidence;
I) transfer of detainees, for the purposes of this Convention; and (j)) any other Act, provided there is agreement between the requesting State and the requested State.
Article 8 Military Offenses This Convention does not apply to crimes subject exclusively to military law.
Article 9 Refusal of Assistance the requested State may refuse assistance when, in your opinion: a) the request for assistance is used in order to judge a person for an offence for which that person has already been previously sentenced or acquitted in proceedings in the requesting State or required;
b) the investigation is initiated with the objective of rendering, punish or discriminate in any way a person or group of persons, by reason of sex, race, social status, nationality, religion or ideology;
c) the request relates to an offence or crime-related political politician, or common crime is being prosecuted for political reasons;
d) in the case of request for assistance given to a tribunal of exception or ad hoc tribunal;
and) is affected public order, sovereignty, security or fundamental public interests; and (f)) the request relates to an offence. Nevertheless, will provide assistance if the offence is committed by an intentionally false statement is made orally or in writing, or by an intentional omission of Declaration, aiming to hide proceeds of any other offence provided for in this Convention.
Chapter II Application, Processing and execution of assistance Article 10 requests for assistance: regulation requests for assistance issued by the requesting Party shall be made in writing and shall be completed in accordance with the national law of the requested State.
To the extent that the legislation of the requested State does not have anything to the contrary, will be fulfilled the formalities referred to in the application for assistance in the form expressed by the requesting State.
Article 11 the defendant may, with explanation of cause, postpone the execution of any request that has been made, if it is necessary to continue an investigation or procedure in the requested State.
Article 12 the documents and objects sent in compliance with a request for assistance will be returned to the requested State within the shortest possible, unless it decides otherwise.
Article 13 Search, Embargo, Kidnapping and delivery of objects in the requested State will comply with the request for the search, embargo, kidnapping and delivery of any item included, among others, documents, background or objects, if the competent authority determines that the request contains the information justifying the proposed measure. This measure will be subject to the procedural and substantive law of the requested State.
As provided for in this Convention, the requested State shall determine in accordance with its legislation, any requirement necessary to protect the interests of third parties in relation to the objects to be transferred.
Article 14 Measures of goods to Central Authority of either party may communicate to the Central Authority of the other information we have about the existence in the territory of the latter revenues, products or instruments of a crime.
Article 15 the Parties shall assist each other, to the extent permitted by its laws, to promote the precautionary procedures and guarantee measures of revenue, products or instruments of the crime.
Article 16 Date, location and mode of execution of the request for assistance, the requested State shall determine the date and venue of the fulfillment of the request for assistance and shall communicate this information to the requesting State.
The authorities and stakeholders, or their representatives, of the requesting State may, after knowledge of the Central Authority of the requested State, be present and participate in the fulfillment of the request for assistance in that it prohibits the law of the requested State and any express consent of their authority in this regard.
Chapter III Decisions, resolutions and notifications of sentences and attendance of Witnesses and Experts Article 17 at the request of the requesting State, the requested State shall make the notification of decisions or judgments or other documents from the competent authorities of the requesting State.
Article 18 Testimony in the requested State at the request of the requesting State, any person who is in the requested State may be cited to appear, in accordance with the legislation of the requested State, before a competent authority to testify or produce documents, background or evidence.
Article 19 Testimony in the requesting State
When the requesting State requests the attendance of a person in 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 cominatórias or coercive measures. If deemed necessary, the Central Authority of the requested State may register in writing the consent of the person to appear in the requesting State. The Central Authority of the requested State shall promptly inform the Central Authority of the requesting State that answer.
Article 20 transfer of Detained the person subject to criminal proceedings in the requested State, whose attendance in the requesting State is required as a result of the assistance provided for in this Convention, shall be transferred temporarily to the requesting State for that purpose, provided that the person and the requested State consent to this transfer.
The person subject to criminal proceedings in the requesting State, whose attendance in the requested State is required as a result of the assistance provided for in this Convention, shall be transferred temporarily to the requested State, provided that the person consents and the two States are in agreement.
The established earlier can be denied in the following cases, among others: a) if the person arrested or who are serving time deny its consent to the transfer;
b) while that person's presence is required for investigation or criminal proceedings pending in the jurisdiction to which it is subject the person;
c) if there are other legal considerations or of another nature, as determined by the competent authority of the requested State or applicant.
For the purposes of this article: a) the receiver will State College and the obligation to keep physical custody the person transferred, unless the sender State says otherwise;
(b)) the State receiver will return the person transferred to the sender State as soon as circumstances permit, or subject to agreement between the central authorities of both States;
c) concerning the return of the person transferred, will not be necessary for the sender State promotes an extradition procedure;
d) the elapsed time in the receiving State shall be computed for the purposes of fulfillment of the sentence that has been imposed in the sender State; and e) that person to remain in the receiving State may not in any circumstances exceed the period remaining until the completion of the sentence or 60 days, whichever period expires first, unless the person and both States consent to extend it.
Article 21 Transit States parties shall cooperate, to the extent possible, for the transit through their territory of the persons mentioned in the preceding article, provided that the respective Central Authority has been notified in advance and that these people journey under the custody of agents of the requesting State.
This notice is not required when use is made of the means of transport by air and has not laid down any regular landing in the territory of the State or States parties to be overflown.
Article 22 pass attendance or transfer of person who consents to make representations or give evidence as set forth in this Convention shall be conditioned, if the person or the sender State request in advance that attendance or transfer, that the requested State grant a safe conduct that, while they find in that State, that person cannot: a) be detained or prosecuted for crimes prior to his departure from the territory of the sender State;
b) be cited to make representations or give evidence in proceedings not specified in the request; or c) be detained or prosecuted on the basis of the statement to pay, except in cases of contempt or false testimony.
The safe conduct provided for in the preceding paragraph shall cease when the person voluntarily prolongs his stay in the territory of the receiving State for more than ten days from the time when his presence is no longer required in this State, as communicated to the sender State.
Article 23 in the case of witnesses or experts shall be attached, to the extent necessary and possible, the files of questions, interviews or questionnaires.
Chapter IV Consignment information and Background Article 24 in cases where assistance to proceed according to this Convention, after the formulation of the request and in accordance with its internal procedure, the requested State shall provide to the requesting State a copy of the documents, background or public information that there are organisms or Government offices in the requested State.
The requested State may provide copies of any document or information that there are antecedent a governmental body or distribution in this State, but which are not of public character, to the same extent and subject to the same conditions as would be offered to their own judicial or other authorities responsible for law enforcement. The requested State may, at its discretion, refuse totally or partially a request based on this paragraph.
Article 25 Limitation of the use of information or Evidence the applicant State may not disclose or use any information or evidence obtained pursuant to this Convention for purposes other than those indicated in the request for assistance, without prior consent of the Central Authority of the requested State.
In exceptional cases, if the requesting State need to disclose and use all or part of the information or evidence for purposes other than those indicated, request the authorization corresponding to the requested State, which, in its sole discretion, you will be able to access the request, or deny, in whole or in part, the requested.
Information or evidence should be disclosed and used to the extent necessary for the proper fulfillment of the procedure or the steps indicated in the application, will not be subject to the application for authorization referred to in this article.
When necessary, the requested State may request that the information or evidence provided are kept in confidentiality, in accordance with the conditions specified by the Central Authority. If the requesting party cannot comply with such a request, the central authorities shall consult to determine whether the conditions of confidentiality that are mutually convenient.
Chapter V Procedure Article 26 requests for assistance shall contain the following information: a) offence referred to procedure and brief statement of the facts constituting the same, investigation or prosecution of the case and a description of the facts referred to in the application;
b) Act which prompted the request for assistance with precise description of this;
c) when applicable, the description of any procedure or other special requirements of the requesting State;
d) precise description of the assistance requested and any information necessary for the fulfilment of the request.
When a request for assistance cannot be serviced by the requested State, this return to the requesting State with explanation of the cause.
The requested State may request additional information when it is required to comply with the request, in accordance with its national law or to facilitate compliance.
When necessary, the requesting State shall in accordance with the provisions of the last paragraph of article 24 of this Convention.
Article 27 The documents that are processed in accordance with this Convention through the central authorities will be exempted from legalization or authentication.
Article 28 requests for assistance and the accompanying documentation should be translated to an official language of the requested State.
Article 29 the requested State shall bear all ordinary expenses to comply with a request within its territory, with the exception of the following, which shall be borne by the requesting State: the) fees of experts; and (b)) and related expenses travel expenses arising from the transportation of people from the territory of one State to the other.
If the processing of the request will cause extraordinary expenses, the Parties shall consult to determine the terms and conditions under which the assistance may be provided.
Article 30 to the extent that they consider it useful and necessary for the better fulfilment of this Convention, States parties may exchange information on matters related to the application of the same.
Article 31 internal law Responsibility of each party determine the liability for damages that may arise from the actions of its authorities in compliance with this Convention.
Neither party shall be liable for damage arising from actions of the authorities of the other party in the formulation or a claim under this Convention.
Chapter VI final provisions Article 32 of this Convention shall be open for signature by the Member States of the Organization of American States.
Article 33 This Convention shall be subject to ratification. The instruments of ratification shall be deposited in the General Secretariat of the Organization of American States.
Article 34 this Convention shall be open for accession by any State. The instruments of accession shall be deposited in the General Secretariat of the Organization of American States.
Any State could formulate reservations to this Convention by signing it, approve it, ratify it or accede to it, since the reservations referring to one or more specific provisions and are not incompatible with the object and purpose of the Convention.
Article 36 of this Convention shall not be construed to affect or restrict existing obligations, in accordance with the provisions of any other international, bilateral or multilateral Convention, which contains or may contain clauses governing, partially or totally, specific aspects of mutual assistance in criminal matters, nor the policies more favourable than those States may observe in the matter.
37 article This Convention shall enter into force on the thirtieth day following the date on which it was deposited the second instrument of ratification.
For the State to ratify the Convention or accede after deposit of the second instrument of ratification, the Convention shall enter into force on the thirtieth day following the date on which any deposited its instrument of ratification.
Article 38 States parties that have two or more territorial units in which different systems of law rules with respect to matters referred to in this Convention shall declare, at the time of signature, ratification or accession, the Convention shall apply to all territorial units or only to one or more of these units.
Such statements may be notified by subsequent declarations, which shall state expressly the territorial unit or units to which this Convention shall apply. Subsequent declarations shall be transmitted to the General Secretariat of the Organization of American States and take effect 30 days after received.
Article 39 this Convention shall remain in force for an indefinite period, but any of the States parties may denounce it. The instrument of denunciation shall be deposited in the General Secretariat of the Organization of American States. After one year from the date of the deposit of the instrument of denunciation, cease the effects of the Convention for the State whistleblower, continuing her subsisting for other States parties.
Article 40 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 a certified copy of its text to the respective registration and publication to the United Nations Secretariat, in accordance with article 102 of its constitutive Charter. The General Secretariat of the Organization of American States shall notify the Member States of that organization and those States that there are acceded to Convention, signatures and deposits of instruments of ratification, accession and withdrawal, as well as reservations. They also transmit the declarations provided for in article 38.
Issued in Nassau, Bahamas, to twenty-three days of the month of May 1992.
OPTIONAL PROTOCOL on the INTER-AMERICAN CONVENTION on MUTUAL ASSISTANCE in CRIMINAL MATTERS The Member States of the Organization of American States, the Inter-American Convention on mutual assistance in criminal matters, adopted in Nassau, on 23 May 1992 (hereinafter referred to as? Convention?), have agreed to adopt the following optional protocol concerning the Inter-American Convention on mutual assistance in criminal matters: article l When a claim is made by a State party to this Protocol, the other States parties shall not exercise the right to refuse requests for assistance, as provided for in article 9 of the Convention, basing the refusal only in character of the offence.
Article 2 the State party to this Protocol, when acting as the requested State under the Convention, will not refuse the provision of assistance that requires implementation of the measures referred to in article 5 of the Convention, in accordance with its laws, the Act specified in the request correspond to a fiscal offence of the same nature.
Final clauses Article 3 1. This Protocol shall be open for signature by Member States of the OAS on the OAS General Secretariat, from January 1, 1994, and subject to ratification or accession by only part of the States parties to the Convention.
2. This Protocol shall remain open to accession by any other State to accede or has acceded to the Convention in accordance with the conditions laid down 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 may formulate a reservation to this Protocol by signing it, ratify it or even join, provided that the reservation is not incompatible with the object and purpose of the Protocol.
5. This Protocol shall not be interpreted in such a way as to affect or restrict, in whole or in part, the obligations in force in the context of other international, bilateral or multilateral convention governing any particular aspect of international assistance in criminal matters, nor the policies more favourable than those States may observe in relation to this matter.
6. This Protocol shall enter into force on the 30th day from the date on which two States parties have deposited their instruments of ratification or accession, since the Convention has entered into force.
7. For each State ratifying the Protocol or accede after deposit of the second instrument of ratification or accession, the same will commence on the 30th day following the date on which any deposited the instrument of ratification or accession, provided that such State is a party to the Convention.
8. The State party has two or more territorial units in which different systems of law rules relating to matters covered by this Protocol shall declare, at the time of signature, ratification or accession, this Protocol shall apply to all its territorial units or only to one or more of these units.
9.As declarations referred to in paragraph 8 of this article may be amended by subsequent statements indicating expressly the territories to which this Protocol shall apply. These subsequent statements shall be transmitted to the General Secretariat of the Organization of American States and will enter into force 30 days after the date of its receipt.
Article 4 This Protocol shall remain in force as long as the Convention is in force, but any State party may denounce it. The instruments of denunciation shall be deposited in the General Secretariat of the Organization of American States. After one year from the date of the deposit of the instrument of denunciation, cease the effects of this Protocol for the State whistleblower, continuing this effect to the other States parties.
Article 5 the original instrument of this Protocol, 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 copies of your text to its registry to the Secretariat of the United Nations.
The General Secretariat of the Organization of American States shall notify the Member States of this organization and the States which acceded to the Convention and any Protocol signatures and deposits of instruments of ratification, accession or withdrawal, as well as reservations, if any. In addition, it shall send to the same declarations referred to in article 3 of this Protocol.
Issued in the city of Managua, Nicaragua, on 11 June 1993.