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Decree No. 2009-1156 29 September 2009 On The Publication Of The Convention On Mutual Assistance In Criminal Matters Between The Government Of The French Republic And The Government Of The State Of The United Arab Emirates, Signed In Paris The 2 M...

Original Language Title: Décret n° 2009-1156 du 29 septembre 2009 portant publication de la convention d'entraide judiciaire en matière pénale entre le Gouvernement de la République française et le Gouvernement de l'Etat des Emirats arabes unis, signée à Paris le 2 m...

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Summary

Application of art. 52 to 55 of the Constitution.

Keywords

OFFICE, STATUS AND EUROPEAN , INTERNATIONAL AGREEMENT , BILATERAL AGREEMENT , FRANCE , USE OF ASSESSMENT ,


JORF no.0227 of 1 October 2009 page 15903
text No. 14



Decree No. 2009-1156 of 29 September 2009 on the publication of the mutual legal assistance agreement in criminal matters between the Government of the French Republic and the Government of the State of the United Arab Emirates, signed in Paris on 2 May 2007 (1)

NOR: MAEJ0921641D ELI: https://www.legifrance.gouv.fr/eli/decret/2009/9/29/MAEJ0921641D/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/decret/2009/9/29/2009-1156/jo/texte


President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Considering articles 52 to 55 of the Constitution;
Vu la Act No. 2009-712 of 18 June 2009 authorizing the approval of the mutual legal assistance agreement in criminal matters between the Government of the French Republic and the Government of the State of the United Arab Emirates;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:

Article 1


The Convention on Mutual Assistance in Criminal Matters between the Government of the French Republic and the Government of the State of the United Arab Emirates, signed in Paris on 2 May 2007, will be published in the Official Journal of the French Republic.

Article 2


The Prime Minister and the Minister for Foreign and European Affairs are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.

  • Annex



    C O N V E N T I O N


    D'ENTRAIDE JUDICIAIRE SUR MATIÈRE PÉNALE ENTRE LE GOUVERNEMENT DE LA RÉPUBLIQUE FRANÇAISE ET LE GOUVERNEMENT DE L'ÉTAT DES ÉMIRATS ARABES UNIS
    The Government of the French Republic and the Government of the State of the United Arab Emirates,
    Desirous of concluding a mutual legal assistance agreement in criminal matters,
    The following provisions were agreed:


    PART I
    GENERAL PROVISIONS
    Article 1


    1. The two States undertake to mutually agree, in accordance with the provisions of this Convention, the widest possible mutual legal assistance in any proceedings involving offences whose repression is, at the time of request, the jurisdiction of the judicial authorities of the requesting State.
    2. This Convention does not apply to the enforcement of arrest and conviction decisions or to military offences that do not constitute ordinary offences.


    Article 2


    1. Each Contracting State shall designate a central authority to transmit and receive requests under this Convention. The central authorities communicate with each other through diplomatic channels.
    2. The central authority of the French Republic is the Ministry of Justice and the State of the United Arab Emirates is the Ministry of Justice.
    3. Each Contracting State shall notify the other of any change in its central authority through diplomatic channels.


    Article 3


    1. Mutual legal assistance may be denied:
    (a) If the application relates to offences considered by the requested State either as political offences or as offences related to political offences.
    (b) If the requested State considers that the enforcement of the application is likely to affect its sovereignty, security, public order or other essential interests.
    2. Before refusing mutual legal assistance, the requested State appreciates whether it can be granted such conditions as it deems necessary. If the requesting State consents, it must comply with it.


    Article 4


    1. If the law of the requested State does not prohibit it, requests for assistance may be carried out according to any modality mentioned in the application.
    2. The requested State shall inform the requesting State of any circumstances which may significantly delay the execution of the application.
    3. The requested State shall inform the requesting State of any decision on its part not to partially or fully execute or defer the request for assistance and shall state the reasons for that decision.


    Chapter II
    Confidentiality and speciality
    Article 5


    1. If requested by the requesting State, the requested State shall preserve the confidentiality of the application, including its content and supporting documents, as well as any action taken in accordance with the application. If the requested State cannot execute the request without waiving the required confidentiality, it shall inform the requesting State, which then decides whether it is necessary to execute the request.
    2. The requested State may request that the information or evidence provided remain confidential or be disclosed or used only under the terms and conditions specified by the requested State. When it intends to make use of these provisions, the requested State shall inform the requesting State beforehand. If the requesting State accepts these terms and conditions, it is obliged to respect them. Otherwise, the requested State may refuse assistance.
    3. The requesting State may not use any information or evidence obtained pursuant to this Convention for purposes other than those stipulated in the application without the prior consent of the requested State.


    Chapter III
    Letters of Request
    Article 6


    1. Without prejudice to the provisions of article 4, paragraph 1, the requested State shall, in accordance with its legislation, enforce the Letters of Request relating to a criminal case addressed to it by the judicial authorities of the requesting State and whose purpose is to carry out acts of instruction or to communicate evidence, records or documents of any kind.
    2. If the requesting State wishes the witnesses or experts to file under oath, it expressly makes the request and the requested State shall take action if its legislation does not oppose it.
    3. The requested State may only transmit certified copies or photocopies of the requested records or documents. However, if the requesting State expressly requests the communication of the originals, it is applied to this request to the extent possible.


    Article 7


    If the requesting State expressly requests it, the requested State shall inform the date and place of execution of the rogatory commission. The authorities of the requesting State and the persons concerned may attend such execution if the requested State consents to it.


    Article 8


    1. The requested State may suspend the surrender of the objects, records or documents requested for communication, if necessary for an ongoing criminal procedure.
    2. Objects, as well as the originals of the records or documents, which have been communicated pursuant to a rogatory commission, are returned as soon as possible by the requesting State to the requested State, unless the requested State renounces them.


    Article 9


    1. The requested State shall, to the extent permitted by its legislation, carry out requests for apprehension, search, freezing and seizure of assets, objects and evidence relating to the offence, the subject of the investigation in the requesting State. The requested State shall inform the requesting State of the result of the execution of the application.
    2. The requested State may transmit to the requesting State the seized assets, objects and exhibits, if the requesting State accepts the terms and conditions proposed by the requested State for this transmission.


    Article 10


    1. The requested State shall endeavour, upon request of the requesting State, to determine whether any products or instruments of a criminal offence are in its territory. The request specifies the grounds on which the applicant State's conviction is based that such products or instruments may be found in the territory of the requested State. The requested State shall inform the requesting State of any follow-up to that request.
    2. If, in accordance with paragraph 1 of this article, the alleged products and instruments originating from an offence are found, the requested State, at the request of the requesting State, shall, in accordance with its legislation, take the necessary measures to freeze, seize or confiscate such products or instruments.
    3. The confiscated products and instruments are retained by the requested State. However, the requested State, at the request of the requesting State, may, to the extent permitted by its legislation, and in accordance with the terms and conditions agreed between the two States, transfer to the requesting State, in whole or in part, the property or product of the sale, the instruments or products of a criminal offence.
    4. In the application of this article, the legitimate rights and interests of the requested State, victims, owners and third parties in good faith on products and instruments are preserved in accordance with the law of the requested State.


    Chapter IV


    Procedural and judicial decisions, witnesses, experts and prosecutions


    Article 11


    1. The requested State shall, in accordance with its legislation, issue proceedings and judicial decisions sent to it by the requesting State for that purpose.
    2. The proof of the surrender is made by means of a receipt dated and signed by the consignee or a declaration of the requested State stating the fact, form and date of surrender. Either of these documents is immediately transmitted to the requesting State. If the surrender could not be done, the requested State would immediately know the reason to the requesting State.


    Article 12


    The witness or expert who has not referred to a summons to appear in the requesting State whose surrender has been requested may not be submitted, even though this summons would contain injunctions, to no sanction or measure of constraint, unless he or she subsequently proceeds voluntarily to the territory of the requesting State and that he or she is regularly quoted again.


    Article 13


    The requesting State shall bear the burden of compensation, travel and residence expenses of the witness or expert who are necessary for his appearance, calculated from the place of his residence. These allowances and fees may not be less than the rates provided by the standards and regulations in force in the State where the hearing is to take place.


    Article 14


    1. If the requesting State considers that the personal appearance of a witness or an expert before its judicial authorities is particularly necessary, it mentions this in the request for surrender of the summons and the requested State informs the witness or the expert. The requested State shall notify the requesting State of the answer of the witness or expert.
    2. In the case provided for in paragraph 1 of this article, the application or citation shall include the approximate amount of the allowances to be paid, as well as travel and stay expenses to be refunded.
    3. If an application is submitted for this purpose, the requested State may make an advance to the witness or expert. This is mentioned on the quote and refunded by the requesting State.


    Article 15


    1. Any detained person whose personal appearance is requested by the requesting State pursuant to paragraph 1 of Article 14 shall be temporarily transferred to the territory where the hearing must take place under the condition of its removal within the period specified by the requested State and subject to the provisions of Article 16 to the extent that they may apply.
    2. The transfer may be refused:
    (a) If the detained person does not consent to it;
    (b) If its presence is necessary in a criminal procedure pending in the territory of the requested State;
    (c) If his transfer is likely to extend his detention; or
    (d) If other compelling considerations oppose its transfer to the territory of the requesting State.
    3. The transferred person must remain in detention in the territory of the requesting State, unless the requested State of the transfer requests its release.


    Article 16


    1. No witness or expert who, as a result of a summons, appears before the judicial authorities of the requesting State may not be prosecuted, detained or subjected to any other restriction of his individual liberty on the territory of that State for acts or convictions prior to his departure from the territory of the requested State.
    2. No person, quoted before the judicial authorities of the requesting State in order to answer any facts for which it is the subject of prosecution, may not be prosecuted, detained or subjected to any other restriction of his or her personal liberty in the territory of that State for acts or convictions prior to his or her departure from the territory of the requested State and not subject to the summons.
    3. The immunity provided for in this article ceases when the witness, the expert or the person prosecuted, having had the opportunity to leave the territory of the requesting State for sixty consecutive days after his presence was no longer required by the judicial authorities, remained in that territory or returned to it after leaving it.


    Chapter V
    Judicial Officer
    Article 17


    1. The requested State shall communicate, to the extent that its judicial authorities may themselves obtain them in such cases, the extracts of the criminal record and any information relating to the criminal record requested by the judicial authorities of the requesting State for the purposes of a criminal case.
    2. In cases other than those provided for in paragraph 1 of this article, such a request shall be applied in the conditions provided for in the legislation, regulations or practice of the requested State.


    Chapter VI
    Procedure
    Article 18


    1. Assistance requests must contain the following indications:
    (a) The authority whose application emanates;
    (b) The object and motive of the application;
    (c) To the extent possible, the identity and nationality of the person in question, and
    (d) The name and address of the recipient, if any, or as many information as possible allowing the recipient's identification and location.
    2. The rogatory commissions provided for in Article 6 also mention the legal qualification of the facts and contain a summary of the facts.


    Article 19


    1. All requests for assistance under this Convention shall be addressed by the central authority of the requesting State to the central authority of the requested State according to the path provided for in Article 2 and referred by the same way.
    2. In the event of an emergency, requests for assistance are addressed directly by the central authority of the requesting State to the central authority of the requested State. Requests for mutual assistance, together with the enforcement documents, are returned by the same way.


    Rule 20


    1. All requests for assistance under this Convention are written in the official language of the requesting State and accompanied by a translation into the official language of the requested State.
    2. Requests for mutual legal assistance and accompanying documents must be made of the signature and seal of the requesting authority or authenticated by that authority. These documents are exempted from any formality of legalization.


    Article 21


    Any refusal of mutual legal assistance is motivated.


    Article 22


    1. Subject to the provisions of Article 13, the execution of requests for assistance shall not result in the reimbursement of any costs, except for those caused by the intervention of experts in the territory of the requested State.
    2. If it appears that extraordinary costs are required to meet the request, the Parties shall consult to determine the terms and conditions under which the application may be initiated or continued.


    Chapter VII
    Exchange of notice of conviction
    Article 23


    Each of the two states shall give the other State notice of the criminal awards which concern the nationals of the latter State and which have been registered in the criminal record. The central authorities provide this notice at the end of each year.


    Chapter VIII
    Transit
    Article 24


    1. A State may authorize the transit in its territory of persons detained without its nationality whose personal appearance has been sought by the other State, to provide its testimony or evidence or to assist in an investigation or in a criminal procedure. This authorization is granted on request with all relevant documents.
    2. The transferred person remains in detention in the territory of the requested State of transit, unless the requesting State requests his release during the temporary transfer.


    Chapter IX
    Final provisions
    Rule 25


    1. Each of the two Contracting States shall notify the other of the fulfilment of the procedures required by its Constitution for the entry into force of this Convention. These notifications will be exchanged as soon as possible.
    2. This Convention shall enter into force on the first day of the second month following the date of receipt of the last notification.
    3. Each State may at any time denounce this Convention by sending a notification of denunciation to the other by diplomatic means; denunciation shall take effect six months after the date of receipt of such notification.
    In faith, the representatives of the two Governments, duly authorized, have signed and affixed their seal to this Convention.
    Done in Paris, on 2 May 2007, in duplicate, in French and Arabic, both texts being equally authentic.


    For the Government
    of the French Republic:
    Pascal Clément
    Keeping the Seals,
    Minister of Justice
    For the Government of the State
    United Arab Emirates:
    Mohammed Bin Nakhira
    Al Dhaheri
    Minister of Justice


Done in Paris, September 29, 2009.


Nicolas Sarkozy


By the President of the Republic:


The Prime Minister,

François Fillon

Minister for Foreign Affairs

and European,

Bernard Kouchner

(1) This Agreement entered into force on 1 September 2009.
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