Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister of State, Minister for Foreign and European Affairs,
Considering the Constitution, in particular articles 52 to 55;
Vu la Act No. 2010-609 of 7 June 2010 authorizing the approval of the mutual legal assistance agreement in criminal matters between the Government of the French Republic and the Government of the Kingdom of Morocco;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:
The mutual legal assistance agreement in criminal matters between the Government of the French Republic and the Government of the Kingdom of Morocco, signed in Rabat on 18 April 2008, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister of State, Minister for Foreign and European Affairs, are responsible, each with regard to him, for the execution of this decree, which will be published in the Official Journal of the French Republic.
C O N V E N T I O N
OF JUDICIARY SUBSTANCE WITH THE GOVERNMENT OF THE FRENCH REPUBLIC AND GOVERNMENT OF THE MARKING
The Parties,
Desirous of establishing more effective cooperation in the field of mutual legal assistance in criminal matters,
The following agreed:
Article 1
Scope
1. The Parties undertake to mutually agree, in accordance with the provisions of this Convention, the widest possible legal aid in any proceedings involving offences whose repression is, at the time of request, the jurisdiction of the judicial authorities of the requesting Party.
2. Mutual legal assistance is also granted:
(a) In civil actions attached to criminal proceedings, as long as the criminal court has not yet definitively ruled on criminal action,
(b) In the procedures for the investigation and notification of enforcement of penalties or security measures;
3. This Convention does not apply to the enforcement of arrest decisions, military offences that do not constitute ordinary offences, or to the enforcement of convictions subject to the provisions of paragraph 2 of this Article.
Article 2
Competent authorities
Unless otherwise provided in this Convention, the competent authorities for the implementation of this Convention shall, for the French Republic and for the Kingdom of Morocco, be the judicial authorities.
Article 3
Restrictions on mutual assistance
1. Mutual legal assistance may be denied:
(a) If the application relates to offences considered by the requested Party either as political offences or as offences related to political offences. However, for the purposes of this Convention, breaches of life are not considered political offences against the person of a head of State of one of the Parties or of a member of his family.
(b) If the requested Party considers that the enforcement of the application is likely to affect the sovereignty, security, public order or other essential interests of its country.
2. Mutual legal assistance may only be rejected on the ground that the application relates to an offence that the requested Party describes as a tax offence.
3. The application may not be rejected on the grounds that the legislation of the requested Party does not impose the same type of taxes or taxes, or does not contain the same type of tax, tax, customs and currency regulations as the legislation of the requesting Party.
4. The requested Party may not invoke bank secrecy as a ground for rejecting any assistance with respect to a mutual legal assistance request.
5. Before denying mutual legal assistance in accordance with paragraph 6, the requested Party shall appreciate the conditions that it considers necessary. If the requesting Party consents, it must comply with it.
6. Any refusal or postponement of mutual legal assistance is motivated and notified to the requesting Party.
Article 4
Content of mutual assistance requests
1. Assistance requests must contain the following indications:
(a) The designation of the authority whose application emanates;
(b) The purpose and motive of the application, including a summary statement of facts, their date and place of commission;
(c) A description of the judicial procedure to which the application relates;
(d) Applicable texts, including criminalization texts;
(e) To the extent possible, the identity and nationality of the person who is the subject of the proceedings, and
(f) The name and address of the recipient, if applicable.
2. Assistance requests may also include:
(a) Any confidentiality requirement under section 8;
(b) Details of any particular procedure that the requesting Party wishes to have been implemented;
(c) The deadlines for the application and the reasons for the deadline.
3. Requests for mutual legal assistance and accompanying documents may be submitted indifferently in the language of the requesting Party or in the language of the requested Party.
Article 5
Transmission of mutual assistance requests
1. Requests for mutual assistance shall be made in writing, or by any means to obtain a written record of such requests under conditions that allow the receiving Party to verify its authenticity. Applications are addressed directly by the requesting Party's central authority to the requested Party's central authority and the responses are referred by the same channel.
2. In the event of a duly motivated emergency, requests for assistance may be sent directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party. The central authority of the requesting Party shall transmit the original of the application to the central authority of the requested Party as soon as possible. Parts relating to the execution of such requests shall be referred by way provided for in paragraph 1 of this article.
3. If the authority seized of a request for assistance is incompetent to implement it, it shall forthwith transmit this request to the competent authority of its country and inform the requesting Party of it.
Article 6
Central authorities
The central authority for the French Republic is the Ministry of Justice. The central authority for the Kingdom of Morocco is the Ministry of Justice.
Article 7
Implementation of mutual assistance requests
1. Assistance requests are carried out in accordance with the law of the requested Party.
2. At the request of the requesting Party, the requested Party shall comply with the formalities and procedures expressly specified by the requesting Party, unless otherwise provided in this Convention and provided that such formalities and procedures are not contrary to the fundamental principles of the law of the requested Party.
3. Where the application cannot be executed or cannot be fully implemented, the authorities of the requested Party shall promptly inform the authorities of the requesting Party and indicate the conditions under which the application could be implemented. The authorities of the two parties may subsequently agree on the further reservation to the request, if any, by subordinating it to the respect of the said conditions.
4. The requested Party shall apply the request for assistance as soon as possible, taking into account at best the procedural deadlines or other nature specified by the requesting Party. This explains the reasons for this deadline. Where applicable, the requested Party shall promptly bring to the knowledge of the requesting Party any circumstances likely to significantly delay the execution of the application.
5. If it is foreseeable that the time limit set by the requesting Party to carry out its application will not be met and if the reasons referred to in paragraph 4, second sentence demonstrate concretely that any delay will significantly hinder the procedure conducted in the requesting Party, the authorities of the requested Party shall forthwith indicate the estimated time required to carry out the application. The authorities of the requesting Party shall indicate without delay whether the application is nevertheless maintained. The authorities of the requesting Party and the requested Party may then agree on the continuation to be booked on the application.
6. The requested Party may defer assistance if the application is likely to interfere with an ongoing investigation or prosecution.
7. If the requesting Party specifically requests, the requested Party shall inform it of the date and place of execution of the request for assistance. If the competent authorities of the requested Party consent, the competent authorities of the requesting Party, their representatives or persons mentioned in the application, as well as persons designated by the central authority of the requesting Party, may attend the execution of the request Party. To the extent authorized by the law of the requested Party, the authorities of the requesting Party or the persons mentioned in the application may have a witness or an expert interrogated.
8. Where they have been involved in the execution of the application, the competent authorities of the requesting Party, their representatives or the persons mentioned in the application may be given a certified copy of the enforcement documents directly.
9. The requested Party may only transmit certified copies or photocopies of the requested records or documents. However, if the requesting Party expressly requests the communication of the originals, the request shall be applied to the extent possible.
10. The requested Party may suspend the surrender of objects, records or documents requested for communication, if necessary for an ongoing criminal procedure.
11. Objects, as well as the originals of the records and documents, communicated pursuant to a request for assistance, shall be returned as soon as possible by the requesting Party to the requested Party, unless the requested Party expressly waives it.
Article 8
Confidentiality and speciality
1. The requested Party shall respect the confidential nature of the request for assistance and its content under the conditions provided for in its legislation.
If the application cannot be carried out without infringement of its confidential nature, the requested Party shall inform the requesting Party which decides whether it is necessary to follow up on the execution.
2. The requested Party may request that the information or evidence provided be kept confidential or be disclosed or used only under the terms and conditions specified by the requested Party. When it intends to make use of these provisions, the requested Party shall notify the requesting Party in advance. If the requesting Party accepts these terms and conditions, it is obliged to respect them. Otherwise, the requested Party may refuse assistance.
3. The requesting Party may not disclose or use any information or evidence provided or obtained under this Convention for purposes other than those specified in the application without the prior consent of the requested Party.
4. Depending on the case of a case, the Party that has transmitted the information or evidence may request the Party to which such information or evidence has been transmitted to inform the Party of its use.
5. Where conditions for the use of information or evidence have been imposed in accordance with Article 24, paragraph 2, these conditions prevail over the provisions of this Article. In the absence of such conditions, the provisions of this Article shall apply.
6. This article does not apply to information or evidence obtained by a Party pursuant to this Convention from that Party.
Article 9
Further requests for mutual legal assistance
1. If it appears necessary, in the course of carrying out an application for mutual legal assistance, to undertake investigations which, if not expressly provided for in the application, in particular because the need for such investigations was ignored at the time that the request was made, may be useful to the establishment of the facts, the requested Party shall promptly inform the authorities of the requesting Party in order to allow them to take further steps, indicating, where appropriate, the information
2. If the competent authority of the requesting Party makes an application for mutual legal assistance that completes an earlier application, it is not required to re-issue the information already provided in the original application. The additional request contains the information necessary to identify the original application.
3. If the competent authority that has made a request for mutual legal assistance participates in its execution in the requested Party, it may apply directly to the competent authority of the requested Party as long as it is present in the territory of that Party.
Article 10
Witness or expert comparison
in the requesting Party
1. If the requesting Party considers that the personal appearance of a witness or an expert before its judicial authorities is particularly necessary, it refers to it in the request for surrender of the summons and the requested Party invites that witness or expert to appear.
The requested Party shall communicate the response of the witness or expert to the requesting Party.
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. The allowances to be paid, as well as travel and stay expenses to be reimbursed to the witness or expert by the requesting Party, shall be calculated from the place of his residence and shall be granted to him at least equal to the rates set out in the tariffs in force on the territory of the Party in which the hearing is to take place.
3. If requested, the witness or expert may receive advances from a party or all of its travel expenses through the consular authorities of the requesting Party.
4. The witness or expert who has not referred to a summons to appear whose surrender has been requested may not be submitted, even though this summons would contain injunctions, no penalty or measure of constraint, unless he or she subsequently proceeds voluntarily to the territory of the requesting Party and that he or she is regularly quoted again.
5. Where a Party makes a request for assistance in respect of a witness who needs protection, the competent authorities of both Parties may agree on measures to protect the person concerned.
Article 11
Immunities
1. No witness or expert, of any nationality he is, who, following a summons, appears before the judicial authorities of the requesting Party, may not be prosecuted, detained or subjected to any other restriction of his individual liberty on the territory of that Party for acts or convictions prior to his departure from the territory of the requested Party.
2. No person, of any nationality whatsoever, referred to the judicial authorities of the requesting Party in order to answer any facts for which it is prosecuted, may not be prosecuted, detained or subjected to any other restriction of his or her personal liberty for acts or convictions prior to his or her departure from the territory of the requested Party and not subject to the summons.
3. The immunity provided for in this article shall cease when the witness, expert or person prosecuted, having been given the opportunity to leave the territory of the requesting Party for thirty consecutive days, after his presence was no longer required by the judicial authorities, nevertheless remained in or returned to that territory after he left.
Article 12
Transfer of detained persons
for mutual assistance
1. Any person detained in the Requested Party whose personal appearance as a witness or for the purpose of confrontation is requested by the Requesting Party shall be temporarily transferred to the territory where the hearing is to take place, provided that it is referred to within the period specified by the Requested Party.
2. The transfer may be refused:
(a) if the detained person does not consent to it;
(b) if its presence is necessary in an ongoing criminal procedure in the territory of the requested Party;
(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 Party.
Article 13
Temporary transfer,
for the purposes of an instruction, persons detained
In the event of an agreement between the competent authorities of the Parties, the requesting Party that has requested an instruction requiring the presence of a detained person in its territory may temporarily transfer that person to the territory of the requested Party.
Article 14
Rules common to articles 12 and 13
For the purposes of sections 12 and 13:
(a) Requests for transfer and related communications are transmitted by the central authorities of the Parties;
(b) The agreement between the competent authorities of the Parties shall provide for the terms of the temporary transfer of the person and the period in which it is to be returned to the territory of the Party in which it was previously held;
(c) If it is required that the person concerned consent to his transfer, a declaration of consent or a copy thereof shall be provided without delay by the Party in the territory of which the person is detained;
(d) The transferred person shall remain in detention in the territory of the Party in which it is transferred, unless the Party in whose territory it is detained requests its release. The period of detention in the territory of the Party in which the person is transferred shall be deducted from the duration of the detention to be held by the person concerned;
(e) The provisions of Article 11 shall apply mutatis mutandis.
Article 15
Monitored delivery
1. Each Party undertakes to ensure that, at the request of the other Party, controlled deliveries may be authorized in its territory in criminal investigations relating to offences that may result in extradition.
2. The decision to use controlled deliveries is taken in each case by the competent authorities of the requested Party, in accordance with the national law of that Party.
3. The controlled deliveries are carried out in accordance with the procedures provided by the requested Party. The power to act, direction and control of the operation shall be vested in the competent authorities of that Party.
Article 16
Criminal accountability
During the operations referred to in Article 15, officials of the Party other than the Response Party shall be treated as agents of the Party in respect of the offences against which they would be victims or committed.
Article 17
Civil accountability
1. Where, pursuant to Article 15, officials of a Party are on a mission to the territory of the other Party, the first Party shall be liable for the damage they cause during the course of the mission, in accordance with the law of the Party on whose territory they operate.
2. The Party in whose territory the damage referred to in paragraph 1 is caused shall take the compensation of such damage under the conditions applicable to the damage caused by its own agents.
3. The Party whose civil servants have caused damage to anyone in the territory of the other Party shall pay in full to the latter the sums it has paid to the victims or their rightful persons.
4. Without prejudice to the exercise of its rights to third parties and with the exception of paragraph 3, each Party shall, in the case provided for in paragraph 1, waive the claim to the other Party for the reimbursement of the amount of the damage incurred.
Article 18
Request for banking information
1. Upon request by the requesting Party, the requested Party shall provide, as soon as possible, all information relating to the accounts of any kind, held or controlled, in any bank located in its territory, by a natural or legal person subject to a criminal investigation in the requesting Party.
2. At the request of the requesting Party, the Requested Party shall provide information on specified bank accounts and bank transactions that have been carried out for a specified period on one or more accounts specified in the application, including information on any issuer or receiver account.
3. At the request of the requesting Party, the requested Party shall, for a specified period, follow the banking transactions carried out on one or more accounts specified in the application and communicate the results to the requesting Party. The practical modalities for follow-up are agreed between the competent authorities of the requested Party and the requesting Party.
4. The information referred to in paragraphs 1, 2 and 3 shall be provided to the requesting Party, even if it is accounts held by entities acting in the form or on behalf of trust funds or any other instrument for the management of an assignment heritage whose identity of constituents or beneficiaries is not known.
5. The requested Party shall take the necessary steps to ensure that the banks do not disclose to the concerned client or to other third parties that information has been transmitted to the requesting Party in accordance with the provisions of this article.
Article 19
Search, seizure and freezing of assets
1. The requested Party shall, to the extent permitted by its legislation, carry out searches, assets freeze and evidence seizure.
2. The requested Party shall inform the requesting Party of the outcome of the execution of such requests.
3. The requesting Party shall comply with any condition imposed by the requested Party with respect to the seized objects submitted to the requesting Party.
Rule 20
Proceeds of offences
1. The requested Party shall endeavour, upon request, to determine whether the proceeds of an offence to the law of the requesting Party are in its jurisdiction and shall inform the requesting Party of the results of its research. In its application, the requesting Party shall communicate to the requested Party the grounds on which it is based that such products may be in its jurisdiction.
2. If, pursuant to paragraph 1, the alleged proceeds from an offence are found, the Requested Party shall take the necessary measures authorized by its legislation to prevent transactions, be transferred or disposed of before a court of the Requesting Party has made a final decision in respect of them.
3. The requested Party shall, in accordance with its legislation, apply for mutual assistance to proceed with the confiscation of proceeds of an offence.
4. The requested Party shall, to the extent permitted by its legislation, and at the request of the requesting Party, consider, as a matter of priority, the return of the proceeds of the offences, including for the compensation of the victims or for restitution to the legitimate owner, subject to the rights of the third parties in good faith.
5. Products of an offence include instruments used for the commission of this offence.
Article 21
Restitution
1. The requested Party may, upon request of the requesting Party and without prejudice to the rights of third parties in good faith, make objects obtained by illicit means available to the requesting Party for their return to their legitimate owner.
2. As part of the execution of a mutual assistance request, the requested Party may waive, either before or after they have been handed over to the requesting Party, the reference of the objects that have been handed over to the requesting Party if this may promote the return of these objects to their legitimate owner. The rights of third parties in good faith are not affected.
3. In the event that the Requested Party renounces the return of the objects before they are handed over to the requesting Party, it does not assert any right of gage or other right of recourse arising from the tax or customs legislation on such objects.
4. A waiver pursuant to paragraph 2 shall not affect the right of the requested Party to excrete from the legitimate owner of taxes or customs duties.
Article 22
Provision and delivery of criminal proceedings
1. The requested Party shall surrender the judicial acts to it by the requesting Party for that purpose. These are transmitted directly to the prosecutor's office where the consignee of the act is located. The surrender of the acts shall be carried out in accordance with one of the provisions of the legislation of the Party required for similar notifications.
2. Where there are reasons to believe that the recipient does not understand the language in which the act is established, that act — or at least its important passages — must be translated into the language of the other Party. If the authority of the act knows that the recipient knows only another language, the act – or at least its important passages – must be translated into that other language.
3. All judicial acts are accompanied by a note indicating that the consignee may obtain from the authority of the act, or other authorities of the party concerned, information on his rights and obligations concerning the act. Subsection 4 also applies to this note.
4. The proof of the surrender is made by means of a receipt dated and signed by the recipient or by a certificate from the requested Party concerning the fact, form and date of the surrender. Each of these documents is immediately forwarded to the requesting Party. If the surrender could not be carried out, the requested Party would in fact disclose the reason to the requesting Party.
5. This section does not affect the application of section 10, paragraph 4, and sections 11 and 12.
6. The provisions of this article do not exclude the ability of Contracting Parties to direct judicial and extrajudicial acts to their own nationals by their representatives or delegates.
Article 23
Denunciation for prosecution
1. Any denunciation by one of the Parties for prosecution in the courts of the other Party shall be transmitted by the central authorities. The provisions of paragraph 3 of Article 4 shall apply.
2. The Requested Party shall make known the follow-up to this denunciation and shall transmit, where appropriate, a copy of the decision taken.
Article 24
Spontaneous exchange of information
1. Within the limits of their national law, the competent authorities of the two Parties may, without a request to do so, transmit or exchange information concerning criminally punishable acts whose punishment or treatment falls within the jurisdiction of the receiving authority at the time the information is provided.
2. The authority that provides the information may, in accordance with its domestic law, subject to certain conditions its use by the receiving authority. The receiving authority is required to comply with these conditions as long as it has been notified in advance of the nature of the information, it has accepted that the information be transmitted to it.
3. Spontaneous exchanges of information are made and transmitted in accordance with the provisions of Article 5, paragraph 1.
Rule 25
Judicial record and conviction
1. The Requested Party 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 record requested by the judicial authorities of the requesting Party for the purposes of a criminal case. Requests may be sent directly by the relevant judicial authorities to the competent service of the requested Party, and responses may be sent directly by that service.
2. For the French Republic, the competent department is the "National Judicial Officer". For the Kingdom of Morocco, the competent service is the "Service du Casier Judiciaire National". Each Party shall notify the other of any relevant change of service.
3. In cases other than those provided for in paragraph I, the application of the requesting Party shall be carried out in accordance with the requirements of the legislation, regulations or practice of the requested Party. Requests shall be addressed by the central authority of the requesting Party to the central authority of the requested Party. Requests for copies of judgments and orders are addressed directly to the competent judicial authorities.
Rule 26
Legalization costs
The documents and documents transmitted under this Convention shall be exempted from any legalization process.
Rule 27
Fees
Subject to the provisions of Article 10, paragraph 3, the execution of requests for assistance shall not result in the reimbursement of any costs, except for those incurred by the intervention of experts in the territory of the requested Party and by the transfer of persons detained under Articles 12 and 13.
Rule 28
Consultations
The Parties shall consult on the interpretation and application of this Convention through diplomatic channels.
Rule 29
Special provisions
1. Articles 8, 14 and 15 of the Convention on Mutual Legal Aid, Exequatur of Judgments and Extradition between the Government of the French Republic and the Government of the Kingdom of Morocco, made in Paris on 5 October 1957, are repealed.
2. The provisions of this Convention replace those of the other provisions of the Convention on Mutual Legal Assistance, Exequatur of Judgments and Extradition between the Government of the French Republic and the Government of the Kingdom of Morocco, made in Paris on 5 October 1957, as they may apply to mutual legal assistance in criminal matters.
Rule 30
Final provisions
1. Each Party shall notify the other of the constitutional procedures required for the entry into force of this Convention.
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. Any Party may denounce at any time this Convention by sending a notification of denunciation to the other party, through diplomatic channels. The denunciation shall take effect on the first day of the second month following the date of receipt of the notification.
In faith, the undersigned, duly authorized, signed this Convention.
Done in Rabat on 18 April 2008, in duplicate, in French and Arabic, both texts being equally authentic.
For the Government
of the French Republic:
Bernard Kouchner
Minister
Foreign Affairs
and European
For the Government
of the Kingdom of Morocco:
Abdelwhad Radi
Minister of Justice
Done on 16 August 2011.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
The Minister of State,
Minister for Foreign Affairs
and European,
Alain Juppé
