SAN MARINO We the Captains Regent of the Most Serene Republic of San Marino Having regard to Article 4 of the Constitutional Law no.185 / 2005 and Article 6 of Qualified Law n.186 / 2005; We promulgate and publish the following ordinary law approved by the Great and General Council meeting of 21 July 2009. 30 July 2009 LAW 104 LAW ON rogatory INTERNATIONAL CRIMINAL MATTERS TITLE I GENERAL PROVISIONS Art. 1 (Prevalence of conventions and law International general) 1. the letters rogatory in criminal matters are governed by the provisions of international conventions in force for the Republic and by general international law. 2. If such standards are lacking or do not provide otherwise, the rules that follow. Art. 2 (Scope) 1. This law applies only to proceedings concerning criminal offenses the punishment of which, at the time when legal aid is requested is a matter for the judicial authorities. 2. They can be subject to international requests for the purposes of this Act requests relating to criminal proceedings which have as their object the execution of acts of investigation or transmission of evidence, records or documents. 3. This Act does not apply to arrests, the enforcement of verdicts or offenses under military law which are not offenses under ordinary law. Art. 3 (General rule of interpretation) 1. The provisions contained in international conventions in force for the Republic and the rules of this law, must be interpreted in the sense most favorable to international cooperation. TITLE II CHAPTER I rogatory INTERNATIONAL FROM ABROAD Art. 4 (Form and content of the application) 1. Applications for assistance shall contain the following information: a. the authorities, by making the request, and if different, the competent authorities for prosecution; b. the object and the reason for the request; c. the offense for which the applicant State proceeds; d. a brief summary of the facts, except in cases where the subject of the application consists of a request for notification; is. as far as possible, the identity and nationality of the person concerned, and f. where appropriate, the name and address of the recipient. 2. The application for legal aid and the documents annexed thereto shall be transmitted together with a translation into Italian. 3. All documents forwarded in pursuance of this Act shall be exempt from any form of authentication. Art. 5 (irregular Requests) 1. If the application does not comply with the provisions of the preceding Article, or the information contained therein are not sufficient to enable the Republic to deal with the request, the Law Commissioner subject to special rules referred to in Article 9 of this law, he asks the courts of the requesting State, to amend the request or to complete it with additional information. 2. Where the judicial authorities of the requesting State does not provide the improvement of the application within one year of receipt of the request for integration, the uneven application passes to the archive. Art. 6 (Transmission of the application) 1. Without prejudice to the different modes of transmission envisaged by the bilateral agreements in force for the Republic, the application and the documents annexed thereto shall be sent by the judicial authority of the requesting State directly to the Court of Law Republic and simultaneously sent for information to the Secretary of State for Justice Art. 7 (competent Magistrate for letters rogatory from abroad) 1. the judge of the letters rogatory is the Law Commissioner. 2 Art. 8 (judicial activities) 1. The Law Commissioner, except in the case of suspension of the application, shall execute the letter of request swiftly, and in any event no later than 60 days after receipt, by adopting the relevant decree for enforcement. 2. In the event of irregular letters rogatory the 60-day period provided in the preceding paragraph shall begin from receipt of the modifications and / or information required for the completion of the application. 3. The execution of the request is denied: 1) if the requested acts are contrary to the principles contained in the Declaration of citizens' rights and fundamental principles of the San Marino; 2) if the requested acts are expressly prohibited by law; 3) if the requested acts jeopardize the sovereignty, security or other essential interests of the Republic; 4) if the request concerns an offense considered by the Republic as a political offense, an offense connected with a political offense;
5) if the application relates to the same fact and against the same person to whom it was delivered final judgment Judicial Authority of San Marino; 6) if the letter of request concerning search or seizure is advanced on the basis of crimes not punishable under the law of the requesting State and in accordance with that of the Republic or if the request is not compatible with the San Marino law; 7) if the request deals with the citation of a witness, expert or accused before the judicial authority and the requesting foreign State does not offer adequate guarantees as immunity is concerned person. Art. 9 (Reciprocity) 1. The Law Commissioner, if the application is from a country with which there are no international conventions on the subject, within 30 days of receiving the application sent to the Secretary of State for Justice, a technical report certifying the possession or otherwise of the legal requirements of the request submitted. 2. The Secretary of State for Justice, by a resolution to that effect of the State Congress, may refuse to act on the letter rogatory if the requesting State does not give adequate guarantees of reciprocity. The Secretary of State for Justice, by a resolution to that effect of the State Congress, should circumstances so require, will demand from the requesting State a guarantee of reciprocity. 3. In case of irregular demand, the demand for integration will be forwarded after the congressional decision to pay or not the requested collaboration. 4. The resolution of the State Congress granting or refusing the execution of an application to a State where there are no international conventions, as well as its Communication of Secretary of State for Justice, are not subject to any appeal. 5. If the Secretary of State for Justice informs the Law Commissioner the intention of the Republic to grant the letter of request to a State where there are no international conventions, the 60-day period referred to in Article 8 of this Act to issue a decree for enforcement, it will run from receipt of the notice of the Secretary of State. 3 Art. 10 (Suspension) 1. The execution of the letters rogatory is suspended by the Law Commissioner motivated decree whether it could jeopardize investigations in criminal proceedings in the Republic. Such suspension shall be communicated to the judicial authorities of the requesting State. Art. 11 (partially granted the request) 1. Before refusing or postponing the letters rogatory, the Commissioner of the Currency Law, by consultation with the judicial authorities of the requesting State, if the request can be accepted in part. Art. 12 (Specialty principle) 1. The Law Commissioner shall grant legal aid providing that the results of the investigation, the information, the acts and documents submitted are not, without prior consent, used or disclosed to third parties by the requesting State purposes other than those specified in the application. Art. 13 (Lex loci) 1. The Republic performs the letters rogatory in the manner provided by its law. 2. The acquisition of documentation copy constitutes kidnapping. 3. Pending adoption of the enforcement decree is applicable, unless otherwise requested in this advanced way by the requesting State, the discipline outlined in Article 5 paragraphs 1 and 2 of the Law 17 June 2008 n. 93, subject to the provisions of Article 30 last paragraph of this law. Art. 14 (Exceptions to the principle of lex loci) 1. If the requesting State has made a demand that the witnesses or experts to give evidence under oath, the Law Commissioner will give you followed only if the San Marino law does not prohibit it. 2. If the requesting State expressly so requests and the law provides for the San Marino, taking all other means of proof may be in the forms required. Art. 15 (Form of the required documents) 1. The Law Commissioner transmit only certified true copies or photocopies of the records or documents requested. 2. If the requesting State expressly ask the transmission of documents or original documents, it will comply with the request if possible and with the obligation of the requesting State to return them as soon as possible, unless the Republic will not give up. 3. The Law Commissioner may postpone the delivery of acts or documents of which the original transmission was requested, if they are required for criminal proceedings in progress. 4 Art. 16 (information to the requesting State) 1. If the requesting State expressly so requests, the Law Commissioner informing him of
date and place of execution of the letters rogatory. Art. 17 (Confidentiality) 1. Outside of what is necessary for execution of the request, the Requesting State may require that the Republic keep confidential the subject of the request made. 2. If the execution of the application will have the law of San Marino adopting procedural guarantees incompatible with the requirement of confidentiality required, the Law Commissioner shall promptly inform the requesting State. 3. Where as a result of the confidential transmission to be opened for the Republic a criminal file, apply for exclusive grounds for international cooperation and for the three months period, the discipline outlined in Article 5 paragraphs 1 and 2 of the Law 17 June 2008 n. 93. 4. If subsequent to the submission reserved to be opened for the Republic an independent criminal file and the court deems applicable the system of temporary secrecy, are fully applied the rules and the terms of Article 5 paragraphs 1 and 2 of the Law 17 June 2008 n. 93 terms in which it is not calculated any period granted under the preceding paragraph. Art. 18 (costs) 1. The ordinary costs of complying with a request shall be borne by the Republic. 2. An exception to the general principle of free reimbursement of expenses relating to the intervention of experts and texts within the State and requested the transfer of detained persons. Art. 19 (Notification of procedural and judicial decisions) 1. The Republic shall give the notification of procedural acts and judicial decisions forwarded to it for this purpose by the requesting State. 2. If the requesting State expressly so requests, the Law Commissioner has notified in the manner provided by domestic law for similar broadcasts, or in a special form still provided by the San Marino legislation. 3. The proof of service is carried out by means of a receipt dated and signed by the recipient or by a declaration of the Republic determining the fact, form and date of delivery. 4. One or the other of these documents is sent to the requesting State. At the request of the requesting State, the Republic will specify whether the notification was made in accordance with its law. If delivery has not taken place, the Law Commissioner shall immediately notify the reason to the requesting State. Art. 20 (Entering an appearance of witnesses and experts) 1. Without prejudice to the provisions to the contrary contained in bilateral conventions in force for the Republic, the witness or expert who fails to comply with a summons which has been applied for the transmission, it can not be subjected to any punishment or measure of restraint, unless you 5 then he voluntarily enters the territory of the requesting State and is there again duly summoned. Art. 21 (Reimbursement of expenses for texts or experts) 1. Except for different criteria contained in bilateral conventions in force for the Republic, allowances payable and the travel and subsistence expenses to be reimbursed to the witness or expert by the State applicant shall be calculated from the place of residence and are granted at rates at least equal to those provided in the rates and regulations in force in the country where the hearing is to take place. Art. 22 (Immunity of witnesses or experts) 1. A witness or expert, whatever his nationality, that following a summons to appear before the judicial authorities of the requesting State may be prosecuted or detained or subjected to any other restriction of his personal liberty in the territory of the requesting State for acts or convictions prior to his departure from the territory of the Republic. 2. The immunity provided for in this Article shall cease when the witness or expert, having had the opportunity, did not leave the territory of the requesting State fifteen days from the time when his presence is no longer required by the judicial authorities or, having left, he has voluntarily returned. Art. 23 (Terms of reference relating to the defendant) 1. The summons to an accused person who is on the territory of San Marino must reach the competent authority of the Republic at least 40 days before the date set for appearance. Art. 24 (Immunity of the defendant) 1. No person, whatever his nationality, summoned before the judicial authorities of the requesting State to answer for facts, for which it is the object of pursuit, will be prosecuted, detained or subjected to any ' other restriction of his personal liberty for acts or convictions prior to his departure from the territory of the Republic and not specified in the summons.
2. The immunity provided for in this Article shall cease when the person prosecuted, having had the opportunity, did not leave the territory of the requesting State fifteen days from the time when his presence is no longer required by the judicial authorities or, having left there has voluntarily returned. Art. 25 (Appearance of the detained person) 1. A person in custody, of which the application requesting State the personal appearance as a witness or for the execution of a comparison, will be temporarily transferred to the territory of the State where the hearing must have place, with obligation to return as soon as possible and subject to the provisions relating to the immunity provided for by articles 22 and 24 of this Act to the extent that the same can be applied. 2. The transfer shall be postponed if the presence of the person in custody is required in criminal proceedings taking place on the territory of the Republic. 6 3. In the case provided in the preceding paragraph and in accordance with the requirements for the execution of requests, transit of the person in custody through the territory of a third State, will be granted on application, accompanied by all necessary documents, addressed by the Ministry of Justice of the requesting State to the Ministry of Justice of the requested State of transit. 4. The person transferred shall remain in custody in the territory of the requesting State and, where applicable, in the territory of the State requested transit. 5. The period spent in custody by the person in custody transferred abroad to be heard required, counts as period atoned for internal conviction. Art. 26 (Delivery and return of objects) 1. The Law Commissioner may postpone the delivery of objects of which was applied for transmission, if these are required for criminal proceedings under way in the Republic. 2. Items that are handed over in execution of letters rogatory shall be returned as soon as possible by the requesting State to the Republic, unless the latter waives. Art. 27 (Trade in sentences) 1. The Republic, in response to specific requests from the relevant foreign judicial authorities, provides information about criminal judgments recorded in the criminal record. Art. 28 (Drawback of application) 1. The letters rogatory without prejudice to the different direct transmission mode under the provisions of bilateral conventions in force for the Republic, are returned through the Secretary of State for Justice, which shall return them to the Ministry of Justice of the requesting State. CHAPTER II APPEALS Art. 29 (Appeal against the decree of denial) 1. The decree motivated denial or partial execution of the letters rogatory may be appealed on legal grounds to the Judge for the Third Criminal Instance, by the Attorney of the Treasury within the term of 10 days from notification of the decree. Art. 30 (Appeals challenging the enforcement decrees) 1. The enforcement decrees notification-only can not be appealed. 2. An appeal against the decree of enforcement which does not have coercive measures, subject to the rules provided for in the preceding paragraph, the Prosecutor of the Treasury may propose on legal grounds, appeal in writing to the Judge for the Third Criminal Instance within ten days of receipt of notification of the enforcement decree. 3. They allowed all claims under national law against the enforcement decrees that have coercive measures. Interested parties, through an attorney licensed to practice law in the Republic 7 from whom must elect legal domicile, and the Prosecutor of the Treasury, may submit a complaint in writing about the existence of the requirements referred to in Title I and Title II Chapter I of this Act, the Judge of Appeal, penalty within ten days of receipt of notification of the enforcement decree. 4. The presentation of the procedures specified in the preceding paragraphs, suspend the execution of letters rogatory. 5. The Prosecutor of the Treasury in the cases referred to in paragraph two of this Article and the Prosecutor of the Treasury and interested parties in the cases referred to in the third paragraph of this Article, may be examined in the following ten days of submission of the application, the request for legal assistance or parts of it does not expressly reserved. After this date, the Law Commissioner shall transmit the file to the relevant courts. Art. 31 (Procedure in case of complaint) 1. Within ten days after the file transmission, the Judge of Appeal,
Penalty grants ten days to the parties concerned and to the tax authorities for the Prosecutor to file any final statements. 2. The Judge of Appeal, decides on the complaint brought by order within a period of fifteen days from the day of receipt of final statements. Art. 32 (Direct procedure before the Judge for the Third Instance Criminal) 1. The use of the Treasury Attorney against the partial execution decree of denial of the letters rogatory as well as that made against the decree of enforcement which does not have coercive measures, must be referred to the Judge for the Third Criminal Instance, be in writing and contain: 1) a clear and detailed statement of the facts; 2) the supporting references deemed necessary; 3) the reasons in law to support the instance; 4) the clear and detailed indication of the requested decision. 2. The Judge of the Third Criminal Instance fixed the hearing for debate to be held no later than twenty days. 3. The Prosecutor of the Treasury, may submit further briefs and deductions up to five days before the date set for the hearing to discuss. 4. The Judge for the Third Criminal Instance decided with a judgment must be filed within ten days from the hearing discussion. 5. The judgment shall be notified to the Prosecutor of the Treasury. The file is then transmitted to the Law Commissioner, Judge of letters rogatory, for the execution of such measures arising as a result of the final judgment. Art. 33 (procedure of last instance before the Judge of the Third Criminal Instance) 1. Within 30 days of receipt of notification of the order of the Criminal Appeal, Judge, interested parties, through an attorney authorized to practice forensic in the Republic of San Marino from which must elect legal domicile, and the Prosecutor of the Treasury, may propose for reasons of legitimacy use of the Third Instance Criminal Judge. 2. The appeal, addressed to the Judge for the Third Instance Criminal and be in writing, must contain: 1) a clear and detailed statement of the facts; 8 2) the supporting references deemed necessary by the applicant; 3) the reasons in law to support the instance; 4) the clear and detailed indication of the requested decision. 3. The Law Commissioner, Judge of letters rogatory, it offers the service of the application to all concerned, to the Prosecutor of the Treasury, which carried forward the dossier to the Judge for the Third Criminal Instance. 4. The Judge for the Third Criminal Instance accorded to those concerned and to the Prosecutor of the Treasury, the ten-day period for filing any briefs and deductions. 5. Once the deadline referred to in the previous paragraph, the Judge for the Third Criminal Instance fixed the hearing for debate which must be held no later than twenty days. 6. The Judge of the Third Criminal Instance decided with a judgment must be filed within ten days from the hearing discussion. 7. The judgment is notified to the parties concerned and the Prosecutor of the Treasury. The file is then transmitted to the Law Commissioner, Judge of letters rogatory, for the execution of such measures resulting following the final judgment of the Third Degree. TITLE III rogatory ABROAD Art. 34 (Transmission of letters rogatory to foreign authorities) 1. Without prejudice to the different provisions contained in international conventions in force for the Republic which provide for the direct transmission between judicial authorities, the holder of the investigation magistrate if this is necessary for the performance of the same, forward to the competent foreign authorities requests relating to criminal proceedings which have as their object the execution of acts of investigation or transmission of evidence, records or documents, submitting them to the Secretary of State for Justice, which It provides forwarding through the diplomatic channel to the Ministry of Justice of the requested State. 2. If the requested State, to give effect to the request for legal assistance, require a guarantee of reciprocity, the Secretary of State for Justice, after congressional resolution to that effect, within the limits provided by this Act, or less guarantees reciprocity the requested State. Art. 35 (Application limits for the actions of a foreign state) 1. Subject as provided by the rules of law regarding the validity and usability of acts, do not allow the use of judicial assistance requested and undertaken to ' abroad in violation of the conditions and restrictions that may be placed by the foreign State. 2. All terms for any claims resulting from the seizures abroad regime
secrecy shall be suspended and shall become payable from the communication to the parties of the termination of the secrecy regime. 3. An appeal against the decree of formal acquisition of evidence that has coercive measures, interested parties and the Prosecutor of the Treasury, may propose to the grounds provided for by domestic law, the complaint in writing to the Judge of Appeal, penalty within ten days of receipt of notification of the decree, ended any phase carried out in secrecy regime. It applies the procedure outlined in Article 31 of this Act and, in case of further appeal in third instance, that of Article 33 of this Law. 9 Art. 36 (temporary immunity of the person summoned as a witness, expert or defendant) 1. In cases where the request deals with the citation of a witness, expert or an accused to the judicial authorities of San Marino, the person others, if they are, can not be subjected to restriction of personal freedom in the execution of a sentence or a detention order or subjected to any restriction of personal liberty for acts prior to notification of the proceedings. 2. The immunity provided for in paragraph 1 shall cease when the witness, the expert or the accused, having had the opportunity, did not leave the territory of the State fifteen days from the time when his presence is no longer required by the judicial or, having left, he has voluntarily returned. Art. 37 (coordination rules) 1. Article 5 of Law 93 of June 17, 2008 is added the following paragraph: "7. In case of secrecy of the investigation, if the investigating judge requested judicial assistance to a foreign authority, the period of investigation secrecy foreseen in the third paragraph, is suspended from the date of its sending of letters rogatory to the day of the receipt of the response. ". 2. In Article 8 of Law 93 of June 17, 2008 is added the following paragraph: "6. According to Article 36, paragraph 5 of Law 165 of 17 November 2005, bank secrecy can not be invoked in the trial. And 'it repealed any other otherwise provided by law. "Art. 38 (Repeals) 1. It repealed every norm as opposed to the present law. Art. 39 (Final Provisions) 1. This law comes into force on the fifteenth day following that of its legal publication. Our Residence, this day of July 30 2009/1708 THE CAPTAINS REGENT Massimo Cenci - Oscar Mina THE SECRETARY OF STATE FOR INTERNAL AFFAIRS Valeria Ciavatta 10