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RS 0.351.915.4 Treaty on Mutual Assistance in Criminal Matters of 10 November 2009 between the Swiss Confederation and the Argentine Republic

Original Language Title: RS 0.351.915.4 Traité d’entraide judiciaire en matière pénale du 10 novembre 2009 entre la Confédération suisse et la République argentine

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0.351.915.4

Original text

Treaty on Mutual Assistance in Criminal Matters between the Swiss Confederation and the Argentine Republic

Concluded on 10 November 2009
Approved by the Federal Assembly on 30 September 2011 1
Entered into force by exchange of notes on 16 February 2013

(State on 16 February 2013)

The Swiss Confederation and the Argentine Republic,

Hereinafter referred to as the Contracting States,

Wishing to conclude a Treaty on Mutual Assistance in Criminal Matters and thus cooperate more effectively in the search, prosecution and enforcement of offences,

Are conv E S of the following:

Title I General provisions

Art. 1 Obligation to grant mutual legal assistance

(1) The Contracting States undertake to grant, in accordance with the provisions of this Treaty, the widest measure of mutual legal assistance in any investigation or procedure relating to offences whose jurisdiction is the responsibility of the judicial authorities of The requesting State.

2. The Contracting States shall exchange and accept, by their Central Authorities, the list of competent authorities to submit requests for mutual legal assistance for the purposes of this Treaty.

The requested State shall not be able to invoke bank secrecy in order to refuse mutual legal assistance provided for in this Treaty.

4. Mutual legal assistance includes all measures taken in favour of criminal proceedings in the requesting State:

(a)
The receipt of testimony or other statements;
(b)
The furnishing of documents, records or evidence;
(c)
Screening, seizure and forfeiture of objects and values;
(d)
Exchange of information;
(e)
Search of persons and search;
(f)
Restitution of objects and values;
(g)
Notification of procedural acts;
(h)
The surrender of persons detained for the purpose of hearing or confrontation; and
(i)
Any other measure of mutual assistance compatible with the purposes of this Treaty and which is acceptable to the Contracting States.
Art. 2 Inapplicability

This Treaty shall not apply to the following cases:

(a)
The search, arrest or detention of a person prosecuted or criminally tried for his extradition;
(b)
The enforcement of criminal judgments.
Art. 3 Reasons to deny or defer execution of the application

Mutual legal assistance may be refused:

(a)
Whether the application relates to offences considered by the requested State either as political offences or as related offences to political offences;
(b)
The application relates to military offences which do not constitute common law offences;
(c)
Where the application relates to tax offences; however, the requested State has the option of responding to an application if the investigation or proceeding is aimed at a tax scam. If the application relates in part only to tax offences, the requested State may limit, for that part, the use of the information and evidence provided;
(d)
If the requested State considers that the execution of the application is such as to impair the sovereignty, security, public order or other essential interests of its country, as determined by its competent authority;
(e)
Whether the application relates to facts on the basis of which the person being prosecuted has been definitively acquitted or convicted in the State required for a corresponding infringement, as regards the essential condition, provided that the sanction imposed is in progress To run or have already been run
(f)
If there are serious grounds for believing that the request for assistance has been made for the purpose of prosecuting or punishing a person for reasons relating to his or her race, religion, ethnic origin, gender or political opinion or The application would be prejudicial to that person for any of those reasons;
(g)
There are serious grounds for believing that the criminal procedure against the person concerned does not respect the safeguards contained in international human rights instruments, in particular in the International Covenant on Human Rights 16 December 1966 on civil and political rights 1 .

(2) The requested State may defer mutual legal assistance if the execution of the application has the effect of prejudice to criminal proceedings under way in that State.

3. Before refusing or postponing assistance in accordance with this Article, the requested State shall:

(a)
Inform the requesting State promptly of the reason for refusing or postponing the aid; and
(b)
Examine whether mutual legal assistance may be granted on such terms as it deems necessary. If this is the case, these conditions will be met in the requesting State.

4. Any refusal of full or partial mutual legal assistance shall be justified.


Art. 4 Nature of the offence

For the purposes of this Treaty, the following shall not be regarded as political offences:

(a)
Tend to exterminate or oppress a group of people because of their nationality, race, confession or ethnic, social or political affiliation;
(b)
Appears particularly reprehensible by the fact that the author, for purposes of extortion or coercion, endangered or threatened to endanger the liberty, life or bodily integrity of persons, in particular by hijacking an aircraft, Hostage-taking or by means of mass extermination; or
(c)
Constitute a serious breach of international humanitarian law, in particular within the meaning of the Geneva Conventions of 12 August 1949 1 And their Additional Protocols 2 .

1 RS 0.518.12 /.23/.42/51
2 RS 0.518.521 /.522

Title II Letters rogatory

Art. 5 Applicable law

1. The application shall be executed in accordance with the law of the requested State.

(2) If the requesting State wishes a specific procedure to be applied in the execution of the request for assistance, the requesting State shall expressly request it and the requested State shall act upon it if its right does not preclude it.

Art. 6 Constraint Measures

(1) The execution of an application involving coercive measures may be refused if the facts described in the application do not correspond to the objective elements of a criminal offence under the law of the requested State, assuming that it has Was committed.

2. If double criminality is necessary in order to grant mutual legal assistance, this condition must be considered completed without taking into account whether the Contracting States place the offence in the same category, or if they qualify it with the Same terminology, provided that states repress the behaviour underlying the offence.

Art. 7 Provisional measures

1. Upon the express request of the requesting State, and if the procedure referred to in the application does not appear manifestly inadmissible or inopportune according to the law of the requested State, provisional measures shall be ordered by the competent authority of the State Required to maintain an existing situation, to protect threatened legal interests or to preserve evidence.

2. Where there is a danger in the home and the information provided is sufficient to examine whether all conditions are met, these measures may also be ordered as soon as an application is announced. Such measures shall be lifted if the requesting State does not file the request for assistance within the period specified for that purpose.

Art. 8 Presence of persons participating in the proceedings

If the requesting State expressly requests it, the Central Authority of the requested State shall inform it of the date and place of execution of the request. The authorities and persons concerned may attend the execution if the requested State consents.

Art. Witnesses' positions in the requested State

1. Witnesses shall be heard in accordance with the law of the requested State. However, they may also refuse to testify if the law of the requesting State permits.

2. If the refusal to testify is based on the law of the requesting State, the requested State shall send it the case for decision. That decision must be reasoned.

3. The witness who invokes a right to refuse to testify may not be subject to any legal sanction on that ground in the requesting State.

Art. 10 Furnishing of documents, files or other evidence

The Requested State shall furnish to the Requesting State, upon request of the Requesting State, objects, documents, files or evidence.

2. The requested State may transmit only copies of the requested documents, files or evidence. If the requesting State expressly requests the surrender of the originals, the requested State shall act upon it to the maximum extent possible.

3. The requesting State shall be required to return the originals of such documents as soon as possible and at the latest at the close of the proceedings, unless the requested State waives it.

4. The rights invoked by third parties on objects, documents, files or evidence in the requested State shall not prevent their surrender to the requesting State.

Art. 11 Court or training records

On request, the requested State shall make available to the authorities of the State requesting its records of courts or inquiry-including judgments and decisions-if such documents are important for judicial proceedings.

(2) The documents, records and means of evidence shall be furnished only if they relate exclusively to a case liquidated or, if not, to the extent deemed admissible by the Central Authority of the requested State.

Art. 12 Checking in objects and values

1. The objects and values which constitute the product or instrument of an offence committed and prosecuted by the requesting State and which have been seized by the requested State and the replacement property whose value corresponds to those goods Also be returned to the requesting State for confiscation, subject to the claims raised by a third party in good faith on these objects and values.

2. Restitution shall take place as a general rule on the final and binding decision of the requesting State.

Art. 13 Restricted use

1. The information, documents or objects obtained by way of mutual assistance may not be used in the Requesting State for the purposes of investigations or be produced as evidence in any criminal proceedings relating to an offence for which Mutual legal assistance cannot be provided.

(2) Any other use shall be subject to the prior approval of the Central Authority of the requested State. This approval is not required when:

(a)
The facts underlying the application constitute another offence for which mutual assistance is likely to be granted;
(b)
The foreign criminal procedure is directed against other persons who participated in the commission of the offence; or
(c)
The material is used for an investigation or proceeding concerning the payment of damages in connection with a procedure for which mutual legal assistance has been granted.

Title III Notification and appearance

Art. 14 Notification of procedural and judicial decisions

The requested State shall, in accordance with its legislation, proceed to the notification of the pleadings and judicial decisions which will be sent to it by the requesting State for that purpose.

2. Such notification may be effected by simple transmission of the act or decision to the addressee. If the requesting State expressly requests it, the requested State will make the notification in one of the forms provided for in its legislation for the analogous meanings or in a special form compatible with that legislation.

The proof of the notification shall be by means of a receipt dated and signed by the addressee or of a declaration of the requested State attesting to the fact, form and date of the notification. Any of these documents shall be immediately transmitted to the requesting State. Upon request of the latter, the requested State shall specify whether the notification has been made in accordance with its law. If the notification has not been made, the requested State shall immediately inform the requesting State of the ground.

(4) The request for the notification of a subpoena to a person prosecuted in the Requested State shall be sent to the Central Authority of that State no later than forty-five days before the date fixed for appearance.

Art. 15 Appearance of witnesses or experts in the requesting State

If the requesting State considers that the personal appearance of a witness or an expert before his judicial authorities is necessary, he shall make reference to it in the request for notification of the citation.

2. The addressee shall be invited by the Requested State to reply to the quotation. The requested State shall, without delay, communicate the reply of the addressee to the requesting State.

3. The addressee of the summons who accepts to appear in the Requesting State may require that State to make an advance for travel and subsistence expenses.

Art. 16 Allowances

The allowances to be paid, as well as the travel and subsistence expenses to be reimbursed to the witness or expert by the requesting State, shall be calculated from the place of residence and shall be granted at rates at least equal to those provided for by the Tariffs and regulations in force in the country where the hearing is to take place.

Art. 17 Failure to Appearance

The witness or expert who has not referred to a subpoena whose notification has been requested shall not be subject, even though that quotation contains injunctions, to no sanction or measure of constraint, unless he is Shall thereafter voluntarily return to the territory of the requesting State and shall not be regularly referred to therein.

Art. 18 Except-conduit

1. No witness or expert, of any nationality, who, following a quotation, will appear before the judicial authorities of the requesting State shall not be prosecuted, detained or subjected to any other restriction of his or her personal freedom In the territory of that State for acts or convictions prior to its departure from the territory of the requested State.

2. No person, of any nationality, quoted before the judicial authorities of the requesting State in order to respond to the facts for which it is the subject of prosecution, shall not be prosecuted, detained or otherwise subjected to any other Restriction of individual liberty for facts or convictions prior to departure from the territory of the requested State and not subject to the citation.

3. The protection provided for in this Article shall cease when the person who has done so, having had the opportunity to leave the territory of the Requesting State for thirty consecutive days, after his presence is no longer required, shall nevertheless be Remained in that territory or returned to it after leaving it.

Art. 19 Scope of testimony in the requesting State

1. The person who appears in the requesting State following a quotation cannot be compelled to testify or to produce evidence, where the right of either of the Contracting States allows him or her to refuse.

2. Art. 9, para. 2 and 3, and 13, paras. 1, apply by analogy.

Art. Remission of detained persons

1. Any person detained, whose personal appearance as a witness or for the purposes of confrontation is requested by the requesting State, shall be temporarily postponed to the territory where the hearing is to take place, subject to his dismissal in The time limit specified by the requested State and subject to the provisions of Art. 18, to the extent that they may apply.

2. Remission may be refused:

(a)
If the detained person does not consent to it;
(b)
Whether its presence is necessary in criminal proceedings in progress in the territory of the requested State;
(c)
Whether his surrender is likely to prolong his or her detention; or
(d)
If other overriding considerations preclude its surrender to the requesting State.

(3) If the penalty imposed on the person furnished under that article has been placed in the Requesting State, the Requested State shall order its liberty, in which case its situation shall be governed by the provisions of Art. 15 and the immunities provided for in Art. 18 will be granted.

4. The person surrendered shall remain in custody in the territory of the requesting State, unless the requested State requests his release.

5. The time during which the person will be held outside the requested State shall be taken into account in relation to his pre-trial detention and sentence.

Art. Hearing by video conference

1. If a person who is in the territory of the requested State is to be heard as a witness or expert by the judicial authorities of the requesting State, the requesting State may request, if it is inappropriate or impossible for the person to hear Appear in person on its territory, whether the hearing is held by video conference, in accordance with subs. 2 to 7 of this article.

2. The requested State consents to the hearing by video conference provided that the use of this method is not contrary to the fundamental principles of its right and provided that it has the technical means to carry out the hearing. If the requested State does not have the technical means for a video conference, the requesting State may make them available to the requested State with the consent of the latter.

3. Requests for hearing by video conference shall contain, in addition to the information indicated in Art. 25, the reason why it is inappropriate or impossible for the witness or expert to be present in person at the hearing, the name of the judicial authority and the persons who will proceed to the hearing.

4. The judicial authority of the requested State shall summon the person concerned in accordance with the forms provided for in its legislation.

5. The following rules apply to the video conference hearing:

(a)
The hearing takes place in the presence of a judicial authority of the requested State, assisted if necessary by an interpreter; that authority is also responsible for the identification of the person being heard and respect for the fundamental principles of the law of the State Required. If the judicial authority of the requested State considers that the fundamental principles of the right of the requested State are not respected during the hearing, it shall immediately take the necessary measures to ensure that the hearing continues In accordance with the said principles;
(b)
The competent authorities of the Contracting States shall, where appropriate, agree on measures relating to the protection of the person to be heard;
(c)
The hearing is carried out directly by the judicial authority of the requesting State, or under its direction, in accordance with its internal law;
(d)
At the request of the requesting State or the person to be heard, the requested State shall ensure that that person is, if necessary, assisted by an interpreter; and
(e)
The person to be heard may invoke the right not to testify which would be recognized by the law either of the requested State or of the requesting State.

6. Without prejudice to all the measures agreed on the protection of persons, the judicial authority of the requested State shall, at the end of the hearing, establish a record of the date and place of the hearing, the identity of the Person to be heard, the identities and qualifications of all the other persons of the Requested State who took part in the hearing, any oath and the technical conditions in which the hearing took place. This document shall be transmitted by the competent authority of the requested State to the competent authority of the requesting State.

(7) Each Contracting State shall take the necessary measures to ensure that, where witnesses or experts are heard on its territory, in accordance with this Article, and refuse to give evidence when they are required to do so, or make false statements Rules, its legislation applies as it would apply if the hearing took place in the context of a national procedure.

8. Each Contracting State may, if it so wishes, also apply the provisions of this Article, where appropriate and with the agreement of its competent judicial authority, to the hearings by video conference involving the person Criminal prosecution or the suspect. In such a case, the decision to hold the video conference and the manner in which it takes place shall be the subject of an agreement between the Contracting States and shall be in accordance with their national law and the relevant international instruments. Hearings involving the person being prosecuted or the suspect may only take place if they consent to it.

Title IV Criminal record and exchange of notice of conviction

Art. Criminal Record and Notice of Conviction Exchange

1. The Requested State shall communicate, to the extent that its authorities may themselves obtain them in such cases, extracts from the criminal record or any information relating to the latter which will be requested by the requesting State for the purposes of Criminal case.

2. In cases other than those provided for in s. 1 of this Article, such request shall be given in accordance with the conditions laid down in the legislation, the regulations or the practice of the requested State.

(3) Each Contracting State shall give the other State notice of the criminal sentences and subsequent measures concerning nationals of that State and have been the subject of an entry in the criminal record.

Title V Procedure

Art. Central Authority

For the purposes of this Treaty, the Central Authority is, for Switzerland, the Federal Office of Justice of the Federal Department of Justice and Police and, for Argentina, the Ministry of Foreign Affairs, International Trade and Cult by Requests for mutual legal assistance will be submitted and received.

2. The Central Authorities of the Contracting States shall communicate directly with each other; however, diplomatic channels shall remain reserved in the event of need.

Art. 24 Transmission channels and form

The request for assistance must be in writing. In case of urgency it may be transmitted by fax, by electronic means of communication or by the International Criminal Police Organisation, and must be confirmed by sending the original request.

Art. 25 Contents of the application

1. The application shall contain the following particulars:

(a)
The authority from which it emanates and, where appropriate, the authority responsible for criminal proceedings in the requesting State;
(b)
The purpose and reason for the request;
(c)
A detailed description of the assistance required;
(d)
To the extent possible, the full name, place and date of birth, nationality and address of the person who is the subject of the criminal procedure at the time of application;
(e)
The primary purpose for which the evidence or information is requested; and
(f)
Except in the case of a request for notification within the meaning of Art. 14, the application shall contain a description of the facts giving rise to the investigation in the requesting State-the date, place and circumstances in which the offence was committed-and the link between the facts referred to in the application Assistance and action required.

2. In addition, the application will contain:

(a)
In the case of the application of foreign law at the time of enforcement in accordance with Art. 5, para. 2, the text of the legal provisions applicable in the requesting State and the reason for its application;
(b)
In the case of a person's participation under s. 8, the designation of the person to assist in the execution of the application and the reason for its presence;
(c)
In the case of notification of acts of procedure and of quotations, as provided for in Art. 14 and 15, the name and address of the recipient of the documents and the quotations to be given;
(d)
In the case of the citation of witnesses or experts, in accordance with Art. 15, an indication that the requesting State is responsible for the costs and allowances and that it will pay an advance if requested;
(e)
In the case of surrender of persons detained pursuant to s. 20 the name of the latter;
(f)
In the case of a hearing by video conference according to Art. 21, the reason why it is inappropriate or impossible for the witness or expert to appear as well as the name of the judicial authority and the persons who will conduct the hearing.
Art. 26 Executing the request

(1) If the request is not in conformity with the provisions of this Treaty, the Central Authority of the requested State shall without delay inform the Central Authority of the requesting State, asking it to amend or complete it. Remains the adoption of interim measures within the meaning of s. 7.

(2) If the Central Authority of the requested State considers that the request has been made in accordance with this Treaty, it shall without delay take the necessary measures for its implementation.

3. After the execution of the request, the competent authority shall forward the request to the Central Authority of the requested State, together with the information and evidence obtained. The Central Authority shall ensure that the request has been duly executed and shall communicate the results to the Central Authority of the requesting State.

4. Le par. 3 does not prevent a partial execution of the request for mutual legal assistance.

Art. 27 Dispensation of legalization and authentication and other formalities

1. Documents, records, statements or other evidence transmitted under this Treaty shall be exempt from legalization, authentication and other formalities.

2. Documents, files or statements or other evidence transmitted by the Central Authority of the Requested State shall be accepted as evidence without further formality or attestation of authenticity.

3. The letter of transmission of the Central Authority guarantees the authenticity of the documents transmitted.

Art. 28 Language

1. The requests for assistance and its attachments shall be in the language of the requesting State and shall be accompanied by a translation into the language of the requested State in case of case by the Central Authority.

(2) The translation of documents prepared or obtained in the course of the execution of the application shall be the responsibility of the requesting State.

Art. Fees for the execution of the application

The requesting State shall, at the request of the requested State, reimburse only the following expenses incurred for the purpose of carrying out an application:

(a)
Witnesses' allowances, travel and subsistence expenses;
(b)
Expenses related to the transportation of detained persons;
(c)
Fees, travel and subsistence expenses and expenses related to the consultant;
(d)
The cost of establishing the video link, the costs related to the making available of the video link in the requested State, the remuneration of the interpreters it provides and the allowances paid to witnesses as well as their travel expenses in The requested State, unless the Contracting States otherwise agree.

2. If it becomes apparent that the execution of the application will result in extraordinary costs, the requested State shall inform the requesting State in order to determine the conditions to which the execution of the application will be subject.

Title VI Transmission without application; denunciation for the purpose of prosecution and confiscation

Art. Transmission of evidence and information without request

1. Within the limits of their national law, the authorities may, through the respective Central Authorities, without an application to that effect, exchange information and evidence concerning criminal matters In the course of their own investigation, where they consider that such transmission is such as to enable the receiving Contracting State to:

(a)
To apply for mutual legal assistance within the meaning of this Treaty;
(b)
Opening a criminal prosecution; or
(c)
Facilitate the conduct of an ongoing criminal investigation.

2. The authority which provides the information and the means of evidence may, in accordance with its national law, submit its use by the receiving authority under certain conditions. The receiving authority is required to comply with these conditions.

Art. Denunciation for prosecution and confiscation

(1) Any denunciation by a Contracting State for the purpose of prosecution in the courts of the other State or of confiscation of property derived from an offence shall be the subject of communications between the Central Authorities.

2. The Central Authority of the Requested State shall make known the action given to that denunciation and shall transmit, where appropriate, a copy of the decision taken.

3. The provisions of s. 27 will apply to denunciations provided for in s. 1 of this article.

Art. 32 Translation

Transmission without application in accordance with Art. 30 and the denunciation according to Art. 31 are translated; however, their annexes are provided for translation.

Title VII Final provisions

Art. 33 Other agreements or arrangements

(1) The provisions of this Treaty shall not affect a more extensive mutual assistance that would have been or would have been agreed between the Contracting States in other agreements or arrangements, or that would result from their domestic legislation or from a good practice Established.

2. Art. XV, XVI and XVII of the Extradition Treaty between the Swiss Confederation and the Argentine Republic of 21 November 1906 1 Shall be repealed from the entry into force of this Treaty.


Art. 34 Consultations

If deemed necessary, the Central Authorities shall exchange, orally or in writing, opinions concerning the application or enforcement of this Treaty in general or in a particular case.

Art. 35 Dispute Settlement

Disputes between the Contracting States concerning the interpretation or application of the provisions of this Treaty shall be settled by diplomatic means.

Art. 36 Entry into force and termination

(1) This Treaty shall enter into force on the sixtieth day after the date on which the Contracting States notify each other of the completion of their constitutional procedures required for that purpose.

(2) One of the two Contracting States may denounce this Treaty at any time by sending to the other State a written notice of denunciation by diplomatic means. The denunciation shall take effect six months after the date of receipt of the said notice. However, the denunciation will not affect the cases of mutual legal assistance in progress.

In witness whereof The undersigned, duly authorized by their respective Governments, have signed this Treaty.

Thus done in Buenos Aires on 10 November 2009 in duplicate, in French and in Spanish, both texts being equally authentic.


For the

Swiss Confederation:

For the

Argentine Republic:

Carla Del Ponte

Jorge Enrique Taiana


RO 2013 503 ; FF 2011 559



Status on February 16, 2013