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Treaty between Canada and the Kingdom of the Netherlands on Mutual Assistance in Criminal Matters [1992] CATSer 12 (1 May 1992)

E101636 - CTS 1992 No. 9

TREATY BETWEEN CANADA AND THE KINGDOM OF THE NETHERLANDS ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

The Government of Canada and the Government of the Kingdom of the Netherlands,

Desiring to make more effective the cooperation between the two countries in the investigation, prosecution and suppression of crime by making provision for mutual assistance in criminal matters,

have agreed as follows:

ARTICLE 1

Definitions

For the purposes of this Treaty,

"central authority" means:

a) for Canada: the Minister of Justice;

b) for the Kingdom of the Netherlands: the Minister of Justice of the Netherlands, the Minister of Justice of the Netherlands Antilles, or the Minister of Justice of Aruba, as the case may be;

"offence" means:

a) in relation to Canada, any offence created by a law of Parliament or any offence created by the legislature of a province;

b) in relation to the Kingdom of the Netherlands, any offence created by the legislature of the Netherlands, the Netherlands Antilles or Aruba.

ARTICLE 2

Scope of Application

1. The Parties shall provide, in accordance with the provisions of this Treaty, mutual assistance in all matters relating to the investigation, prosecution and suppression of offences.

2. Assistance shall include:

a) providing information and objects;

b) locating or identifying persons and objects;

c) examining sites;

d) serving documents;

e) taking statements and testimony of persons and obtaining other evidence;

f) executing requests for search and seizure to obtain evidence;

g) providing documents and records;

h) making available prisoners and other persons to testify or assist investigations; and

i) locating, restraining and forfeiting the proceeds of crime and other property and enforcing payment of fines.

ARTICLE 3

Other Assistance

This Treaty shall not preclude assistance being provided pursuant to other agreements or arrangements between the Parties or practices established by their authorities.

ARTICLE 4

Requests

1. Requests and responses thereto shall be made in writing and shall be transmitted directly between the central authorities.

2. In urgent circumstances, where permitted by the central authority of the requested State, copies of responses may be conveyed directly to the competent authority of the requesting State on whose behalf the request was made.

ARTICLE 5

Contents and Language of Requests

1. Requests for assistance shall include:

a) the name and function of the competent authority conducting the investigation or proceedings to which the request relates;

b) except in cases of requests for service of documents, a description of the nature of the investigation or proceedings, including a statement setting out the relevant facts and laws;

c) the purpose for which the request is made and the nature of the assistance sought;

d) details of any particular procedure or requirement that the requesting State wishes to be followed;

e) specification of any time limit within which compliance with the request is desired and the reasons therefore; and

f) any special requirements for confidentiality and the reasons therefore.

2. Requests for assistance shall also, in the appropriate case, contain the following:

a) the identity, nationality and location of the person or persons who are the subject of the investigation or proceedings;

b) a statement as to whether sworn or affirmed evidence is required;

c) a description of the documents, records or articles of evidence to be produced as well as a description of the appropriate person to be asked to produce them and, to the extent not otherwise provided for, the form in which they should be produced and certified or authenticated;

d) a description of the place to be searched and the objects to be seized; and

e) information as to the allowances and expenses to which a person appearing in the requesting State will be entitled.

3. The requested State may request additional information considered necessary to fulfill the request.

4. All requests shall be accompanied by a translation into an official language of the requested State.

ARTICLE 6

Refusal or Postponement of Assistance

1. Assistance may be refused when in the opinion of the requested State:

a) its authorities would be precluded by domestic law from carrying out the assistance requested, had the acts or omissions which are referred to in the request occurred in its own jurisdiction; or

b) the execution of the request would impair its sovereignty, security or similar essential public interests, prejudice the safety of any person or impose an excessive burden on its resources.

2. Assistance may also be refused for any reason provided by the law of the requested State.

3. The requested State may postpone assistance if the execution of the request would interfere with an investigation or proceeding in the requested State.

4. The requested State shall:

a) promptly inform the requesting State of the reason for a denial or postponement of assistance; or

b) consult, if appropriate, with the requesting State to determine whether assistance may be given, subject to such terms and conditions as the requested State deems necessary.

ARTICLE 7

Execution of Requests

A request shall be executed expeditiously and in accordance with the law of the requested State. Procedures specified in the request, even if unfamiliar to the requested State, shall be followed except to the extent prohibited by the laws of the requested State.

ARTICLE 8

Protecting Confidentiality

1. At the request of the requesting State, the requested State shall keep confidential a request, its contents, supporting documents and any action taken pursuant to the request, except to the extent necessary to execute it.

2. If the request cannot be executed without breaching confidentiality requirements stated in the request, the requested State shall so inform the requesting State which shall then determine whether the request should nevertheless be executed.

ARTICLE 9

Taking of Testimony and Statements in the Requested State

1. Where the taking of testimony of a person is requested, the requesting State may require that person's testimony to be taken under oath or affirmation. For this purpose that person shall, if necessary, be compelled to appear and testify in accordance with the law of the requested State.

2. Whether or not the testimony of a person is requested to be taken under oath or affirmation:

a) the requesting State may specify any particular questions to be put to that person;

b) the requested State may permit the presence of the accused, counsel for the accused and any competent authority of the requesting State, as specified in the request, at the execution of the request;

c) the competent authority of the requested State shall permit questions to be put to the person called to testify by any person allowed to be present at the execution of the request.

3. A person who is required to give testimony may decline to answer where:

a) the law of the requested State would permit or require that person to decline to answer in similar circumstances in proceedings which originated in the requested State; or

b) where the law of the requesting State would permit or require that person to decline to answer in such proceedings in the requesting State.

4. If a person who is required to give testimony in the requested State claims that there is a right or obligation to decline to answer under the law of the requesting State, the requesting State shall provide to the requested State a certificate of a person designated by the central authority of the requesting State with respect thereto.

ARTICLE 10

Search, Seizure and Production of Evidence

1. The requested State shall insofar as its law permits carry out requests for search, seizure or the production of documents, records or articles and transfer any material thus obtained, or copies thereof, to the requesting State, provided that the request contains such information as would allow such measure under the law of the requested State.

2. The requested State shall provide such information as may be required by the requesting State concerning the production, search and seizure, including the place of seizure, the circumstances of seizure, and the subsequent custody of the material seized or produced.

3. The requesting State shall observe any conditions imposed by the requested State in relation to any property which is transferred to the requesting State pursuant to this article.

ARTICLE 11

Availability of Prisoners to Testify or Assist Investigations in the Requesting State

1. A prisoner in the requested State whose presence is requested in the requesting State to testify or to assist an investigation may be transferred for that purpose, provided the person consents.

2. The requesting State shall have the authority and duty to keep the person in custody and return the person to the custody of the requested State as soon as the person's presence is no longer required.

3. Where the sentence imposed on a person transferred under this article expires while the person is in the requesting State, that person shall be released and thereafter treated as a person referred to in article 12.

ARTICLE 12

Availability of other Persons to Testify or Assist Investigations in the Requesting State

1. A request may be made for assistance in making a person available to testify or to assist an investigation in the requesting State.

2. The requested State shall, if satisfied that appropriate arrangements for that person's safety will be made by the requesting State, invite the person to assist in the investigation or to appear as a witness in proceedings and seek that person's concurrence thereto.

ARTICLE 13

Safe Conduct

1. This article applies to persons who consent to testify or to assist an investigation in the requesting State pursuant to requests under article 11 or 12.

2. Such a person shall not, while in the requesting State:

a) be detained, prosecuted or punished in that State for any offence, or be subject to any civil suit to which the person could not otherwise be subjected, in respect of any act or omission which preceded the person's departure from the requested State;

b) without the person's consent be required to testify in any proceeding other than the proceeding to which the request relates.

3. Paragraph 2 shall cease to apply if the person, being free to leave, has not left the requesting State within a period of fifteen days after having been officially informed that further attendance is no longer required or, having left the requesting State, has returned.

4. A person appearing before an authority in the requesting State shall not be subject to prosecution based on the testimony given, except in relation to perjury.

5. A person appearing as a witness pursuant to a request of Canada may decline to answer if that person has a right to do so under the law of Canada. If that person, because of occupation, has a right or obligation not to answer under the laws of the Kingdom of the Netherlands because the answer required relates to protected information, the appropriate competent authorities of Canada shall seek to ensure that the person is not compelled to disclose such information.

6. A person appearing as a witness pursuant to a request of the Kingdom of the Netherlands may decline to answer if that person has, under the laws of the Kingdom of the Netherlands or Canada, a right or obligation to do so.

7. If a person in the requesting State claims that there is a right or obligation to decline to answer under the law of the requested State, the requested State shall provide to the requesting State a certificate of a person designated by the central authority of the requested State with respect thereto.

8. The requesting State shall advise a person whose testimony or assistance in an investigation is sought of that person's right to be informed of the rights, protections and obligations applicable to that person under the laws of the requesting State.

ARTICLE 14

Service of Documents

1. The requested State shall serve any document transmitted to it for the purpose of service.

2. The requesting State shall transmit a request for the service of a document pertaining to an appearance in the requesting State within a reasonable time before the scheduled appearance.

3. The requested State shall return a proof of service to the requesting State.

ARTICLE 15

Government Documents and Records

1. The requested State shall provide copies of publicly available documents and records of government departments and agencies.

2. The requested State may provide copies of any document, record or information in the possession of a government department or agency, but not publicly available, to the same extent and under the same conditions as would be available to its own law enforcement and judicial authorities.

ARTICLE 16

Forfeiture and Fines

1. Upon request, the requested State shall endeavour to locate any property of a person against whom a forfeiture order, pecuniary penalty order, or any other order having a similar effect, has been made or may be made by a court of criminal jurisdiction in the requesting State.

2. When notifying its intention to seek the enforcement of an order referred to in paragraph 1 on property located in the requested State, the requesting State may request that the requested State take such measures or initiate such proceedings as permitted by its law to prevent any dealing in, transfer or disposal of such property.

3. A request under paragraph 2 shall include, in addition to information referred to in article 5:

a) a statement attesting to the existence and terms of the order; and

b) information concerning the identity and nationality of the person who is the subject of the order.

The requested State shall inform the requesting State without delay of the action taken on the request.

4. Upon request, the requested State shall give effect to the extent possible under its domestic law, to an order referred to in paragraph 1 made by a court of the requesting State or to a fine imposed by such a court, or institute appropriate proceedings in relation to the property found in the requested State.

5. A request under paragraph 4 shall include, in addition to information referred to in article 5:

a) a certified copy of the order or sentence issued in the requesting State; and

b) a statement as to the extent to which the enforcement of the order or fine is requested.

6. Property obtained or fines recovered pursuant to this article shall be retained by the requested State unless otherwise mutually agreed in a particular case.

7. In the application of this article the rights of bona fide third parties shall be respected.

ARTICLE 17

Certification

The requested State shall, upon request, certify in a manner acceptable to the requesting State, copies of documents or records to be transmitted under this Treaty.

ARTICLE 18

Expenses

1. The requested State shall meet the expenses of fulfilling the request for assistance except that the requesting State shall bear:

a) the expenses associated with conveying any person to and from the territory of the requesting State and any fees, allowances or expenses payable to that person while in the requesting State pursuant to a request under article 11 or 12; and

b) the expenses associated with conveying custodial or escorting officers.

2. If it becomes apparent that the execution of the request requires expenses of an extraordinary nature, the Parties shall consult to determine the terms and conditions under which the requested assistance can be provided.

ARTICLE 19

Consultations

1. The Parties shall consult promptly, at the request of either, concerning the interpretation and the application of this Treaty.

2. The Parties may enter into subsidiary arrangements and develop practical measures with a view to facilitate the implementation of this Treaty.

ARTICLE 20

Territorial Application

1. As regards the Kingdom of the Netherlands, this Treaty shall apply to the territory of the Kingdom as a whole, subject to paragraph 2.

2. This Treaty shall not apply to assistance provided for in article 16 as between Canada and those parts of the Kingdom of the Netherlands outside Europe until the Kingdom of the Netherlands notifies Canada to the contrary.

ARTICLE 21

Entry into Force

1. This Treaty shall enter into force on the first day of the second month after the date on which the Contracting States have notified each other that their legal requirements have been complied with.

2. This Treaty shall apply to any requests presented after its entry into force even if the relevant acts or omissions occurred before that date.

ARTICLE 22

Termination

1. Either Party may terminate this Treaty at any time by written notification to the other Party. Termination shall become effective six months after the date of receipt of such notice.

2. Termination of this Treaty by the Kingdom of the Netherlands may be limited to one of its constituent parts.

IN WITNESS WHEREOF, the representatives of the two Governments, being authorized for this purpose, have signed this Treaty.

DONE at The Hague this 1^st May 1991 in duplicate in the English, the French and Dutch languages, each version being equally authentic.

FOR THE GOVERNMENT OF CANADA

Jacques Gignac

FOR THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS

Hans van den Broek