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Treaty between Canada and the Republic of Korea on Mutual Assistance in Criminal Matters [1995] CATSer 2 (1 February 1995)

E101642 - CTS 1995 No. 3

TREATY BETWEEN CANADA AND THE REPUBLIC OF KOREA ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

Canada and the Republic of Korea,

DESIRING to improve the effectiveness of both countries in the prevention, investigation, prosecution and suppression of crime through cooperation and mutual assistance in criminal matters,

HAVE AGREED as follows:

PART I

GENERAL PROVISIONS

ARTICLE 1

Obligation to Grant Mutual Assistance

1. The Contracting Parties shall, in accordance with the provisions of this Treaty, grant each other the widest measure of mutual assistance in criminal matters.

2. Mutual assistance for the purpose of paragraph 1 shall be any assistance given by the Requested Party in respect of prevention of crime, investigations or proceedings in the Requesting Party in a criminal matter, irrespective of whether the assistance is sought or to be provided by a court or some other authority.

3. Criminal matters for the purpose of paragraph 1 mean, for the Republic of Korea, investigations or proceedings relating to any offence provided for in the laws of the Republic of Korea and, for Canada, investigations or proceedings relating to any offence created by a law of Parliament or by the legislature of a province.

4. Criminal matters shall also include investigations or proceedings relating to offences concerning taxation, customs duties, foreign exchange control or any other revenue matters.

5. Assistance shall include:

(a) taking testimony and statements from persons;

(b) provision of information, documents and other records, including criminal records, judicial records, publicly available government records and articles of evidence;

(c) locating persons and objects, including their identification;

(d) search and seizure;

(e) delivery of property, including lending of exhibits;

(f) making detained persons and others available to give testimony or assist investigations;

(g) service of documents, including documents seeking the attendance of persons;

(h) measures to locate, restrain and forfeit the proceeds of crime; and

(i) other assistance consistent with the objects of this Treaty.

ARTICLE 2

Execution of Requests

Requests for assistance shall be executed promptly in accordance with the law of the Requested Party and, insofar as it is not prohibited by that law, in the manner requested by the Requesting Party.

ARTICLE 3

Refusal or Postponement of Assistance

1. Assistance may be refused by the Requested Party if, in the opinion of the Requested Party;

(a) the request relates to a political offence;

(b) the execution of the request would impair its sovereignty, security, public order or similar essential public interest, prejudice the safety of any person or be unreasonable on other grounds;

(c) there are substantial grounds leading the Requested Party to believe that compliance would facilitate the prosecution or punishment of the person to whom the request refers on account of his race, religion, nationality or political opinions;

(d) the conduct which is the subject of the investigation, prosecution, or proceeding in the Requesting Party would not constitute an offence under the laws of the Requested Party.

2. Assistance may be postponed by the Requested Party if execution of the request would interfere with an ongoing investigation or prosecution in the Requested Party.

3. The Requested Party shall promptly inform the Requesting Party of a decision of the Requested Party not to comply in whole or in part with a request for assistance, or to postpone execution, and shall give reasons for that decision.

4. Before refusing to grant a request for assistance or before postponing the grant of such assistance, the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to these conditions, it shall comply with them.

PART II

SPECIFIC PROVISIONS

ARTICLE 4

Presence of Persons Involved in the Proceedings in the Requested Party

1. The Requested Party shall, upon request, inform the Requesting Party of the time and place of execution of the request for assistance.

2. To the extent not prohibited by the law of the Requested Party, judges or officials of the Requesting Party and other persons concerned in the investigation or proceedings shall be permitted to be present at the execution of the request and to participate in the proceedings in the Requested Party.

3. The right to participate in the proceedings shall include the right of any person present to pose questions through the judges or officials of the Requested Party. The persons present at the execution of a request shall be permitted to make a verbatim transcript of the proceedings by recording devices approved by the Requested Party.

ARTICLE 5

Transmission of Documents and Objects

1. When the request for assistance concerns the transmission of records and documents, the Requested Party may transmit certified true copies thereof, unless the Requesting Party expressly requests the originals.

2. The original records, documents or objects transmitted to the Requesting Party shall be returned to the Requested Party as soon as possible, upon the latter's request.

3. Insofar as not prohibited by the law of the Requested Party, documents, objects and records shall be transmitted in a form or accompanied by such certification as may be requested by the Requesting Party in order to make them admissible according to the law of the Requesting Party.

ARTICLE 6

Availability of Persons to Give Evidence or Assist Investigations in the Requesting Party

1. The Requesting Party may request that a person be made available to testify or to assist an investigation.

2. The Requested Party shall invite the person to assist in the investigation or to appear as a witness in the proceedings. That person shall be informed of any expenses and allowances payable. The Requested Party shall promptly inform the Requesting Party of that person's response.

ARTICLE 7

Making Detained Persons Available to Give Evidence or Assist Investigations

1. A person in custody in the Requested Party shall, at the request of the Requesting Party, be temporarily transferred to the Requesting Party to assist investigations or proceedings provided that both the person and the Requested Party consent to that transfer.

2. Where the person transferred is required to be kept in custody under the law of the Requested Party, the Requesting Party shall hold that person in custody and shall return the person in custody at the conclusion of the execution of the request.

3. Where the sentence imposed expires, or where the Requested Party advises the Requesting Party that the transferred person is no longer required to be held in custody, that person shall be set at liberty and be treated as a person present in the Requesting Party pursuant to a request under Article 6 seeking that person's attendance.

4. For the purposes of this Article, the person transferred shall receive credit for service of the sentence imposed in the Requested Party for time served in the custody of the Requesting Party.

ARTICLE 8

Safe Conduct

1. A person present in the Requesting Party in response to a request seeking that person's attendance shall not be prosecuted, detained or subjected to any other restriction of personal liberty in that Party for any acts or omissions which preceded that person's departure from the Requested Party, nor shall that person be obliged to give evidence in any proceeding other than the proceedings to which the request relates.

2. Paragraph 1 of this Article shall cease to apply if a person, being free to leave the Requesting Party, has not left it within a period of thirty days after being officially notified that that person's attendance is no longer required or, having left that territory, has voluntarily returned.

3. Any person who fails to appear in the Requesting Party may not be subjected to any sanction or compulsory measure in the Requested Party.

ARTICLE 9

Proceeds of Crime

1. The Requested Party shall, upon request, endeavour to ascertain whether any proceeds of a crime are located within its jurisdiction and shall notify the Requesting Party of the results of its inquiries. In making the request, the Requesting Party shall notify the Requested Party of the basis of its belief that such proceeds may be located in this jurisdiction.

2. Where, pursuant to paragraph 1 of this Article, suspected proceeds of crime are found, the Requested Party shall take such measures as are permitted by its law to restrain and forfeit such proceeds. In taking such measures, third party interests shall be protected.

PART III

PROCEDURE

ARTICLE 10

Contents of Requests

1. In all cases requests for assistance shall include:

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

(b) a description of the subject matter and nature of the investigation or proceedings, including a summary of the relevant facts and laws;

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

(d) the need, if any, for confidentiality and the reasons therefore; and

(e) any time-limit within which compliance with the request is desired.

2. To the extent necessary and possible, requests for assistance shall also contain the following information:

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

(b) details of any particular procedure or requirement that the Requesting Party wishes to be followed in executing the request and the reasons therefore;

(c) in the case of requests for the search and seizure, a statement indicating the basis for belief that items may be found in the jurisdiction of the Requested Party;

(d) in the case of requests to take evidence from a person, a statement as to whether sworn or affirmed statements are required, and a description of the subject matter of the evidence or statement sought;

(e) in the case of lending of exhibits, the person or class of persons who will have custody of the exhibit, the place to which the exhibit is to be removed, any tests to be conducted and the date by which the exhibit will be returned.

(f) in the case of making detained persons available, the person or class of persons who will have custody during the transfer, the place to which the detained person is to be transferred and the date of that person's return;

(g) any other information which may be brought to the attention of the Requested Party to facilitate the execution of the request.

3. If the Requested Party considers that the information contained in the request is not sufficient to enable the request to be dealt with, that Party may request that additional details be furnished.

4. A request shall be made in writing except that the Requested Party may accept an oral request in urgent situations. In any such situation, the request shall be confirmed in writing promptly thereafter unless the Requested Party agrees otherwise.

ARTICLE 11

Central Authorities and Channel of Communication

1. Central authorities shall transmit and receive all requests and responses thereto for the purposes of this Treaty. The central authority for Canada shall be the Minister of Justice or an official designated by that Minister; the Central authority for the Republic of Korea shall be the Minister of Justice or an official designated by that Minister.

2. The Central Authorities shall communicate through the diplomatic channel or directly with one another for the purposes of this Treaty.

ARTICLE 12

Limitation of Use and Confidentiality

1. The Requested Party may require, after consultation with the Requesting Party, that information or evidence furnished or the source of such information or evidence be kept confidential or be disclosed or used only subject to such terms and conditions as it may specify.

2. The Requesting Party shall not disclose or use information or evidence furnished for purposes other than those stated in the request without the prior consent of the central Authority of the Requested Party.

3. The Requested Party shall to the extent requested keep confidential a request, its contents, supporting documents and any action taken pursuant to the request except to the extent necessary to execute it or where the disclosure is specifically authorized by the Requesting Party in accordance with any terms and conditions it may specify. In that case, the Requested Party shall use its best efforts to comply with the conditions specified.

4. Subject to paragraph 3 of this Article, if the request cannot be executed without breaching the confidentiality requirements stated in the request, the Requested Party shall so inform the Requesting Party which shall then determine the extent to which it wishes the request to be executed.

5. Information or evidence which has been made public in accordance with paragraphs 2 or 3 may thereafter be used for any purpose.

ARTICLE 13

Authentication

Evidence or documents transmitted pursuant to this Treaty shall not require any form of authentication, save as is specified in Article 5.

ARTICLE 14

Language

Requests and supporting documents shall be accompanied by a translation into one of the official languages of the Requested Party.

ARTICLE 15

Consular Officials

1. Consular officials may take evidence in the territory of the receiving state from a witness on a voluntary basis without a formal request. Prior notice of the intended proceeding shall be given to the receiving state. That state may refuse its consent for any reason provided in Article 3.

2. Consular officials may serve documents on an individual who appears voluntarily at the consular premises.

ARTICLE 16

Expenses

1. The Requested Party shall meet the cost of executing the request for assistance, except that the Requesting Party shall bear:

(a) the expenses associated with conveying any person to or from the territory of the Requested Party at the request of the Requesting Party, and any allowances or expenses payable to that person while in the Requesting Party pursuant to a request under Articles 6 or 7 of this Treaty;

(b) the expenses and fees of experts either in the Requested Party or the Requesting Party.

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

PART IV

FINAL PROVISIONS

ARTICLE 17

Other Assistance

This Treaty shall not derogate from obligations subsisting between the Contracting Parties whether pursuant to other treaties, arrangements or otherwise, or prevent the Contracting Parties from providing or continuing to provide assistance to each other pursuant to other treaties, arrangements or otherwise.

ARTICLE 18

Scope of Application

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 19

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

ARTICLE 20

Third States

Where judicial authorities of a third State issue any order in the context of an investigation or prosecution that has the effect of requiring a national or resident of one of the Parties to undertake or refrain from any conduct in the territory of the other Party in a manner that conflicts with the laws or established policies of that other Party, the Parties agree to consult to identify means to avoid or minimize such conflict.

ARTICLE 21

Entry into Force and Termination

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

2. Either Contracting Party may terminate this Treaty by means of written notice to the other Contracting Party. The termination shall take effect one year from the date of notification.

IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.

DONE at Ottawa, on the 15th day of April 1994, in duplicate, in English, French and Korean, each version being equally authentic.

FOR CANADA

Allan Rock

FOR THE REPUBLIC OF KOREA

Kim Doo-Hee