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Treaty between Canada and the Swiss Confederation on Mutual Assistance in Criminal Matters [1995] CATSer 28 (17 November 1995)

E101631 - CTS 1995 No. 24

TREATY BETWEEN CANADA AND THE SWISS CONFEDERATION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS

The Government of Canada and the Swiss Federal Council, hereinafter referred to as the Contracting States, desiring to make more effective the co-operation 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:

CHAPTER I - GENERAL PROVISIONS

ARTICLE 1

Obligation to Provide Mutual Assistance

1. The Contracting States undertake to provide, in accordance with the provisions of this Treaty, the widest possible measure of mutual assistance in investigations or legal proceedings relating to offences, the suppression of which is under the jurisdiction of the Requesting State (hereinafter referred to as "investigations or proceedings").

2. For the purposes of this Treaty, an offence means:

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

(b) in relation to Switzerland, any offence that may be prosecuted under the Swiss penal code or another law of the Federation or of a Canton.

3. Assistance shall include all measures taken to advance investigations or proceedings in the Requesting State, and in particular:

(a) identifying persons and determining their location;

(b) taking testimony or other statements;

(c) producing objects, documents, records and evidence, including exhibits;

(d) exchanging information;

(e) executing requests involving compulsory measures;

(f) serving documents;

(g) making detained persons available.

4. The provisions of this Treaty do not give rise to a right on the part of a private party to obtain, remove or exclude any evidence in the Requesting State.

ARTICLE 2

Exclusion

This Treaty does not apply to the following cases:

(a) extradition and any related measure, including the arrest or location of persons accused or convicted of an offence;

(b) the execution of penal judgments;

(c) investigations and proceedings relating to offences against laws dealing with military obligations.

ARTICLE 3

Reasons for Denying or Postponing the Execution of the Request

1. Mutual assistance may be denied:

(a) if the request relates to offences considered by the Requested State to be political offences, connected with political offences, or fiscal offences; however, the Requested State has the option of complying with the request if the investigation or proceedings concerns a fraudulent scheme or a fraud relating to a fiscal matter;

(b) if the Requested State is of the opinion that the execution of the request is likely to impair its sovereignty, security, "ordre public" or other essential interests as determined by its federal authority;

(c) if the request has to do with the prosecution of a person and concerns facts on the basis of which that person has been finally acquitted or convicted in the Requested State for an essentially similar offence, provided the penalty ultimately imposed is currently being carried out or has already been carried out.

2. The Requested State may postpone mutual assistance if the execution of the request would interfere with an investigation or proceedings under way in that State.

3. Before denying or deferring mutual assistance in accordance with this Article, the Requested State shall:

(a) promptly inform the Requesting State of the reason for denying or deferring of assistance, and

(b) consider whether assistance can be given on such terms and conditions as it deems necessary. If so, those terms and conditions shall be complied with in the Requesting State.

ARTICLE 4

Third State

1. Where in any investigation or proceedings, a national or resident of one of the Contracting States is required by a judicial order from a third State to undertake or refrain from any conduct in the territory of the other Contracting State in a manner that conflicts with the law or established policies of that other State, the Contracting States agree to consult with a view to identifying means to avoid or minimize such conflict.

2. The Contracting States may agree either between themselves or jointly or individually with the third State in question as to the implementation of the means mentioned in paragraph 1 of this Article.

CHAPTER II - OBTAINING EVIDENCE

ARTICLE 5

Applicable law

A request shall be executed in accordance with the law of the Requested State.

ARTICLE 6

Compulsory Measures

1. When compulsory measures are requested, including an order for search and seizure, the taking of evidence or the lifting of bank secrecy, they may not be replaced by different measures unless the Requesting State gives its prior consent.

2. The execution of a request involving such measures may be denied if the facts described in the request do not correspond to the elements of an offence punishable under the law of the Requested State, had it been committed there.

ARTICLE 7

Limit on Use

1. Information obtained by mutual assistance may not, in the Requesting State, be used for investigations or be produced as evidence in any proceedings relating to an offence for which mutual assistance is excluded. Any other use is subject to the prior approval of the central Authority of the Requested State.

2. A foreign State, which is a party claiming damage in a criminal proceeding in one of the Contracting States, may be authorized to consult the record, subject to the same conditions.

ARTICLE 8

Presence of Persons Participating in the Proceedings

1. If the Requesting State expressly so requests, the central Authority of the Requested State shall inform it of the date when and place where the request will be executed. The authorities and persons involved may be present at such execution if the Requested State agrees.

2. Exceptionally, when a request requires that a person make a deposition or testify in the Requested State, the person subject of the proceedings or investigation in the Requesting State and his legal counsel and the competent authorities of the Requesting State may be present at the execution of the request and put questions in accordance with the rules of procedure of the Requested State, if it is established that:

(a) the evidence sought would otherwise be inadmissible under the law of the Requesting State; or

(b) the Requested State considers that the presence of such persons will facilitate execution of the request.

ARTICLE 9

Depositions of Witnesses in 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 allows them to do so.

2. If their refusal to testify is based on the law of the Requesting State, the Requested State shall send the matter to the Requesting State for decision. Reasons shall be given for that decision.

3. A witness exercising the right to refuse to testify cannot be the subject of any legal penalty in the Requesting state for that reason.

ARTICLE 10

Transmission of Objects, Documents, Records and Evidence

1. Rights claimed by third parties to objects, documents, records or evidence in the Requested State shall not prevent their transmission to the Requesting State.

2. The Requesting State is required to return what was transmitted as quickly as possible and at the end of the proceedings at the latest.

ARTICLE 11

Administrative Documents

1. The Requested State shall provide copies of public documents and records of government departments and agencies.

2. The Requested State may provide copies of any document, record or other information not publicly available, in the possession of a government department or agency, in the same way as it would release them to its own judicial authorities and law enforcement agencies.

ARTICLE 12

Records of Courts and Investigating Magistrates

The Requested State shall make available to the authorities of the Requesting State its records of courts or investigating magistrates - including judgments and decisions - on the same conditions and to the same extent as it does to its own authorities.

ARTICLE 13

Judicial Records

The Requested State shall provide extracts from and information relating to judicial records requested from it, to the same extent that these may be available to its own authorities in like cases.

ARTICLE 14

Transmittal of a Complaint for the Purposes of Prosecution or Confiscation

1. Each of the Contracting States may refer to the other a complaint for the purposes of prosecution or confiscation of proceeds of crime.

2. Any such complaint shall be accompanied by the relevant evidence gathered by the Requesting State.

3. The State to whom such a complaint is referred shall take appropriate action. In the appropriate case, it shall forward a copy of the decision made.

CHAPTER III - SERVICE OF WRITS AND RECORDS OF JUDICIAL VERDICTS APPEARANCE OF WITNESSES, EXPERTS AND PROSECUTED PERSONS

ARTICLE 15

Service of writs and records of judicial verdicts

1. The Requested State shall effect service of writs and records of judicial verdicts which are transmitted to it for this purpose by the Requesting State.

2. Service may be effected by simple transmission of the writ or record to the person to be served. If the Requesting State expressly so requests, service shall be effected by the Requested State in the manner provided for the service of analogous documents under its own law or in a special manner consistent with such law.

3. Proof of service shall be given by means of a receipt dated and signed by the person served or by means of a declaration made by the Requested Stage that service has been effected and stating the form and date of such service. One or other of these documents shall be sent immediately to the Requesting State. The Requested State shall, if the Requesting State so requests, state whether service has been effected in accordance with the law of the Requested State. If service cannot be effected, the reasons shall be communicated immediately by the Requested State to the Requesting State.

4. A request for the service of a summons on an accused person who is in the Requested State, shall be sent to the central Authority of that State at least thirty days before the date set for the appearance.

ARTICLE 16

Appearance of Witnesses and Experts in the Requesting State

1. Any person in the Requested State may be called upon to appear as a witness or as an expert in an investigation or proceedings underway in the Requesting State, if he or she is not the subject of that investigation or proceedings.

2. The person shall be invited to appear. The Requested State shall communicate the person's reply to the Requesting State without delay.

3. A person who agrees to appear in the Requesting State may require that State to issue an advance for his or her travel and accommodation expenses.

ARTICLE 17

Failure to Appear and Compensation

1. The witness or expert who fails to answer a request for his or her appearance service of which has been requested, shall not, even if the request contains a notice of penalty, be subjected to any punishment or compulsory measure unless, subsequently, he or she voluntarily enters the territory of the Requesting State and is there again duly summoned.

2. Compensation payable, including travel and accommodation expenses to be reimbursed to the witness or expert by the Requesting State, shall be calculated from their place of residence and paid at a rate at least equal to that specified by the tariffs and regulations in effect in the country where the hearing is to take place.

ARTICLE 18

Safe Conduct

1. A witness or expert, whatever his or her nationality, appearing pursuant to a request before the judicial authorities of the Requesting State, shall not be prosecuted or detained or subjected to any other restriction of personal liberty in the territory of that State in respect of acts or convictions anterior to his or her departure from the territory of the Requested State.

2. A person, whatever his or her nationality, summoned before the judicial authorities of the Requesting State to answer for acts forming the subject of proceedings against him or her, shall not be prosecuted or detained or subjected to any other restriction of personal liberty for acts of convictions anterior to his or her departure from the territory of the Requested State and not specified in the summons.

3. A person, whatever his or her nationality who in response to a request goes to the Requesting State to assist in an investigation or proceedings shall not be:

(a) the subject of a service in connection with a civil process relating to acts or convictions prior to the person's departure from the territory of the Requested State;

(b) obliged to testify in proceedings in the Requesting State other than those covered by the request.

4. The immunity provided for in this Article shall cease when the person who is the subject thereof, having had for a period of fifteen consecutive days from the date when his or her presence is no longer required, an opportunity to leave the territory of the Requesting State, has nevertheless remained in that territory, or having left it, has returned.

ARTICLE 19

Extent of Testimony in the Requesting State

1. A person who appears in the Requesting State in response to a request may not refuse; to testify or to provide evidence in reliance on the law of the Requested State.

2. Article 7 (1) applies mutatis mutandis.

ARTICLE 20

Transfer of Detained Persons

1. Every detained person whose personal appearance as a witness or for purposes of confrontation or investigation is requested by the Requesting State shall be transferred to that State temporarily on condition that he or she is returned within the deadline indicated by the Requested State and subject to the provisions of Article 18, in so far as they apply.

2. Transfer may be refused:

(a) if the detained person does not consent;

(b) if his or her presence is required in an investigation or proceedings underway in the territory of the Requested State;

(c) if the transfer is likely to prolong detention; or

(d) if other imperative considerations exist against transfer to the Requesting State.

3. The person transferred shall remain in detention while in the territory of the Requesting State unless the Requested State asks that he or she be released.

CHAPTER IV - PROCEDURE

ARTICLE 21

Central Authorities

1. For the purposes of this Treaty, the central Authority for Canada is the federal Minister of Justice and for Switzerland, the Federal Office for Police Matters of the federal Department of Justice and Police.

2. The central Authority of the Requesting State shall submit requests for mutual assistance in criminal matters covered by this Treaty on behalf of its courts or authorities.

3. The central Authorities of the two states shall communicate directly with each other.

ARTICLE 22

Contents of Request

1. In all cases, requests for assistance shall include:

(a) the name of the authority responsible for the investigation or proceedings in the Requesting State;

(b) the purpose and reason for the request;

(c) where possible, the complete name, place and date of birth, nationality and address of the person who is the subject of the investigation or proceedings as of the date the request is made;

(d) the text of applicable legal provisions in the Requesting State, the principal reason why evidence or information is requested and a summary of the facts (date, place and circumstances in which the offence was committed) giving rise to the investigation or proceedings in the Requesting State, unless the request is one for service within the meaning of Article 15.

2. In addition, requests for assistance shall include:

(a) in the case of service of writs and records of judicial verdicts (Art. 15), the name and address of the person to be served;

(b) in the case of a request involving compulsory measures (Art. 6), a statement indicating the reasons for which it is believed that evidence is located in the territory of the Requested State, unless this otherwise appears from the request itself or in the course of executing the request;

(c) in the case of a request for search and seizure, a declaration by a competent Authority of the Requesting State that such a measure would be permissible if the subject-matter of the request were located there;

(d) in the case of a request for the taking of testimony (Art. 9) or other statements, the subject matter regarding which the person is to be heard, including, if necessary, a list of questions to be asked;

(e) in the case of a request for the transfer of a detained person (Art. 20), the person's identity and a description of the persons responsible for his or her custody during the transfer, of the place to which he or she will be transferred and the maximum length of the period of the transfer;

(f) details of any particular procedure or requirement the Requesting State wishes to be followed.

3. Subject to Article 14 (2) of this Treaty, the Requested State may not ask that the request be accompanied by formal evidence.

ARTICLE 23

Execution of the Request

1. In case of urgency, the central Authority of the Requested Sate shall submit the request to the competent Authority before it is formally received.

2. If the request does not conform with the provisions of this Treaty, the central Authority of the Requested State shall inform the central Authority of the Requesting State without delay and ask it to make changes to or complete the request.

3. If the request appears to be in conformity with the Treaty, the central Authority of the Requested State shall forward it promptly to the competent authority.

4. After the request has been executed, the competent Authority shall forward to the central Authority of the Requested State the original of the request and the information and evidence gathered. The central Authority shall be responsible for ensuring that the execution is complete and accurate and shall communicate the results thereof to the central Authority of the Requesting State.

ARTICLE 24

Confidentiality

Subject to the provisions of its domestic law:

(a) the Requested State shall keep the request and the information contained therein confidential;

(b) the Requesting State shall keep the information and evidence transmitted by the Requested State confidential.

ARTICLE 25

Reasons for Refusal

Reasons shall be given for any refusal to comply, in whole or in part, with a request for assistance.

ARTICLE 26

Exemption from Legalization and Admissibility of Evidence

1. Objects and documents transmitted pursuant to this Treaty shall be exempt from any legalization requirement.

2. If the law of the Requesting State requires that documents, copies or objects transmitted by the Requested State be accompanied by certificates, statements or other certification to make them admissible in a proceeding in the Requesting State, the Requested State shall consider whether it can comply with this aspect of the request.

ARTICLE 27

Language

A request made pursuant to this Treaty and the accompanying documents shall be written in the official language of the authority responsible for the execution of the request, except in the case of service of writs and records of judicial verdicts without formal requirements according to Article 15 (1).

ARTICLE 28

Costs relating to the Execution of the Request

1. The Requesting State shall, at the request of the Requested State, reimburse only the following costs and disbursements incurred in executing a request:

(a) translation and interpretation costs;

(b) compensation, travel costs and expenses for witnesses and their representatives, if any;

(c) costs relating to the transfer of detained persons;

(d) fees, travel costs and expenses for experts.

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

CHAPTER V - FINAL PROVISIONS

ARTICLE 29

Other Agreements or Arrangements

The provisions of this Treaty shall not affect more extensive mutual assistance which has been or may be agreed upon between the Contracting States in other agreements or arrangements or which may result from a well-established practice of their competent authorities.

ARTICLE 30

Consultations

In the cases of co-operation in penal matters to which this Treaty does not apply, the Central Authorities shall consult in order to arrive at a common solution.

ARTICLE 31

Exchanges of Views and Settlement of Disputes

1. If they think it useful, the central Authorities shall exchange views, orally or in writing, on the application or implementation of this Treaty, in general terms or in a particular case.

2. Any difference that is not resolved by the central Authorities may be the subject of consultations or negotiations between the Contracting States as to the interpretation, application or implementation of this Treaty.

3. Unless the Contracting States agree on another procedure for settlement, any difference that has not been resolved under paragraphs 1 and 2 shall be the subject of arbitration at the request of either Contracting State.

4. In the event of arbitration, each Contracting State shall appoint an arbitrator. The two arbitrators shall appoint a chairperson. If within three months of the date of the request for the submission of the difference to arbitration, one of the Contracting States has not appointed its arbitrator, the latter shall be appointed at the request of one of the two States by the President of the International Court of Justice. If within two months of their appointment both arbitrators have been unable to agree on the choice of a chairperson, the latter shall be appointed at the request of one of the two Contracting States by the President of the International Court of Justice. The decisions of the arbitral tribunal shall be binding on the Contracting States.

5. However, the settlement of a difference in accordance with paragraph 4 of this Article shall not affect the validity of the final decision taken by a governmental or judicial authority of one of the Contracting State as a consequence of the request from which the difference arose.

ARTICLE 32

Entry into Force and Termination

1. This Treaty shall be ratified and the instruments of ratification exchanged at ____________ as soon as possible.

2. This Treaty shall enter into force when the instruments of ratification are exchanged.

3. Either Contracting State may terminate this Treaty at any time by notice in writing to-the other State. Such termination shall take effect six months after the date of receipt of the notification.

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

DONE in duplicate in French and English, both texts being equally authentic, at Berne on the 7th day of October 1993.

Jacques S. Roy

FOR THE GOVERNMENT OF CANADA

Arnold Koller

FOR THE SWISS FEDERAL COUNCIL