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Treaty between Canada and the Republic of Poland on Mutual Legal Assistance in Criminal Matters [1997] CATSer 24 (1 July 1997)

E101634 - CTS 1997 No. 10

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

CANADA AND THE REPUBLIC OF POLAND

Desiring to develop cooperation in the field of mutual legal assistance in criminal matters,

HAVE AGREED AS FOLLOWS:

PART I

GENERAL PROVISIONS

ARTICLE 1

Obligation to Grant Mutual Legal Assistance

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

(2) Mutual legal assistance for the purpose of paragraph 1 shall be any assistance given by the Requested Party in criminal matters conducted by the Requesting Party, irrespective of which competent authority submits the request for legal assistance or provides this assistance.

(3) Criminal matters for the purpose of paragraph 1 means investigations or proceedings relating to acts defined as offences by a competent legislative authority.

(4) Criminal matters shall also include matters relating to offences concerning taxation, duties, customs and international transfer of capital and payments.

(5) Legal assistance shall include:

(a) location and identification of persons and location of objects;

(b) service of documents, including documents requesting the attendance of persons;

(c) provision of information, documents and other records;

(d) delivery of objects, including lending of exhibits;

(e) taking of evidence, including the hearing of persons, and taking of statements;

(f) search for and seizure of documents, records or things;

(g) temporary transfer of detained persons to testify or provide similar assistance;

(h) voluntary appearance of persons in the territory of the Requesting Party;

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

(j) provision of copies of judgements or decisions and other information about convicted persons;

(k) exchanging information about their legislation and judicial decisions; and

(l) other measures consistent with the objects of this Treaty.

(6) Assistance shall be provided without regard to whether the conduct which is the subject of criminal investigation or proceedings in the territory of the Requesting Party would constitute an offence under the law of the Requested Party.

ARTICLE 2

Execution of Requests

(1) Requests for assistance shall be executed in accordance with the law of the Requested Party and, insofar as it is not contrary to that law, the law of the Requesting Party as specified in the request shall also be applied.

(2) The Requested Party shall execute the request promptly. Upon the request of the Requesting Party, the Requested Party shall inform the Requesting Party of the time and place of execution of the request.

ARTICLE 3

Refusal or Postponement of Assistance

(1) Assistance may be refused if the Requested Party considers that the execution of the request would impair its sovereignty, security, public order or essential public interest, or would cause serious threat to the health or life of a person.

(2) Granting of assistance may be postponed by the Requested Party if it is necessary because of an ongoing investigation or prosecution in the territory of the Requested Party.

(3) The Requested Party shall promptly inform the Requesting Party if the request will not be executed in whole or in part or will be postponed and shall give reasons for that decision.

PART II

SPECIFIC PROVISIONS

ARTICLE 4

Location and Identification of Persons and Location of Object

The competent authorities of the Requested Party shall make best efforts to ascertain the location and identity of persons or the location of objects specified in the request.

ARTICLE 5

Service of Documents

(1) The Requesting Party shall transmit a request for the service of a document requesting a response or appearance in the territory of the Requesting Party within a reasonable time before the scheduled response or appearance.

(2) The Requested Party shall confirm service of documents by returning either a receipt carrying the date and signature of the person to whom the delivery was made and the signature of the person who delivered the documents, or a certificate issued by an appropriate authority stating the date, place, and circumstances of the delivery and the personal particulars of the person served.

ARTICLE 6

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 or documents or objects transmitted to the Requesting Party shall be returned to the Requested Party as soon as possible, unless the Requested Party indicates that return is not required.

(3) If it is not contrary to the law of the Requested Party, records, documents or objects shall be transmitted in a form or accompanied by such certification as may be required by the law of the Requesting Party as specified in the request.

ARTICLE 7

Presence of Persons at the Execution of the Request in the Territory of the Requested Party

(1) A person requested to testify and produce documents, records or other articles in the territory of the Requested, Party shall be compelled to appear and testify and produce such documents, records and other articles, in accordance with the requirements of the law of the Requested Party.

(2) Representatives of the competent authorities of the Requesting Party and other participants in the proceedings shall have the right to participate in the execution of the request in the territory of the Requested Party if it is not contrary to the law of the Requested Party.

(3) Participation in the execution of the request as specified in paragraph 2 includes the right to ask questions and make verbatim transcripts of the proceedings, including the use of technical means.

ARTICLE 8

Voluntary Appearance of Persons to Give Evidence or Assist Investigations in the Territory of the Requesting State

(1) The Requesting Party may request that a person appear voluntarily in its territory to testify or to provide similar assistance.

(2) While delivering the invitation to appear voluntarily, the Requested Party shall inform that person of any expenses and allowances payable by the Requesting Party.

ARTICLE 9

Search and Seizure of Documents, Records and Objects

(1) The competent authority of the Requested Party that has executed a request for search and seizure of documents, records or objects shall provide such information as may be required by the Requesting State concerning, but not limited to, the identity, condition, integrity and continuity of possession of the documents, records or things seized and the circumstances of the seizure.

(2) The Requesting Party shall comply with any requirements of the Requested Party in relation to any seized documents, records or things which may be delivered to the Requesting Party.

ARTICLE 10

Temporary Transfer of Detained Persons to Give Evidence or Provide Similar Assistance

(1) A person in custody in the territory of the Requested Party who is requested to appear in the territory of the Requesting Party to give evidence or provide similar assistance shall be temporarily transferred to the Requesting Party if the person consents and there are no overriding grounds against transferring the person.

(2) The transferred person shall remain in custody in the territory of the Requesting Party unless the Requested Party asks for the release of the person.

(3) The Requesting Party shall return the person in custody when the presence of the person in the territory of the Requesting Party is no longer necessary and in any case within the time limit specified by the Requested Party. This time limit may be extended by the Requested Party if the presence of this person in the territory of the Requesting Party is still required.

ARTICLE 11

Safe Conduct

(1) Subject to article 10(2) a person who appears in the territory of 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 the territory of that Party for any acts or omissions which preceded that person's departure from the territory of the Requested Party. That person shall not be obliged to testify in any proceeding other than the proceedings to which the request relates.

(2) Paragraph 1 of this Article shall not apply if a person who appeared, being free to leave the territory of the Requesting Party, has not left it within a period of thirty days from the date when a competent authority advised that that person's attendance was no longer required, or, having left that territory, has voluntarily returned.

(3) A Requested person who failed to appear in the territory of the Requesting Party shall not be subjected to any sanction or compulsory measure in the territory of the Requested Party.

ARTICLE 12

Proceeds of Crime

(1) Upon the request of the Requesting Party, competent authorities of the Requested Party shall make best efforts to ascertain whether any proceeds of a crime are located in its territory and shall notify the Requesting Party of the results of its actions. In making the request, the Requesting Party shall indicate the relevant circumstances which form the basis of its belief that such proceeds may be located in the territory of the Requested Party.

(2) Where the proceeds of crime are found, the Requested state shall take appropriate measures in accordance with its law to freeze, seize and confiscate such proceeds.

PART III

PROCEDURE AND EXPENSES

ARTICLE 13

Contents of Request

(1) Each request for legal assistance shall include:

(a) the competent authority conducting the investigation or proceedings;

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

(c) a statement of the purpose for which the request is made and the nature of the assistance requested;

(d) an indication of the expected time limit within which the request shall be executed.

(2) Requests for legal assistance shall also contain the following information:

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

(b) where necessary, an indication of any particular form or procedure which should be followed while executing the request;

(c) in the case of requests for the taking of evidence or search and seizure, a statement indicating the circumstances which constitute the basis for belief that evidence or objects may be found in the territory of the Requested Party;

(d) in the case of requests to hear a person, a statement as to whether a sworn statement is required and a description of the circumstances to which the evidence or statement will relate;

(e) in the case of lending of exhibits, the person or competent authority which 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 the transfer of detained persons, the person or competent authority which 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; and

(g) if confidentiality is necessary an indication of the reasons therefor.

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

(4) A request shall be made in writing. In urgent circumstances and where otherwise permitted by the Requested Party, a request may be made in another form but shall be confirmed in writing promptly thereafter.

ARTICLE 14

Central Authorities

Requests for legal assistance and responses thereto shall be transmitted through central authorities. The Central Authority for Canada shall be the Minister of Justice; the Central Authority for the Republic of Poland shall be the Minister of Justice.

ARTICLE 15

Confidentiality of Information

(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 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.

ARTICLE 16

Limitation of Use of Information

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.

ARTICLE 17

Removal of Requirements for Authentication

Documents transmitted pursuant to this Treaty shall not require any form of authentication, unless otherwise provided for in this Treaty.

ARTICLE 18

Language

Requests and supporting documents shall be accompanied by a translation into one of the official languages of the Requested Party. However, documents to be served do not require translation if the person to be served accepts them in the language in which they were prepared.

ARTICLE 19

Expenses

(1) The Requested Party shall meet the costs of providing assistance.

(2) The Requesting Party, however, shall cover the costs of transferring detained persons, the fees and expenses connected with the provision of expert opinions in the territory of either Party and the costs referred to in Article 8 paragraph 2.

(3) 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 of the execution of the request.

PART IV

FINAL PROVISIONS

ARTICLE 20

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 21

Consultation

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

ARTICLE 22

Entry into Force and Termination

(1) This Treaty is subject to ratification and shall enter into force on the first day of the second month after instruments of ratification have been exchanged which shall take place in Warsaw.

(2) This Treaty shall remain in force for an unspecified period of time. Either Party may terminate it at any time. Termination shall become effective on the first day of the sixth month following the month in which the other Party receives the notice of termination.

DONE AT Ottawa, on the 12^th day of September, 1994 in two copies, in English, French and Polish, all texts being equally authentic.

André Ouellet

FOR CANADA

Andrzej Olechowski

FOR THE REPUBLIC OF POLAND