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Treaty between the Government of Canada and the Government of Romania on Mutual Legal Assistance in Criminal Matters [1999] CATSer 28 (30 June 1999)

E101655 - CTS 1999 No. 29

TREATY BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF ROMANIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF ROMANIA, hereinafter referred to as the "Contracting Parties",

DESIRING to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime through 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, provide each other with the widest possible measure of mutual legal assistance in criminal matters.

2. "Mutual legal assistance" means any assistance provided by the Requested State with respect to criminal investigations and proceedings in the Requesting State, regardless of whether the assistance is sought or is to be provided by a court or some other competent authority.

3. "Criminal matters" means, in the case of Canada, investigations and proceedings relating to any offence created by an act of Parliament or the legislature of a province, and in the case of Romania, investigations and proceedings relating to any offence provided for under Romanian law.

4. "Criminal matters" shall also include investigations or proceedings relating to offences concerning taxation, duties or customs.

5. Assistance includes:

(a) locating and identifying of persons and objects;

(b) serving documents, including documents seeking the attendance of persons;

(c) providing information, records or documents;

(d) providing objects, including lending exhibits;

(e) searches and seizures;

(f) taking evidence and obtaining statements;

(g) authorizing persons from the Requesting State to be present when requests are executed;

(h) making detained persons available to give evidence or assist in investigations;

(i) facilitating the appearance of witnesses or the assistance of persons in investigations;

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

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

ARTICLE 2

Execution of Requests

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

2. Upon request, the Requested State shall inform the Requesting State of the date and place of the execution of the request for assistance.

3. The Requested State may not refuse to execute a request on the grounds of bank secrecy.

ARTICLE 3

Refusal or Postponement of Assistance

1. Assistance may be refused if:

(a) the Requested State is of the opinion that execution of the request would impair its sovereignty, security, public order or other essential public interest;

(b) there is sufficient basis for the Requested State to believe that executing the request would facilitate the prosecution of or imposition of penalties against the person who is the subject of the request by reason of that person's race, religion, nationality or political opinion; or

(c) the offence is regarded by the Requested State as being an offence only under military law.

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

3. The Requested State shall inform the Requesting State without delay if it decides not to comply in whole or in part with a request for assistance or to postpone execution of the request and shall provide reasons for so doing.

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

PART II

SPECIFIC PROVISIONS

ARTICLE 4

Locating and Identifying Persons and Objects

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

ARTICLE 5

Service of Documents

1. The Requested State shall serve any document transmitted to it for this purpose by the Requesting State.

2. The Requesting State shall transmit the request for service of a document relating to a reply or to an appearance in the Requesting State within a reasonable time before the date provided for the reply or the appearance.

3. The Requested State shall transmit proof of service where possible in the form requested by the Requesting State.

ARTICLE 6

Provision of Information, Documents, Files and Objects

1. The Requested State shall provide copies of the information, documents and records in the possession of government departments and public authorities that are available to the public.

2. The Requested State shall provide the information, documents, records and objects in the possession of government departments and public authorities that are not available to the public, to the same extent and under the same conditions as it would make them available to its own law enforcement or judicial authorities.

3. The Requested State may provide certified true copies of any record or document unless the Requesting State expressly requests the originals.

4. Original records, documents or objects provided to the Requesting State shall be returned to the Requested State, upon request, as soon as possible.

5. Insofar as not prohibited by the law of the Requested State, records, documents or objects shall be provided in the form or accompanied by such certification as specified in the request in order that they will be admissible in evidence under the law of the Requesting State.

ARTICLE 7

Search and Seizure

1. The Requested State shall execute requests for search and seizure.

2. The competent authority that executes a request for search or seizure shall provide all the 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 objects seized and the circumstances in which they were seized.

ARTICLE 8

Taking of Evidence and Statements in the Requested State

1. A person requested to testify or produce documents, records or objects in the Requested State shall be compelled, if necessary, by summons, or order, to appear and to testify and to produce such documents, records and objects in accordance with the law of the Requested State.

2. To the extent not prohibited by the law of the Requested State, the authorities of the Requesting State and other persons specified in the request shall be authorized to be present at the execution of the request and to participate in the proceedings in the Requested State.

3. The right to participate in proceedings shall include the right of any person present to ask questions. The persons present at the execution of a request may make a verbatim transcript of the proceedings and use technical means for this purpose.

ARTICLE 9

Presence of Designated Parties for the Execution - Execution of the Request in the Requested State

The authorities of the Requesting State and other persons specified in the request shall be authorized, to the extent not prohibited by the law of the Requested State, to be present at the execution of the request.

ARTICLE 10

Making of Detained Persons Available to Give Evidence or Assist in Investigations in the Requesting State

1. A person detained in the Requested State shall, upon request, be transferred temporarily to the Requesting State to assist investigations or testify in proceedings, provided that the person consents.

2. When the person transferred is required to remain in custody under the law of the Requested State, the Requesting State shall keep this person in custody and shall return the person to the Requested State following execution of the request.

3. If the sentence imposed on the person transferred ends or if the Requested State informs the Requesting State that this person no longer has to be detained, that person shall be set at liberty and be treated as a person whose presence in the Requesting State was obtained pursuant to a request to this effect.

ARTICLE 11

Providing Evidence and Assisting in Investigations in the Requesting State

The Requested State shall invite a person to assist in an investigation or to appear as a witness in the Requesting State and shall seek that person's consent thereto. The Requesting State shall inform this person, in the request, of the expenses and allowances payable.

ARTICLE 12

Safe Conduct

1. Subject to paragraph 2 of Article 10, a person present in the Requesting State pursuant to a request made for this purpose shall not be prosecuted, detained or subjected to any other restriction of personal liberty in the Requesting State in respect of any acts or omissions which preceded that person's departure from the Requested State, nor shall that person be obliged to give evidence in any proceeding other than that to which the request relates.

2. Paragraph 1 of this Article shall cease to apply where a person, being free to leave the Requesting State, has not left it within a period of 30 days after being officially notified that the 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 State shall not be subjected to any penalty or compulsory measure in the Requested State or in the Requesting State.

ARTICLE 13

Proceeds of Crime

1. The Requested State shall, upon request, endeavour to ascertain whether any proceeds of a crime are located within its jurisdiction and shall notify the Requesting State of the results of its inquiries.

2. When pursuant to paragraph 1 of this Article, suspected proceeds of crime are found, the Requested State shall take such measures as are permitted by its law to restrain, seize and confiscate such proceeds.

3. The proceeds of crime confiscated pursuant to a request made under this Treaty, shall accrue to the Requested State unless it otherwise agreed.

ARTICLE 14

Compensation and Enforcement of Fines

The Requested State shall, to the extent permitted by its law, assist in compensating the victims of crime and in collecting fines imposed in criminal prosecutions.

PART III

PROCEDURE

ARTICLE 15

Contents of Requests

1. Requests for assistance shall indicate, in all cases:

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

(b) the nature of the investigation or proceedings and include a summary of the relevant facts and a copy of the applicable 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 therefor; and

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

2. Requests for assistance shall also contain the following information:

(a) in the case of requests for the taking of evidence, search and seizure or the location, restraint or forfeiture of proceeds of crime, a statement indicating the basis for belief that evidence or proceeds of crime may be found in the territory of the Requested State;

(b) 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;

(c) in the case of lending of exhibits, the place where the exhibits are located in the Requested State, the person or class of persons who will have custody of the exhibits in the Requesting State, the place to which they will be removed, any tests to be conducted and the date by which they will be returned;

(d) in the case of making detained persons available to the Requesting State, the persons 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.

3. If necessary and to the extent possible, requests for assistance shall contain the following information:

(a) the name, nationality and location of the person or persons who are the subject of the investigation or proceeding;

(b) details concerning any particular procedure the Requesting State wishes the executing authorities to follow and the reasons therefor.

4. If the Requested State is of the opinion that the information contained in the request is insufficient to enable the request to be executed, it may request additional information.

5. Requests shall be made in writing. In urgent cases, a request may be made orally, but shall be confirmed in writing promptly thereafter.

ARTICLE 16

Central Authorities

For the purposes of this Treaty, all requests and replies to them shall be transmitted and received by the central authorities, which shall communicate directly with each other. For Canada, the central authority shall be the Minister of Justice or the officials designated by that Minister; for Romania, the central authority shall be the Department of Justice.

ARTICLE 17

Confidentiality

1. After consulting the Requesting State, the Requested State may request that the information or evidence provided or the source of this information or evidence remain confidential or be disclosed or used only except subject to such terms and conditions as it may specify.

2. The Requested State shall, to the extent requested, keep confidential a request, its contents, supporting documents and any action taken in furtherance of the request. If the request cannot be executed in accordance with this confidentiality requirement, the Requested State shall notify the Requesting State prior to executing the request. The Requesting State shall then decide whether the request should be executed.

ARTICLE 18

Limitation on Use of Information

The Requesting State shall not use or disclose the information or evidence provided for purposes other than those set out in the request without the prior consent of the central authority of the Requested State.

ARTICLE 19

Certification and Authentication

The documents, records or objects transmitted under this Treaty shall not require certification or authentication, except as specified in Article 6.

ARTICLE 20

Language

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

ARTICLE 21

Expenses

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

(a) the expenses associated with conveying any person to or from the territory of the Requested State at the request of the Requesting State, and any allowance or expenses payable to that person while in the Requesting State pursuant to a request under Article 10 or 11 of this Treaty;

(b) the expenses and fees of experts, whether they have been incurred in the Requested State or the Requesting State;

(c) the expenses of translation, interpretation and transcription.

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 22

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 23

Consultations

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

ARTICLE 24

Entry into Force and Termination

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

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

3. Each Contracting Party may terminate this Treaty. The termination shall take effect one year after the date on which notification was given to the other Party.

IN WITNESS WHEREOF, the undersigned, being duly authorized, have signed this Treaty.

DONE in duplicate at Ottawa this 25th day of May One Thousand nine hundred and ninety-eight, in the English, French and Romanian languages, each version being equally authentic.

FOR CANADA

Lloyd Axworthy

FOR ROMANIA

Andrei Plesu