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Treaty between Canada and the Russian Federation on Mutual Legal Assistance in Criminal Matters [2000] CATSer 26 (18 December 2000)

E101654 - CTS 2000 No. 24

TREATY BETWEEN CANADA AND THE RUSSIAN FEDERATION ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

CANADA AND THE RUSSIAN FEDERATION, hereinafter referred to as the "Parties";

DESIRING to improve the effectiveness of both Parties in the 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 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 of the present Article shall be any legal assistance given by the Requested Party in respect of investigations or proceedings in the jurisdiction of the Requesting Party in a criminal matter, irrespective of whether the legal assistance is sought or to be provided by a court or some other authority.

3. Criminal matters for the purpose of Paragraph 1 of the present Article mean, for Canada, investigations or proceedings relating to any offence created by a law of Parliament or by the legislature of a province and, for the Russian Federation, investigations or proceedings relating to any offence enacted by criminal legislation of the Russian Federation.

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

5. Legal assistance shall include:

(a) locating and identifying persons and objects;

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

(c) providing information, documents and other records, including criminal records, judicial records and government records;

(d) delivering property;

(e) lending of exhibits;

(f) taking evidence and obtaining statements of persons;

(g) executing requests for search and seizure;

(h) making persons in custody and others, including experts, available to give evidence or assist investigations;

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

(j) providing other assistance consistent with the purpose of this Treaty.

ARTICLE 2

Execution of Requests

1. Requests for legal 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 specified by the Requesting Party.

2. The Requested Party shall, when the Requesting Party specifically requests it, inform the Requesting Party of the time and place of execution of the request.

3. The Requested Party shall not decline execution of a request on the ground of bank secrecy.

ARTICLE 3

1. Legal assistance may be refused if, in the opinion of the Requested Party the execution of the request would impair its sovereignty, security, public order or any other essential public interest.

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

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

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

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

ARTICLE 5

1. The Requested Party shall serve any document transmitted to it for the purpose of service.

2. The Requesting Party shall transmit a request for the service of a document pertaining to a response or appearance in the jurisdiction of the Requesting Party within a reasonable time before the scheduled response or appearance. In determining what time is "reasonable", the Requesting Party shall take into account conditions in the jurisdiction of the Requested Party.

3. The Requested Party shall return a proof of service in the manner required by the Requesting Party. If service is delayed or cannot be effected, the reason therefor shall be communicated to the Requesting Party.

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, in which case the Requested Party shall make every effort to comply with the request.

2. The original records or 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, records, documents or objects 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 7

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

2. The Requested Party, in accordance with its laws, shall permit the presence of such persons as specified in the request during the execution of the request, and shall allow them to pose questions to the person being questioned.

3. The persons present at the execution of a request shall be permitted to make a verbatim transcript of the proceedings. To the extent not prohibited by the law of the Requested Party, the use of technical means to make such a verbatim transcript shall be permitted.

ARTICLE 8

Availability of Persons to Give Evidence or Assist Investigations in the Jurisdiction of 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 and seek that person's voluntary concurrence thereto. That person shall be informed of any expenses and allowances payable. The Requested Party shall promptly inform the Requesting Party of the person's response.

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

2. The Requesting Party shall observe any conditions imposed by the Requested Party in relation to any seized documents, records or objects which may be delivered to the Requesting Party.

1. A person in custody in the jurisdiction of the Requested Party shall, at the request of the Requesting Party, be temporarily transferred to the Requesting Party to assist investigations or to give evidence in proceedings provided that the person consents to that transfer and there are no overriding grounds against transferring the person. The Requesting Party shall hold that person in custody and shall return the person in custody to the Requested Party at the conclusion of the execution of the request.

2. 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 invited pursuant to Article 8 of the present Treaty.

1. A person present in the jurisdiction of the Requesting Party in response to a request seeking that person's attendance shall not be detained or subjected to any other restriction of personal liberty except as specified in Article 10(1) of the present Treaty, nor shall that person be prosecuted for any acts or omissions which preceded that person's departure from the jurisdiction of 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 jurisdiction of 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 jurisdiction, has voluntarily returned.

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

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 the latter's 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, seize and confiscate such proceeds.

PART III - PROCEDURE

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

(a) the competent authority conducting the investigation or proceedings (including criminal prosecutions), to which the request relates;

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

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

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

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, details of any particular procedure or requirement that the Requesting Party wishes to be followed and the reasons therefor;

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

(d) in the case of requests to take evidence from a person, information as to whether that evidence is required to be sworn, affirmed, or otherwise taken in conformity with the law of the Requested Party, 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 persons in custody available, the person or class of persons who will have custody during the transfer, the place to which the person in custody is to be transferred and the date of that person's return;

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

(h) any other information that might be useful in order to execute 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. In urgent circumstances or where otherwise permitted by the Requested Party, a request may be made by facsimile or other agreed means of electronic communication but shall be confirmed in original written form promptly thereafter.

ARTICLE 14

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 officials designated by that Minister; the Central Authority for the Russian Federation shall be the Office of the Procurator General of the Russian Federation.

ARTICLE 15

Confidentiality

1. The Requested Party may require 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. If the Requesting Party accepts the information or evidence subject to such terms and conditions, it shall comply with them.

2. The Requested Party shall, upon request, and to the extent requested, keep confidential a request, its contents, supporting documents and any action taken pursuant to the request. If the request cannot be executed without breaching confidentiality, the Requested Party shall so notify the Requesting Party, which shall determine whether the request should nevertheless be executed.

ARTICLE 16

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

Certification

Evidence or documents transmitted pursuant to this Treaty shall not require any form of certification, save as is specified in Article 6 of the present Treaty.

ARTICLE 18

Requests made by Canada and their supporting documents shall be accompanied by a translation into the Russian language. Requests made by the Russian Federation and their supporting documents shall be accompanied by a translation into the English or French languages.

ARTICLE 19

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 proceedings shall be given to the receiving state. That state may refuse its consent for any reason provided in Article 3 of the present Treaty.

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

ARTICLE 20

Expenses

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

(a) the expenses associated with conveying any person to or from the jurisdiction of the Requested Party at the request of the Requesting Party, and any allowance or expenses payable to that person while in the jurisdiction of the Requesting Party pursuant to a request under Articles 7 or 8 of the present Treaty;

(b) the expenses and fees of experts either in the jurisdiction of 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.

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 22

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 23

The Contracting Parties shall consult promptly, at the request of either Party, concerning the interpretation and the application of this Treaty, either generally or in relation to a particular request.

ARTICLE 24

1. This Treaty is subject to ratification and shall enter into force immediately upon the exchange of instruments of ratification which will take place in ____________.

2. Either Contracting Party may terminate this Treaty. The termination shall take effect six months from the date on which the notice of termination of one Contracting Party is received by the other Contracting Party.

3. Notwithstanding that a Contracting Party has given notice pursuant to Paragraph 2 of the present Article, this Treaty continues to apply to requests made before notice was received.

IN WITNESS WHEREOF the representatives of both Governments, being duly authorized thereto, have signed this Agreement.

DONE in duplicate at Moscow, this 20th day of October, One Thousand nine hundred and ninety-seven in the English, French and Russian languages, each version being equally authentic.

FOR CANADA

Anne Leahy

FOR THE RUSSIAN FEDERATION

Sergei Vadimovitch Stepashin