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Treaty between Canada and the Republic of Portugal on Mutual Assistance in Criminal Matters [2000] CATSer 8 (1 May 2000)

E101650 - CTS 2000 No. 8

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

CANADA AND THE REPUBLIC OF PORTUGAL

DESIRING to improve the effectiveness of both countries 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

Scope of Assistance

1. The Contracting States shall, in accordance with 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 State in respect of investigations or proceedings in the Requesting State in a criminal matter.

3. Criminal matters for the purpose of paragraph 1 mean, for Portugal, investigations or proceedings in respect of any offence within the jurisdiction of its judicial authorities at the time when assistance is requested and, for Canada, investigations or proceedings in respect of any offence created by a law of Parliament or by the legislature of a province.

4. In relation to fiscal offences, assistance may also be given if the acts or omissions constituting the offence amount to an offence of the same nature under the law of the Requested State. Assistance may not be refused on the grounds that the law of the Requested State does not impose the same kind of tax or duty or does not contain a tax, duty, customs or exchange regulation of the same kind as the law of the Requesting State.

5. For the purpose of paragraph 4, in determining whether an offence is an offence under the laws of both Contracting States it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology.

6. Assistance shall include:

a. providing information and objects;

b. locating or identifying persons and objects;

c. examining sites;

d. serving documents;

e. taking statements and testimony of persons and obtaining other evidence;

f. executing requests for search and seizure to obtain evidence;

g. providing documents and records;

h. making available prisoners and other persons to testify or assist investigations or proceedings;

i. locating, restraining and forfeiting the proceeds of crime and other property and enforcing payment of fines; and

j. other assistance consistent with the objects of this Treaty, which is not inconsistent with the law of the Requested State.

ARTICLE 2

Execution of Requests

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 requested by the Requesting State.

ARTICLE 3

Refusal or Postponement of Assistance

1. Assistance may be refused when in the opinion of the Requested State:

a. the execution of the request is likely to prejudice its sovereignty, security, "ordre public" or other of its essential interests; or

b. its authorities would be precluded by domestic law from carrying out the assistance requested, had the acts or omissions which are referred to in the request occurred in its own jurisdiction.

2. The Requested State may postpone assistance if the execution of the request would interfere with an investigation or proceeding in the Requested State.

3. The Requested State shall:

a. promptly inform the Requesting State of the reason for a denial or postponement of assistance; or

b. consult, if appropriate, with the Requesting State to determine whether assistance may be given, subject to such terms and conditions as the Requested State deems necessary.

PART II - SPECIFIC PROVISIONS

ARTICLE 4

Transmission of Documents and Objects

1. When the request for assistance concerns the transmission of records and documents, the Requested State may transmit certified true copies thereof. However, should the Requesting State expressly request the provision of originals, request shall be complied with to the extent possible.

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

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

ARTICLE 5

Search, Seizure and Production of Evidence

1. The Requested State shall insofar as its law permits carry out requests for search, seizure or the production of documents, records or objects and transfer any material thus obtained, or copies thereof, to the Requesting State, provided that the request contains such information as would allow such measure under the law of the Requested State.

2. The Requested State shall provide such information as may be required by the Requesting State concerning the production, search and seizure, including the place of seizure, the circumstances of seizure, and the subsequent custody of the material seized or produced.

3. The Requesting State shall observe any conditions imposed by the Requested State in relation to any property which is transferred to the Requesting State pursuant to this Article.

ARTICLE 6

Presence of Persons Involved in the Proceedings in the Requested State

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

2. To the extent not prohibited by the law of the Requested State, competent authorities of the Requesting State, the accused and counsel for the accused shall be permitted to be present at the execution of the request and to participate in the proceedings in the Requested State.

ARTICLE 7

Availability of Prisoners in the Requesting State

1. A prisoner in the Requested State whose presence is requested in the Requesting State to testify or to assist an investigation or a proceeding may be transferred for that purpose, provided the person consents.

2. The Requesting State shall have the authority and duty to keep the person in custody and return the person to the custody of the Requested State as soon as the person's presence is no longer required.

3. Where the sentence imposed on a person transferred under this Article expires while the person is in the Requesting State, that person shall be released and thereafter treated as a person referred to in Article 8.

ARTICLE 8

Availability of Other Persons in the Requesting State

1. A request may be made for assistance in making a person available to testify or to assist an investigation or a proceeding in the Requesting State.

2. The Requested State shall, if satisfied that appropriate arrangements for that person's safety will be made by the Requesting State, invite the person to assist in the investigation or proceeding or to appear as a witness and seek that person's concurrence thereto.

ARTICLE 9

Safe Conduct

1. A person present in the Requesting State in response to request seeking that person's attendance shall not be prosecuted, detained or subjected to any other restriction of personal liberty in that State for 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 or to assist an investigation other than the proceedings or investigation to which the request relates.

2. A person, who is present in the Requesting State by consent as a result of a request for the person's attendance to answer before a judicial authority for any acts, omissions or convictions shall not be prosecuted or detained or subjected to any other restriction of personal liberty for acts and omissions or convictions which preceded that person's departure from the Requested State, not specified in the request.

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

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

5. A person appearing before an authority in the Requesting State shall not be subject to prosecution based on the testimony given, except in relation to perjury.

ARTICLE 10

Proceeds of Crime

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

2. When proceeds of crime are located, the Requested State shall assist with or initiate such proceedings as are permitted by its law to prevent any dealing, transfer or disposal of the property or assets pending a final determination by a court of the Requesting or Requested State.

3. The Requested State shall, to the extent its law permits:

a. give effect to a confiscation or other similar order relating to the proceeds made by a court of the Requesting State; or

b. initiate appropriate forfeiture proceedings in relation to the property or assets found in the Requested State.

4. Proceeds confiscated pursuant to this Treaty shall be retained by the Requested State, unless otherwise mutually decided in a particular case.

5. In the application of this Article the rights of bona fide third parties shall be respected.

PART III - PROCEDURE

ARTICLE 11

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 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 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. where possible, the identity, nationality and location of the person or persons who are the subject of the investigations or proceedings;

b. where necessary, details of any particular procedure or requirement that the Requesting State 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 State;

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

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

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.

3. If the Requested State 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 information be furnished. Pending the receipt of additional information, the Requested State shall take such appropriate provisional measures as are permitted by its law.

4. A request shall be made in writing. In urgent circumstances or where otherwise permitted by the Requested State, a request may be made orally but shall be confirmed in writing promptly thereafter.

ARTICLE 12

Central authorities

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 Portugal shall be the Minister of Justice or an official designated by that Minister.

2. The Central Authorities shall communicate directly.

3. The preceding paragraphs do not affect assistance provided through the facilities of Interpol.

ARTICLE 13

Limitation of Use and Confidentiality

1. The Requested State may require, after consultation with the Requesting State, 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 State 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 State.

3. The Requested State 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 State in accordance with any terms and conditions it may specify.

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 State shall so inform the Requesting State which shall then determine the extent to which it wishes the request to be executed.

ARTICLE 14

Authentication

Evidence or documents transmitted pursuant to this Treaty shall not require any form of authentication, save as is specified in Article 4.

ARTICLE 15

Language

Requests for mutual assistance and supporting documents relating thereto shall be accompanied by a translation into one of the official languages of the Requested State.

ARTICLE 16

Expenses

1. The Requested State shall meet the cost 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 Articles 7 or 8 of this Treaty;

b. the expenses and fees of experts either in the Requested State or the Requesting State;

c. the expenses associated with conveying custodial or escorting officers.

2. If it becomes apparent that the execution of the request requires expenses of an extraordinary nature, the Contracting States 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 States whether pursuant to other treaties, arrangements or otherwise, or prevent the Contracting States from providing or continuing to provide assistance to each other pursuant to other treaties, arrangements or otherwise.

ARTICLE 18

Consultations

Any issue arising out of the application and interpretation of this Treaty shall be resolved by consultation between the Contracting States.

ARTICLE 19

Entry Into Force and Termination

1. Each State shall notify the other of the completion of the procedures required for this Treaty to come into force.

2. This Treaty shall enter into force on the first day of the second month following the day on which the last notice was received.

3. This Treaty shall apply to any territory under the administration of the Republic of Portugal thirty days after the date of notification by the Republic of Portugal to Canada that the constitutional requirements for the entry into force of the Treaty in relation to that territory have been complied with.

4. Either State may terminate this Treaty at any time by giving the other State notice of termination. Termination shall take effect six months from the date of the receipt of the notification.

5. This Treaty shall apply to any request made after it comes into force, even if the offence was committed before it came into force.

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

DONE at Lisbon on the 24^th day of June, One thousand nine hundred and ninety-seven, in two copies, in English, French and Portuguese, each version being equally authentic.

FOR CANADA

Patricia Marsden-Dole

FOR THE REPUBLIC OF PORTUGAL

José Vera Cruz Jardim