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Treaty between the Government of Canada and the Government of the Kingdom of Belgium on Mutual Legal Assistance in Criminal Matters [2003] CATSer 9 (1 April 2003)

PART I - GENERAL PROVISIONS

ARTICLE 1

Obligations to Grant Mutual Assistance

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

(2) Mutual assistance in criminal matters shall be any assistance given by the Requested State in respect of investigations or proceedings conducted in the Requesting State relating to offenses created by legislation in force in that State and whose suppression falls within the jurisdiction of its judicial authorities.

(3) Assistance shall include:

(a) location of persons and objects, including their identification;

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

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

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

(e) taking of evidence and obtaining statements from persons;

(f) search and seizure;

(g) making detained persons and others available to give evidence or assist investigations;

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

(i) 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 incompatible with that law, in the manner requested by the Requesting State.

(2) The Requested State shall, upon request, inform the Requesting State of the time and place of execution of the request for assistance.

Limitation of Assistance

(1) Assistance may be refused if, in the opinion of the Requested State, the execution of the request would impair its sovereignty, security, public order or fundamental interests.

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

(3) Assistance may be refused if the request pertains to a political offence, unless the offence is one which the Contracting States are entitled to treat as not being a political offence pursuant to any other international agreement to which they are parties.

(4) Before refusing to grant a request for assistance or before postponing the grant of such assistance, the Requested State shall, after consulting with the Requesting State in appropriate cases, determine 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.

(5) The Requested State shall promptly inform the Requesting State of a decision to refuse or postpone execution, and shall give reasons for that decision.

PART II - SPECIFIC PROVISIONS

ARTICLE 4

Location or Identification of Persons or Objects

The competent authorities of the Requested State shall take all the measures necessary to ascertain the location and identity of persons or objects specified in the request.

ARTICLE 5

Service of Documents

(1) The Requested State shall serve any notice of judicial proceeding and any document transmitted to it for the purpose of service. Service may be effected by simple delivery of the procedure or document to its addressee. If the Requesting State expressly requests it, the Requested State shall effect service by one of the means for service of similar documents provided for in its legislation or by any special means consistent with such legislation.

(2) The Requesting State shall transmit a request for the service of a document pertaining to a response or appearance in the Requesting State within a reasonable time before the scheduled response or appearance.

(3) As proof of service, the Requested State shall return an acknowledgement of receipt dated and signed by the addressee or a declaration signed by the agent who carried out the service setting out the means and the date of service.

Transmission of Objects and Documents

(1) When the request for assistance concerns the transmission of records and documents, the Requested State may transmit certified true copies thereof, unless the Requesting State expressly requests the originals.

(2) The original records or documents or 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 incompatible with the law of the Requested State, and upon the express request of the Requesting State, records, documents or objects 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 7

Transmission of Information, Records and Objects in the Possession of a Public Authority or a Government Agency

(1) The Requested State shall provide all publicly available information and objects, including documents and records, which are in the possession of government departments and agencies in that State.

(2) The Requested State may provide all information and objects, including documents and records, which are in the possession of a government department or agency and which are not accessible to the public, to the same extent and subject to the same conditions as are applicable to its own judicial authorities or to those authorities responsible for the application of the law.

(3) Paragraph (2) shall apply to criminal records and court records.

ARTICLE 8

Presence of Persons Involved in the Proceedings in the Requested State

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

(2) To the extent not incompatible with the law of the Requested State, the competent authority in the Requested State may authorize judges and competent authorities of the Requesting State, as well as other persons involved in the investigation or the proceedings and mentioned in the request, 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 the proceedings shall include the right of any person present to pose questions in accordance with the rules of procedure of the Requested State. To the extent not incompatible with the law of the Requested State, the competent authority in the Requested State may authorize the use of methods and procedures provided for in the law of the Requesting State, in particular, the right to make a verbatim transcript of the proceedings, which are necessary for the admissibility of evidence in the Requesting State.

Attendance of Persons in the Requesting State to Give Evidence or Assist an Investigation

Upon the request of the Requesting State, the Requested State shall invite any person in the Requested State to assist in the investigation or to appear as a witness and shall seek that person’s cooperation to that end. The person whose evidence or assistance is sought shall be informed of any expenses and allowances payable. If that person requires it, the Requesting State may provide an advance of funds in respect of transportation and living expenses. This advance may be paid by the Embassy of that State located in the Requested State.

ARTICLE 10

Search and Seizure

(1) To the extent permitted by its legislation, the Requested State shall carry out requests for search and seizure.

(2) The competent authority that has executed a request for search and seizure 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 objects seized and the circumstances of the seizure.

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

ARTICLE 11

Transfer to the Requesting State of Detained Persons to Give Evidence or Assist an Investigation in the Requesting State

(1) A person in custody in the Requested State shall, at the request of the Requesting State, be temporarily transferred to the Requesting State to assist investigations or to give evidence in proceedings provided that the person consents to the transfer.

(2) When the person transferred is required to be kept in custody under the law of the Requested State, the Requesting State shall hold that person in custody and shall return the person in custody at the conclusion of the execution of the request.

(3) When the sentence imposed upon the transferred person expires, or the Requested State advises the Requesting State 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 present in the Requesting State pursuant to a request seeking that person’s attendance.

Safe Conduct

(1) Subject to Article 11(2), a person present in the Requesting State in response to a request seeking that person’s attendance pursuant to Articles 9 or 11 shall not be prosecuted, detained or subjected to any other restriction of personal liberty in that State for any acts or convictions which preceded that person’s departure from the Requested State, nor shall that person be obliged to give evidence in any proceedings 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 Requesting State, 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 State, has voluntarily returned.

(3) Any person who fails to appear in the Requesting State shall not be subjected to any sanction or compulsory measure in the Requested State.

ARTICLE 13

Proceeds of Crime

(1) To the extent permitted by its internal law, the Requested State shall, upon request, provide the following assistance:

(a) locate, investigate, restrain, seize and confiscate proceeds of crime; and

(b) ensure the restitution of property belonging to victims of crime.

(2) When a State has reason to believe that the proceeds of crime are located in the other State, it shall, in making the request for assistance provided for in paragraph (l)(a), notify the Requested State of the basis of its belief that such proceeds may be located in the latter’s jurisdiction. The Requested State shall assess the measures to be taken in respect of this information and shall make known the measures taken as soon as possible.

(3) The Requested State shall, in accordance with its laws and after consulting with the Requesting State, decide the issue of sharing with the Requesting State any proceeds of crime which were confiscated pursuant to a request for assistance made in accordance with paragraph (1)(a).

PART III - PROCEDURE

ARTICLE 14

Contents of Request

(1) In all cases requests for assistance shall include the following information:

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

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

(c) the reason for the request and the nature of the assistance sought; and

(d) an indication of the time limit within which compliance with the request is desired.

(2) In the following cases, requests for assistance shall include the following information:

(a) in the case of a request for the taking of evidence or search and seizure, a statement indicating the basis for belief that evidence may be found within the territory of the Requested State;

(b) in the case of a request to take evidence from a person, details 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 a request for the lending of exhibits, the person who will have custody of the exhibits, the place to which the exhibits are to be removed, any tests to be conducted upon the exhibits and the date by which the exhibits will be returned; and

(d) in the case of a request to make detained persons available to the Requesting State, the person who will have custody of the detained person during the transfer, the place to which the detained person is to be transferred and the date of the person’s return.

If the information provided for in paragraphs (c) and (d) are not contained in the request, the information shall be provided as soon as possible thereafter.

(3) If necessary and whenever it is possible, requests for assistance shall also contain the following information:

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

(b) details of any particular procedure that the Requesting State wishes to be followed and the reasons therefor; and

(c) the need, if any, for confidentiality and the reasons therefor.

(4) If the Requested State considers that the information contained in the request is insufficient, it may request that additional details be furnished.

(5) A request shall be made in writing. In urgent circumstances or where permitted by the Requested State, a request may be made by facsimile but shall promptly be confirmed in writing.

ARTICLE 15

Central Authorities

(1) Pursuant to the present Treaty, all requests and responses shall be transmitted and received by the central authorities, without, however, excluding the transmission through diplomatic channels where the particular circumstances require it.

(2) The central authority for Canada shall be the Minister of Justice or the officials designated by that Minister; the central authority for Belgium shall be the Minister of Justice or that Minister’s representative or delegate.

ARTICLE 16

Confidentiality

(1) The Requested State may require that information or evidence furnished or the source of such information or evidence be kept confidential or that its disclosure or use be subject to such terms and conditions as it may specify.

(2) The Requesting State shall notify the Requested State of the extent to which it can comply with the requirements of the Requested State. The Requested State shall then determine whether to refuse or defer execution of the request for assistance.

(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.

(4) If it is impossible to execute a request without compromising the confidentiality requirements of the Requesting State, the Requested State shall notify the Requesting State and the latter shall decide whether or not to withdraw its request.

ARTICLE 17

Limitation of Use of Information

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.

ARTICLE 18

Authentication

Evidence, documents and information transmitted pursuant to this Treaty shall not require any form of authentication, save as is specified in Article 6.

ARTICLE 19

Language

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

Expenses

(1) The Requested State shall assume the costs of executing the request for assistance, except for the following costs which shall be borne by the Requesting State:

(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 or Requested State pursuant to a request under Articles 8 (2), 9 or 11;

(b) the expenses and fees of experts, whether arising in the Requested State or the Requesting State.

(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 21

Other Assistance

This Treaty shall not interfere with any mutual legal assistance obligations arising from other treaties or arrangements between the Contracting States nor with any other form of assistance between the competent authorities of the Contracting States.

ARTICLE 22

Scope of Application

This Treaty shall apply to any requests presented after its entry into force, even if the relevant acts or omissions arose prior to that date.

ARTICLE 23

Consultations

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

Coming into Force and Denunciation

(1) Each Contracting State shall notify the other when it has fulfilled the necessary requirements for the entry into force of this Treaty.

(2) This Treaty shall enter into force on the first day of the second month following the receipt of the last notification.

(3) Each State shall be entitled to terminate this Treaty at any time by notifying the other through diplomatic channels. The termination shall take effect one year from the date on which this notification is received.

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

EXECUTED in duplicate at Brussels on the 11th day of January 1996, in English, French and Dutch, each version being equally authentic.

FOR THE GOVERNMENT OF CANADA:

Jean-Paul Hubert

FOR THE GOVERNMENT OF THE KINGDOM OF BELGIUM:

Stefaan De Clerck