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Treaty between Canada and the Federal Republic of Germany on Mutual Assistance in Criminal Matters [2004] CATSer 19 (23 October 2004)

E104860

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

CANADA AND THE FEDERAL REPUBLIC OF GERMANY,

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:

ARTICLE 1

Obligation 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, 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, irrespective of whether the assistance is sought or to be provided by a court or some other authority.

(3) Criminal matters, for the purpose of paragraph 1, means, for Germany, investigations or proceedings relating to acts or omissions categorized as criminal offences or regulatory offences (Ordnungswidrigkeiten) in so far as such regulatory offences are before a criminal Court, and, for Canada, investigations or proceedings relating to any offence created by a law of Parliament or by the legislature of a province.

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

(5) Assistance shall include:

a) taking of evidence and obtaining of statements of persons;

b) provision of information, documents and other records, including extracts from criminal records;

c) location of persons and objects, including their identification;

d) search and seizure;

e) delivery of property, including lending of exhibits;

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

g) service of documents, including documents seeking the attendance of persons; and

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

(6) This Treaty shall not apply to requests for:

a) extradition and the arrest or detention of any person with a view to extradition;

b) subject to Article 6 of this Treaty, the execution in the Requested State of criminal judgments imposed in the Requesting State; or

c) the transfer of prisoners to serve sentences.

(7) This treaty shall not apply to investigations or proceedings under the anti-combines law of either Contracting Party.

ARTICLE 2

Refusal or Postponement 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 (ordre public) or similar essential public interest, prejudice the safety of any person or be unreasonable on other grounds.

(2) Assistance may be postponed by the Requested State on the ground that the immediate granting of the assistance may interfere with an ongoing investigation or proceeding.

(3) Before refusing to grant a request for assistance or before postponing the grant of such assistance, 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.

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

ARTICLE 3

Dual Criminality

(1) The execution of requests for assistance requiring the use of compulsory measures may be refused if the alleged acts or omissions giving rise to the request would not constitute an offence known to law in the Requested State.

(2) Paragraph 1 shall not apply to compulsory measures concerning the taking of evidence from a witness or an expert.

(3) The execution of requests for assistance relating to an offence in connection with the international transfer of capital or payments may be refused in the absence of dual criminality.

ARTICLE 4

Delivery of Property

(1) In response to a request for assistance, property which may be used in investigations or serve as evidence in proceedings in the Requesting State shall be delivered to that State by the Requested State upon such terms and conditions as the Requested State sees fit. In addition, property may be returned to the person who was deprived of it.

(2) The delivery of property pursuant to paragraph 1 of this Article shall not affect the rights of third parties.

ARTICLE 5

Return of Property

Any property, including original records or documents, handed over in execution of a request, shall be returned by the Requesting State to the Requested State as soon as possible, unless the latter State waives the obligation to return that property.

ARTICLE 6

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. 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) Where, pursuant to a request under 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 freeze, seize and confiscate such proceeds.

(3) In the application of this Article, the rights of third parties under the law of the Requested State shall be respected.

ARTICLE 7

Presence of Persons Involved in the Proceedings

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

(2) Judges or officials of the Requesting State and other persons concerned in the investigation or proceedings may be permitted, to the extent not prohibited by the law of the Requested State, 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 propose questions and other investigative measures. The persons present at the execution of a request shall be permitted to make a verbatim transcript of the proceedings. The use of technical means to make such a verbatim transcript shall be permitted. Visual records shall be permitted only with the consent of the persons concerned.

ARTICLE 8

Making Detained Persons Available to Give Evidence or Assist Investigations

(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 proceedings provided that the person consents to that transfer and there are no overriding grounds against transferring the person.

(2) While 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 either at the conclusion of the taking of the evidence, or at such earlier time stipulated by the Requested State.

(3) Where the sentence imposed expires, or where 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.

ARTICLE 9

Safe Conduct

(1) A witness or expert present in the Requesting State 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 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 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 territory, has voluntarily returned.

(3) A person, who does not respond to a request seeking that person's attendance, shall not, even if the request refers to a notice of penalty, be subjected to any punishment or measure of constraint.

ARTICLE 10

Contents of Request

(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 and the authority making the request;

b) the purpose for which the request is made and the nature of the assistance sought;

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

d) a description of the acts or omissions alleged to constitute the offence and a statement of the relevant law.

(2) In addition, requests for assistance shall include:

a) in the case of requests for service of documents, the name and address of the person to be served;

b) in the case of requests for compulsory measures, a statement indicating the reasons for which it is believed that evidence is located in the territory of the Requested State, unless this appears from the request itself;

c) in the case of delivery of property obtained or to be obtained by search and seizure, a declaration by a competent authority that seizure could be obtained by compulsory measures if the property were situated in the Requesting State;

d) 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 and the date by which the exhibit will be returned;

e) in the case of requests to take evidence from a person, the subject matter on which the person is to be examined, including, where possible, a list of questions and details of any right of that person to decline to give evidence;

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;

g) details of any particular procedure the Requesting State wishes to be followed, and the reasons therefor;

h) any requirements for confidentiality.

(3) Additional information shall be furnished if it appears necessary to the Requested State for the execution of any specific request.

ARTICLE 11

Channels of Communication

(1) Requests for assistance may be made by or on behalf of courts, prosecutors and authorities responsible for investigations or prosecutions related to criminal matters. Requests and responses thereto shall be channelled through the Minister of Justice of Canada and the Federal Ministry of Justice of Germany. In urgent cases, transmission of requests for assistance may take place through the International Criminal Police Organization (Interpol).

(2) In the case of a request by Canada to Germany for co-operation relating to operations by police or customs officials involving joint investigations, controlled deliveries or undercover operations, the request may be made by Canadian police authorities directly to the Federal Ministry of Justice of Germany. In urgent cases the request may be made to the Federal Ministry of Justice, by the Canadian Police, through the Bundeskriminalamt. In the case of a request by Germany to Canada for such co-operation, the request may be made by appropriate German judicial authorities directly to the Royal Canadian Mounted Police.

ARTICLE 12

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 requested by the Requesting State.

(2) If the Requesting State desires witnesses or experts to give evidence under oath, it shall expressly so request.

(3) Unless original documents are expressly requested, the provision of certified copies of those documents shall be sufficient compliance with the request. Such a request shall be treated as a request for the provision of information.

ARTICLE 13

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 may require that the request, its contents, supporting documents and any action taken pursuant to the request be kept confidential. If the request cannot be executed without breaching the confidentiality requirement, the Requested State shall so inform the Requesting State prior to executing the request and the latter shall then determine whether the request should nevertheless be executed.

ARTICLE 14

Personal Data

(1) Personal data, hereinafter referred to as data, shall be understood to be particulars on the personal and factual situation of an identified or identifiable natural person.

(2) Data transmitted on the basis of this Treaty shall be used for the purposes for which the data were transmitted and on the conditions determined by the transmitting Party in an individual case. In addition such data may be used for the following purposes:

a) for the prevention and prosecution of offences in respect of which data may be transmitted pursuant to this Treaty;

b) for non-criminal court proceedings and administrative proceedings which are related to the use for which the data were originally requested or related to the use outlined in sub-paragraph (a); and

c) to ward off substantial dangers to public security.

Use of the data for other purposes requires the prior consent of the Party transmitting the data concerned.

(3) Subject to the domestic legal provisions of each Party, the following provisions shall apply to the transmission and use of data:

a) Upon request, the Party which has received the data shall identify the data received, inform the transmitting Party of the use made of the data and the results achieved therefrom;

b) The Parties shall carefully handle data transmitted under this Treaty and pay particular attention to the accuracy and completeness of such data. Only data that relates to the request shall be transmitted. If it appears that incorrect data have been transmitted or that data that should not have been transmitted were transmitted, the Party that has received the data shall be notified without delay. The Party that has received the data shall rectify or correct any errors or return the data;

c) The Parties shall keep records in an appropriate form concerning the transmission and receipt of data;

d) The Parties shall afford protection of the data transmitted against unauthorized access, unauthorized alteration and unauthorized publication.

ARTICLE 15

Authentication

Unless otherwise requested, evidence or documents transmitted pursuant to this Treaty shall not require any form of authentication .

ARTICLE 16

Language

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

ARTICLE 17

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 providing or continuing to provide assistance to each other pursuant to other treaties, arrangements or otherwise.

ARTICLE 18

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;

b) the expenses associated with conveying custodial or escorting officers; and

c) the expenses and fees of experts either 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 Parties shall consult to determine the terms and conditions under which the requested assistance can be provided.

ARTICLE 19

Scope of Application

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

ARTICLE 20

Consultations

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

ARTICLE 21

Ratification, Entry into Force and Termination

(1) This Treaty shall be subject to ratification. The instruments of ratification shall be exchanged as soon as possible.

(2) This Treaty shall enter into force one month after the exchange of instruments of ratification.

(3) Either Contracting Party may terminate this Treaty. The termination shall take effect one year from the date on which it was notified to the other Contracting Party.

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

Done at Tremblant, on the 13th day of May 2002, in two copies, in English, French and German, each version being equally authentic.

FOR CANADA

Martin Cauchon

FOR THE FEDERAL REPUBLIC OF GERMANY

Georg Wilhelm Birgelen

Eckhart Pick