prop · H003170 · 2013-06-11 00:00:00 — If the requ ested Party has no access to the technical m eans for vid eo conferencing, su ch m eans m ay be m ad e available to it by the requ esting Party by m u tu al agreem ent. Requ ests for a hearing by vid eo conference shall contain, in ad d ition inform ation referred to in Article 14 of the Convention, the reason w hy it d esirable or p ossible for the w itness or exp ert to attend in p erson, the nam e ju d icial au thority and of the p ersons w ho w ill be cond u cting the hearing. 4The ju d icial au thority of the requ ested Party shall su m m on the p erson concerned to ap p ear in accord ance w ith the form s laid d ow n by its law . ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 5 With reference to hearing by vid eo conference, the follow ing ru les shall ap p ly: a ju d icial au thority of the requ ested Party shall be p resent d u ring the hearing, w here necessary assisted by an interp reter, and shall also be resp onsible for ensu ring both the id entification of the p erson to be heard and resp ect for the fu nd am ental p rincip les of the law of the requ ested Party. If the ju d icial au thority of the requ ested Party is of the view that d u ring the hearing the fu nd am ental p rincip les of the law of the requ ested Party are being infringed , it shall im m ed iately take the necessary m easu res to ensu re that the hearing continu es in accord ance w ith the said p rincip les; bm easu res for the p rotection of the p erson to be heard shall be agreed , w here necessary, betw een the com p etent au thorities of the requ esting and the requ ested Parties; the hearing shall be cond u cted d irectly by, or u nd er the d irection of, the ju d icial au thority of the requ esting Party in accord ance w ith its ow n law s; dat the requ est of the requ esting Party or the p erson to be heard , the requ ested Party shall ensu re that the p erson to be heard is assisted by an interp reter, if necessary; the p erson to be heard m ay claim the right not to testify w hich w ou ld accru e to him or her u nd er the law of either the requ ested or the requ esting Party. Withou t p reju d ice to any m easu res agreed for the p rotection of p ersons, the ju d icial au thority of the requ ested Party shall on the conclu sion of the hearing d raw u p m inu tes ind icating the d ate and p lace of the hearing, the id entity of the p erson heard , the id entities and fu nctions of all other p ersons in the requ ested Party p articip ating in the hearing, any oaths taken and the technical cond itions u nd er w hich the hearing took p lace. The d ocu m ent shall be forw ard ed by the com p etent au thority of requ ested Party to the com p etent au thority of the requ esting Party. Each Party shall take the necessary m easu res to ensu re that, w here w itnesses exp erts are being heard w ithin its territory, in accord ance w it h this article, and refu se to testify w hen u nd er an obligation to testify or d o not testify accord ing to the tru th, its national law ap p lies in the sam e w ay as if the hearing took p lace in a national p roced u re. m ay at their d iscretion also ap p ly the p rovisions article, w here ap p rop riate and w ith the agreem ent of their com p etent hearings by vid eo conference involving the accu sed p erson or the su sp ect. case, the d ecision to hold the vid eo conference, and t he m anner in w hich the vid eo conference shall be carried ou t, shall be su bject to agreem ent betw een the Parties concerned , in accord ance w ith their national law and relevant international instru m ents. H earings involving the accu sed p erson or the carried ou t w ith his or her consent. m ay, at any tim e, by m eans of a d eclaration ad d ressed to the Secretary General of the Cou ncil of Eu rop e, d eclare that it w ill not avail itself of the p ossibility p rovid ed in p aragrap h 8 above of also ap p lying the p rovisions of this article to hearings by vid eo conference involving the accu sed p erson or the su sp ect. 8 ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 Article 10 Hearing by telephone conference If a p erson is in one Party's territory and has to be heard as a w itness or exp ert by au thorities of another Party, the latter m ay, w here its national law so p rovid es, requ est the assistance of the form er Party to enable the hearing to take p lace by telep hone conference, as p rovid ed for in p aragrap hs 2 to 6. A hearing m ay be cond u cted by telep hone conference only if the w itness or exp ert agrees that the hearing take p lace by that m ethod . The requ ested Party shall agree to the hearing by telep hone conference w here this is not contrary to fu nd am ental p rincip les of its law . A requ est for a hearing by telep hone conference shall contain, in ad d ition to the inform ation referred to in Article 14 of the Convention, the nam e of the ju d icial au thority and of the p ersons w ho w ill be cond u cting the hearing a nd an ind ication that the w itness or exp ert is w illing to take p art in a hearing by telep hone conference. The p ractical arrangem ents regard ing the hearing shall be agreed betw een the Parties When agreeing su ch arrangem ents, the requ ested Par ty shall u nd ertake notify the w itness or exp ert concerned of the tim e and the venu e of the ensu re the id entification of the w itness or exp ert; verify that the w itness or exp ert agrees to the hearing by telep hone 6The requ ested Party m ay m ake its agreem ent su bject, fu lly or in p art, to the relevant p rovisions of Article 9, p aragrap hs 5 and 7. Article 11 Spontaneous information Withou t p reju d ice to ow n investigations or p roceed ings, au thorities of a Party w ithou t p rior requ est, au thorities of another Party inform ation obtained w ithin the fram ew ork of their ow n investigations, w hen they consid er that the d isclosu re of su ch inform ation m ight assist the receiving Party in initiating or carrying ou t investigations or p roceed ings, or m ight lead to a requ est by that Party u nd er the Convention or its Protocols. 2The p rovid ing Party m ay, p u rsu ant to its national law , im p ose cond itions on the u se of su ch inform ation by the receiving Party. The receiving Party shall be bou nd by those cond itions. H ow ever, any m ay, at any tim e, by m eans of a d eclaration ad d ressed to the Secretary General of the Cou ncil of Eu rop e, d eclare that it reserve s the right not to be bou nd by the cond itions im p osed by the p rovid ing Party u nd er p aragrap h 2 above, u nless it receives p rior notice of the natu re of the inform ation to be p rovid ed and agrees to its transm ission. 9 ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 At the requ est of the requ esting Party and w ithou t p reju d ice to the rights of bona fid e third p arties, the requ ested Party m ay p lace articles obtained by crim inal m eans at the d isp osal of the requ esting Party w ith a view to their retu rn to their rightfu l ow ners. In ap p lying Articles 3 and 6 of the Convention, the requ ested Party m ay w aive the retu rn of articles either before or after hand ing them over to the requ esting Party if the restitu tion of su ch articles to the rightfu l ow ner m ay be facilitated thereby. rights of bona fid e third p arties shall not be affected . In the event of a w aiver before hand ing over the articles to the requ esting Party, the requ ested Party shall exercise no secu rity right or other right of recou rse u nd er tax or cu stom s legislation in resp ect of these articles. A w aiver as referred to in p aragrap h 2 shall be w ithou t p reju d ice to the right of the requ ested Party to collect taxes or d u ties from the rightfu l ow ner. Article 13 Temporary transfer of detained persons to the requested Party Where there is agreem ent betw een the com p etent au thorities of the Parties concerned , a Party w hich has requ ested an investigation for w hich the p resence of a p erson held in cu stod y on its ow n territory is requ ired m ay tem p orarily transfe r that p erson to the territory of the Party in w hich the investigation is to take p lace. 2The agreem ent shall cover the arrangem ents for the tem p orary transfer of the p erson and the d ate by w hich the p erson m u st be retu rned to the territory of the requ e sting Party. 3Where consent to the transfer is requ ired from the p erson concerned , a statem ent of consent or a cop y thereof shall be p rovid ed p rom p tly to the requ ested Party. The transferred p erson shall rem ain in cu stod y in the territory of the re qu ested Party and , w here ap p licable, in the territory of the Party throu gh w hich transit is requ ested , u nless the Party from w hich the p erson w as transferred ap p lies for his or her release. The p eriod of cu stod y in the territory of the requ ested Party shall be d ed u cted from the p eriod of d etention w hich the p erson concerned is or w ill be obliged to u nd ergo in the territory of the requ esting Party. 6The p rovisions of Article 11, p aragrap h 2, and Article 12 of the Convention shall ap p ly mutatis mutandis. 7Any m ay at any tim e, by m eans of a d eclaration ad d ressed to the Secretary General of the Cou ncil of Eu rop e, d eclare that before an agreem ent is reached u nd er p aragrap h 1 of this article, the consent referred to in p aragrap h 3 of this article w ill be requ ired , or w ill be requ ired u nd er certain cond itions ind icated in the d eclaration. 10 ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 Article 14 Personal appearance of transferred sentenced persons The p rovisions of Articles 11 and 12 of the Convention shall ap p ly m u tatis m u tand is also to p ersons w ho are in cu stod y in the requ ested Party, p u rsu ant to having been transferred in ord er to serve a sentence p assed in the requ esting Party, w here their p ersonal ap p earance for p u rp oses of review of the ju d gem ent is ap p lied for by t he requ esting Party. Article 15 Language of procedural documents and judicial decisions to be served The p rovisions of this article shall ap p ly to any requ est for service u nd er Article 7 of the Convention or Article 3 of the Ad d itional Protocol t hereto. Proced u ral d ocu m ents and ju d icial d ecisions shall in all cases be transm itted in the langu age, or the langu ages, in w hich they w ere issu ed . N otw ithstand ing the p rovisions of Article 16 of the Convention, if the au thority that issu ed the p ap ers know s or has reasons to believe that the ad d ressee u nd erstand s only som e other langu age, the p ap ers, or at least the m ost im p ortant p assages thereof, shall be accom p anied by a translation into that other langu age. N otw ithstand ing of the Convention, p roced u ral d ocu m ents and ju d icial d ecisions benefit of the au thorities of the requ ested Party, be accom p anied by a short su m m ary of their contents translated into the langu age, or one of the langu ages, of that Party. Article 16 Service by post The com p etent ju d icial au thorities of any Party m ay d irectly ad d ress, by p ost, p roced u ral d ocu m ents and ju d icial d ecisions, to p ersons w ho are in the territory of any other Party. 2Proced u ral d ocu m ents and ju d icial d ecisions shall be accom p anied by a rep ort stating that the ad d ressee m ay obtain inform ation from the au thority id entified in the rep ort, regard ing his or her rights and obligations concerning the service of the p ap ers. p rovisions of p aragrap h 3 of Article 15 above shall ap p ly to that rep ort. 3The p rovisions of Articles 8, 9 and 12 of the Convention shall ap p ly mutatis mutandis to service by p ost. 4The p rovisions of p aragrap hs 1, 2 and 3 of Article 15 above shall also ap p ly to service by p ost. Article 17 Cross-border observations the Parties w ho, w ithin the fram ew ork of a u nd er observation in their cou ntry a p erson p resu m ed to have taken p art in a crim inal offence to w hich extrad ition m ay ap p ly, or a p erson w ho it is strongly believed w ill lead to the id entification or location of the above-m entioned p erson, shall be au thorised to continu e their observation in the territory of another Party w here the latter ha s au thorised cross-bord er observation in resp onse to a requ est for assistance w hich has p reviou sly been su bm itted . Cond itions m ay be attached to the au thorisation. 11 ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 On requ est, the observation w ill be entru sted to officers of the Party in w hose territory it is carried ou t. The requ est for assistance referred to in the first su b -p aragrap h m u st be sent to an au thority d esignated by each Party and having ju risd iction to grant or to forw ard the requ ested au thorisation. 2 Where, for p articu larly u rgent reasons, p rior au thorisation of the other Party cannot be requ ested , the officers cond u cting the observation w ithin the fram ew ork of a crim inal investigation shall be au thorised to continu e beyond the bord er the observation of a p erson p resu m ed to have com m itted offences listed in p aragrap h 6, p rovid ed that the follow ing cond itions are m et: the au thorities of the Party d esignated u nd er p aragrap h 4, in w hose territory the observation is to be continu ed , m u st be notified im m ed iately, d u ring the observation, that the bord er has been crossed ; a requ est for assistance su bm itted in accord ance w ith p aragrap h 1 and ou tlining the grou nd s for crossing the bord er w ithou t p rior au thorisation shall be su bm itted w ithou t d elay. Observation shall cease as soon as the Party in w hose territory it is taking p lace so requ ests, follow ing the notification referred to in a. or the requ est referred to in b. or w here au thorisation has not been obtained w ithin five hou rs of the bord er being crossed . 3The observation referred to in p aragrap hs 1 and 2 shall be carried ou t only u nd er the follow ing general cond itions: The officers cond u cting the observation m u st com p ly w ith the p rovisions of and w ith the law of the Party in w hose territory they are op erating; they m u st obey the instru ctions of the local resp onsible au thorities. Excep t in the situ ations p rovid ed for in p aragrap h 2, the officers shall, d u ring the observation, carry a d ocu m ent certifying that au thorisation has been The officers cond u cting the observation m u st be able at all tim es to p rovid e p roof that they are acting in an official cap acity. cond u cting the observation m ay carry their service w eap ons d u ring the observation, save w here sp ecifically otherw ise d ecid ed by the requ ested Party; their u se shall be p rohibited save in cases of legitim ate self - Entry into p rivate hom es and p laces not accessible to the p u blic shall be fThe officers cond u cting the observation m ay n either stop and qu estion, nor arrest, the p erson u nd er observation. All op erations shall be the su bject of a rep ort to the au thorities of the Party in w hose territory they took p lace; the officers cond u cting the observation m ay be requ ired to ap p ear in p erson. 12 ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 hThe au thorities of the Party from w hich the observing officers have com e shall, w hen requ ested by the au thorities of the Party in w hose territory the observation took p lace, assist the enqu iry su bsequ ent to the op eration w hich they took p art, inclu d ing legal p roceed ings. Parties shall at the tim e of signatu re or w hen d ep ositing their instru m ent ratification, accep tance, ap p roval or accession, by m eans of a d eclaration ad d ressed to the Secretary General of the Cou ncil of Eu rop e, ind icate both the officers and au thorities that they d esignate for the p u rp oses of p aragrap hs 1 and 2 of this article. They su bsequ ently m ay, at any tim e and in the sam e m anner, change the term s of their d eclaration. The Parties m ay, at bilateral level, extend the scop e of this article and ad op t ad d itional m easu res in im p lem entation thereof. 6The observation referred to in p aragrap h 2 m ay take p lace only for one of the follow ing crim inal offences: m u rd er; arm ed robbery and receiving of stolen good s; kid nap p ing and hostage taking; traffic in hu m an beings; illicit traffic in narcotic d ru gs and p sychotrop ic su bstances; breach of the law s on arm s and exp losives; u se of exp losives; illicit carriage of toxic and d angerou s w aste; sm u ggling of aliens; sexu al abu se of child ren. Article 18 Controlled delivery Each Party u nd ertakes to ensu re that, at the requ est of another Party, contr olled m ay be p erm itted on its fram ew ork of investigations into extrad itable offences. The d ecision to carry ou t controlled d eliveries shall be taken in each ind ivid u al case by the com p etent au thorities of the requ ested Party, w ith d u e regard to the national law of that Party. d eliveries shall take p lace in accord ance w ith the p roced u res of the Com p etence to act, d irect and control op erations shall lie w ith the com p etent au thorities of that Party. Parties shall at the tim e of signatu re or w hen d ep ositing their instru m ent of ratification, accep tance, ap p roval or accession, by m eans of a d eclaration ad d ressed to the Secretary General of the Cou ncil of Eu rop e, ind icate com p etent for the p u rp oses of this article. They su bsequ ently m ay, at any tim e and in the sam e m anner, change the term s of their d eclaration. 13 ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 1The requ esting and the requ ested Parties m ay agree to assist one another in the cond u ct of investigations into crim e by officers acting u nd er or false id entity (investigations). The d ecision on the requ est is taken in each ind ivid u al case by the com p etent au thorities of the requ ested Party w ith d u e regard to its national law and p roced u res. The d u ration of the investigation, the d etailed cond itions, and the legal statu s of the officers concerned d u ring investigations shall be agreed betw een the Parties w ith d u e regard to their national law and p roced u res. in accord ance w ith p roced u res of the Party on the territory of w hich the investigation takes p lace. The Parties involved shall co-op erate p rep ared and su p ervised and to m ake arrangem ents for the secu rity of the officers acting u nd er or false id entity. Parties shall at the tim e of signatu re d ep ositing their instru m ent of ratification, accep tance, ap p rov al or accession, by m eans of a d eclaration ad d ressed to the Secretary General of the Cou ncil of Eu rop e, ind icate the au thorities that com p etent for the p u rp oses of p aragrap h 2 of this article. They su bsequ ently m ay, at any tim e and in the sam e m anner, change the term s of their d eclaration. Article 20 Joint investigation teams By m u tu al agreem ent, the com p etent au thorities of tw o or m ore Parties m ay set u p a joint investigation team for a sp ecific p u rp ose and p eriod , w hich m ay be extend ed by m u tu al consent, to carry ou t crim inal investigations in one or m ore of the Parties setting u p the team . The com p osition of the team shall be set ou t in the A joint investigation team m ay, in p articu lar, be set u p w here: d em and ing investigations having links w ith other Parties; a nu m ber of Parties are cond u cting investigations into crim inal offences in w hich the circu m stances of the case necessitate co -ord inated , concerted action in the Parties involved . A requ est for the setting u p of a joint investigation team m ay be m ad e by any of the The team shall be set u p in one of the Parties in w hich investigations are exp ected to be carr ied ou t. In ad d ition to the inform ation referred to in the relevant p rovisions of Article 14 of the Convention, requ ests for the setting u p of a joint investigation team shall inclu d e p rop osals for the com p osition of the team . 3A joint investigation team shall op erate in the territory of the Parties setting u p the team u nd er the follow ing general cond itions: 14 ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 the lead er of the team shall be a rep resentative of the com p etent au thority in w hich the team act w ithin the lim its of his or her com p etence u nd er national law ; the team shall carry ou t its op erations in accord ance w ith the law of the Party in w hich it op erates. The m em bers and second ed m e m bers of the team shall carry ou t their tasks u nd er the lead ership of the p erson referred to in su b - p aragrap h a, taking into accou nt the cond itions set by their ow n au thorities in the agreem ent on setting u p the team ; cthe Party in w hich the team op erates shall m ake the necessary organisational arrangem ents for it to d o so. 4 In this article, m em bers of the joint investigation team from the Party in w hich the team op erates are referred to as m em bers, w hile m em bers from Parties other than the Party in w hich the team op erates are referred to as second ed m em bers. 5Second ed m em bers of the joint investigation team shall be entitled to be p resent w hen investigative m easu res are taken in the Party of op eration. H ow ever, the lead er of the team m ay, for p articu lar reasons, in accord ance w ith the law of the Party w here the team op erates, d ecid e otherw ise. Second ed m em bers of the joint investigation team m ay, in accord ance w ith the law of the Party w here the team op erates, be entru sted by the lead er of the team w ith the task of taking certain investigative m easu res w here this has been ap p roved by the com p etent au thorities of the Party of op eration and the second ing Party. Where the joint investigation team need s investigative m easu res to be take n in one of the Parties setting u p the team , m em bers second ed to the team by that Party m ay requ est their ow n com p etent au thorities to take those m easu res. Those m easu res shall be consid ered in that Party u nd er the cond itions w hich w ou ld ap p ly if they w ere requ ested in a national investigation. 8Where the joint investigation team need s assistance from a Party other than those w hich have set u p the team , or from a third State, the requ est for assistance m ay be m ad e by the com p etent au thorities of the State of op eration to the com p etent au thorities of the other State concerned in accord ance w ith the relevant instru m ents or arrangem ents. 9A second ed m em ber of the joint investigation team m ay, in accord ance w ith his or her national law and w ithin the lim its of his or her com p etence, p rovid e the team w ith inform ation available in the Party w hich has second ed him or her for the p u rp ose of the crim inal investigations cond u cted by the team . 10Inform ation law fu lly obtained by a m em ber or second ed m em ber w hile p art of a joint investigation team w hich is not otherw ise available to the com p etent au thorities of the Parties concerned m ay be u sed for the follow ing p u rp oses: for the p u rp oses for w hich the team has been set u p ; 15 ETS 182 Mutual assistance in criminal matters (Second Additional Protocol), 8.XI.2001 bsu bject to the p rior consent of the Party w here the inform ation becam e available, for d etecting, investigating and p rosecu ting other crim inal offences.