Mutual Legal Assistance in Criminal Matters (Czech Republic) Order
(Enacting provision omitted—E.R. 2 of 2014)
[13 February 2015] L.N. 19 of 2015
(Omitted as spent—E.R. 3 of 2015)
In relation to the arrangements for mutual legal assistance a copy of which is annexed at Schedule 1, it is directed that the Ordinance, subject to the modifications specified in Schedule 2, applies as between Hong Kong and the Czech Republic.
The modifications referred to in subsection (1) are summarized in Schedule 3.
The Hong Kong Special Administrative Region of the People’s Republic of China (hereinafter “the Hong Kong Special Administrative Region”) having been duly authorised by the Central People’s Government of the People’s Republic of China to conclude this Agreement and the Czech Republic (hereinafter “the Contracting Parties”);
Desiring to improve the effectiveness of law enforcement of the Contracting Parties in criminal matters;
Have agreed as follows:
The Contracting Parties shall provide, in accordance with the provisions of this Agreement, mutual assistance in criminal matters, in particular assistance in the detection and prosecution of criminal offences, including their investigation, and in the confiscation of criminal proceeds.
Assistance shall include:
identifying and locating persons;
serving documents;
obtaining statements and evidence from persons;
executing requests for search and seizure;
facilitating the personal appearance of persons to provide assistance;
effecting the temporary transfer of prisoners to provide assistance;
providing information, documents and records (including judicial and any other official records);
tracing, restraining and confiscating the proceeds and instrumentalities of criminal activities;
delivery of articles and lending of exhibits; and
any other assistance consistent with the laws of the Requested Party.
Proceedings relating to criminal matters do not include proceedings related to the regulations involving the imposition, calculation or collection of taxes.
This Agreement is intended solely for mutual assistance between the Contracting Parties. The provisions of this Agreement shall not give rise to any right on the part of any private person to obtain, suppress or exclude any evidence or to impede the execution of a request.
The Contracting Parties shall seek and provide assistance through their Central Authorities.
The Central Authority of the Hong Kong Special Administrative Region is the Secretary for Justice or his or her duly authorised officer. The Central Authority for the Czech Republic is the Ministry of Justice or a state authority authorised by the Ministry of Justice.
The Central Authorities may communicate directly with each other for the purposes of this Agreement.
Either Contracting Party may change its Central Authority in which case it shall notify the other of the change.
A request and all documents submitted in support of a request shall be translated, if so required by the Requested Party, into an official language of the Requested Party.
The Requested Party shall refuse assistance if:
granting the assistance would impair the sovereignty, security or public order of, in the case of the Hong Kong Special Administrative Region, the People’s Republic of China, or of the Czech Republic;
the request for assistance relates to an offence of a political character;
the request for assistance relates to an offence only under military law;
there are substantial grounds for believing that the request for assistance will result in a person being prejudiced on account of his race, religion, nationality, sex or political opinions;
there are substantial grounds for believing that the request for assistance will result in a person being subjected to torture or other cruel or inhuman or degrading treatment or punishment;
the request for assistance relates to the prosecution of a person for an offence in respect of which the person has been convicted, acquitted or pardoned in the Requested Party or for which the person could no longer be prosecuted by reason of lapse of time if the offence had been committed within the jurisdiction of the Requested Party;
it is of the opinion that the granting of the request would seriously impair its essential interests;
the Requesting Party cannot comply with any conditions required by the Requested Party in relation to confidentiality or limitation as to the use of material provided; or
the acts or omissions alleged to constitute the offence would not, if they had taken place within the jurisdiction of the Requested Party, have constituted an offence.
For the purpose of paragraph (1)(g) the Requested Party may include in its consideration of essential interests whether the provision of assistance could prejudice the safety of any person or impose an excessive burden on the resources of the Requested Party.
The Requested Party may refuse assistance if the request relates to an offence which carries the death penalty in the Requesting Party but in respect of which the death penalty is either not provided for in the Requested Party or not normally carried out unless the Requesting Party gives such assurances as the Requested Party considers sufficient that the death penalty will not be imposed or, if imposed, not carried out.
The Requested Party may postpone assistance if execution of the request would interfere with any proceedings (including any investigation) in a criminal matter in the Requested Party.
Before denying or postponing assistance pursuant to this Article, the Requested Party, through its Central Authority:
shall promptly inform the Requesting Party of the reason for considering denial or postponement; and
shall consult with the Requesting Party to determine whether assistance may be given subject to such terms and conditions as the Requested Party deems necessary.
If the Requesting Party accepts assistance subject to the terms and conditions referred to in paragraph (5)(b), it shall comply with those terms and conditions.
Requests shall be made in writing. A request sent by fax shall be confirmed by mailing the original immediately.
Requests for assistance shall include:
the name of the authority concerned with the criminal matter to which the request relates;
a description of the purpose and the nature of the assistance requested;
a description of every offence to which the request relates, with a summary of the facts and text of the relevant law;
the identity of the person, if known, by whom the offence is alleged or suspected to have been committed;
a statement whether proceedings have been instituted and, if they have, a description of them;
any requirements for confidentiality;
details of any particular procedure the Requesting Party wishes to be followed; and
details of any period within which the assistance is required, with the reasons.
The Central Authority of the Requested Party shall promptly arrange for the execution of the request through its competent authorities.
A request shall be executed in accordance with the law of the Requested Party and, to the extent not prohibited by the law of the Requested Party, in accordance with the directions stated in the request so far as practicable.
The Requested Party shall promptly inform the Requesting Party of any circumstances which are likely to cause a significant delay in responding to the request.
The Requested Party shall promptly inform the Requesting Party of a decision not to comply in whole or in part with a request for assistance and the reason for that decision.
The Requested Party shall make all necessary arrangements for the representation of the Requesting Party in any proceeding arising out of a request for assistance and shall otherwise represent the interests of the Requesting Party.
The Requested Party shall bear all the expenses incurred within its boundaries relating to the execution of the request except:
fees of counsel retained at the request of the Requesting Party;
fees of persons appointed to manage property;
fees of experts;
expenses of translation and extensive reproduction of documents; or
travel expenses and allowances of persons who travel or are transferred under Article 15 or 16 at the request of the Requesting Party, together with the cost of any escorting officers.
If during the execution of the request it becomes apparent that expenses of an extraordinary nature are required to fulfil the request, the Contracting Parties shall consult to determine the terms and conditions under which the execution of the request may continue.
The Contracting Parties shall use their best endeavours to keep confidential a request and its contents, and the information and material supplied in response to a request, except in accordance with the purpose of the request or as agreed between the Contracting Parties.
The Requested Party may, after consultation with the Requesting Party, require that information or evidence furnished by the Requested Party be disclosed or used only subject to such terms and conditions as it may specify.
Where information or evidence is furnished by the Requested Party, the Requesting Party shall not use it for purposes other than those stated in the request except:
for use in other proceedings relating to the same criminal matter;
for the prevention of serious crime or of a serious threat to public order; or
with the prior consent of the Requested Party.
The Requested Party shall execute in the manner provided for by its law any request relating to a criminal matter and addressed to it by the Requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents.
For the purposes of requests under this Article the Requesting Party shall specify the questions to be put to the witnesses or the subject matter about which they are to be examined.
Where, pursuant to a request for assistance, a person is to give evidence for the purpose of proceedings in the Requesting Party, the parties to the relevant proceedings in the Requesting Party, their legal representatives or representatives of the Requesting Party may, subject to the laws of the Requested Party, appear and question the person giving that evidence.
A person who is required to give evidence in the Requested Party pursuant to a request for assistance may decline to give evidence where either:
the law of the Requested Party would permit that witness to decline to give evidence in similar circumstances in proceedings which originated in the Requested Party; or
the law of the Requesting Party would permit him to decline to give evidence in such proceedings in the Requesting Party.
If any person claims that there is a right to decline to give evidence under the law of the Requesting Party, the Requested Party shall with respect thereto rely on a certificate of the Central Authority of the Requesting Party.
Where a request is made to obtain the statement of a person for the purpose of an investigation or proceeding in relation to a criminal matter in the Requesting Party, the Requested Party shall endeavour to obtain such statement.
The Requested Party shall, if requested, endeavour to ascertain the location or identity of any person specified in the request.
The Requested Party shall endeavour to serve any document transmitted to it for the purpose of service.
The Requesting Party shall transmit a request for the service of a document pertaining to a response or appearance in the Requesting Party within a reasonable time before the scheduled response or appearance.
A request for the service of a document pertaining to an appearance in the Requesting Party shall include such notice as the Central Authority of the Requesting Party is reasonably able to provide to the Requested Party of outstanding judicial orders in criminal matters against the person to be served.
The Requested Party shall, subject to its law, return a proof of service in the manner required by the Requesting Party.
A person who fails to comply with any process served on him under this Article shall not thereby be liable to any penalty or coercive measure pursuant to the law of the Requesting Party or Requested Party.
Subject to its law the Requested Party shall provide copies of publicly available documents.
The Requested Party may provide copies of any document, record or information in the possession of a government department or official authority, but not publicly available, to the same extent and under the same conditions as such document, record or information would be available to its own law enforcement and judicial authorities.
Documents, transcripts, records, statements or other material which are to be transmitted to the Requesting Party shall only be certified or authenticated if the Requesting Party so requests. Neither Contracting Party shall require anything to be certified or authenticated by a consular or diplomatic officer.
A person in custody in the Requested Party whose presence is requested in the Requesting Party for the purposes of providing assistance pursuant to this Agreement shall if the Requested Party consents be transferred from the Requested Party to the Requesting Party for that purpose, provided the person consents and the Requesting Party has guaranteed the maintenance in custody of the person and his subsequent return to the Requested Party.
Where the grounds for keeping in custody a person transferred pursuant to this Article no longer exist, the Requested Party shall so advise the Requesting Party which shall ensure the person’s release from custody.
The Requesting Party may request the assistance of the Requested Party in inviting a person to appear in the Requesting Party to provide assistance pursuant to this Agreement.
Upon receipt of such a request the Requested Party shall invite the person to travel to the Requesting Party and inform the Requesting Party of the person’s response.
The Requesting Party shall indicate the extent to which the expenses will be paid. A person who agrees to appear may ask that the Requesting Party advance money to cover these expenses.
A person who consents to provide assistance pursuant to Article 15 or 16:
shall not be prosecuted, detained, or restricted in his personal liberty in the Requesting Party for any criminal offence which preceded his departure from the Requested Party, except as provided in Article 15;
shall not be subject to civil suit to which the person could not be subject if he were not in the Requesting Party.
Paragraph (1) shall not apply if the person, not being a person in custody transferred under Article 15, and being free to leave, has not left the Requesting Party within a period of 15 days after being notified that his presence is no longer required, or having left the Requesting Party, has returned.
A person who consents to give evidence under Article 15 or 16 shall not be subject to prosecution based on his testimony, except for perjury.
A person who consents to provide assistance pursuant to Article 15 or 16 shall not be required to give evidence in any proceedings other than the proceedings to which the request relates.
A person who does not consent to give evidence pursuant to Article 15 or 16 shall not by reason thereof be liable to any penalty or coercive measure by the courts of the Requesting Party or Requested Party.
The Requested Party shall, insofar as its law permits, carry out requests for search, seizure and delivery of any material to the Requesting Party which is relevant to a proceeding or investigation in relation to a criminal matter.
The Requested Party shall provide such information as may be required by the Requesting Party concerning the result of any search, the place of seizure, the circumstances of seizure, and the subsequent custody of the property seized.
The Requesting Party shall observe any conditions imposed by the Requested Party in relation to any seized property which is delivered to the Requesting Party. With the permission of the Requested Party, the Requesting Party may retain the property for disposal in accordance with its law.
The Requested Party shall, upon request, endeavour to ascertain whether any proceeds of crime committed against the law of the Requesting Party are located within its jurisdiction and shall notify the Requesting Party of the result 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 its jurisdiction.
Where pursuant to paragraph (1) suspected proceeds of crime are found the Requested Party shall take such measures as are permitted by its law to prevent any dealing in, transfer or disposal of, those suspected proceeds of crime, pending a final determination in respect of those proceeds by a court.
Where a request is made for assistance in securing the confiscation of proceeds the request shall be executed according to the law of the Requested Party. This may include enforcing an order made by a court in the Requesting Party and initiating or assisting in proceedings in relation to the proceeds to which the request relates.
The proceeds confiscated pursuant to this Agreement shall be retained by the Requested Party unless otherwise agreed upon between the Contracting Parties.
Without prejudice to their own investigations or proceedings, the competent authorities of a Contracting Party may, without prior request, forward to the competent authorities of the other Contracting Party information obtained within the framework of their own investigations, when they consider that the disclosure of such information might assist the Receiving Party in initiating or carrying out investigations or proceedings, or might lead to a request by that Contracting Party under this Agreement.
The Providing Party may, pursuant to its domestic law, impose conditions on the use of such information by the Receiving Party. In such a case, the Providing Party shall give prior notice to the Receiving Party of the nature of the information to be provided and of the conditions to be imposed.
The Receiving Party shall be bound by those conditions if it agrees to transmission of the information under such conditions.
Any dispute arising out of the interpretation, application or implementation of this Agreement shall be resolved through diplomatic channels if the Central Authorities are themselves unable to reach agreement.
This Agreement is not intended to prevent the Contracting Parties from seeking and granting assistance to each other through the provisions of other international treaties, agreements, arrangements or domestic laws.
This Agreement shall enter into force on the thirtieth day after the day on which the Contracting Parties have notified each other in writing that their respective requirements for the entry into force of this Agreement have been complied with.
Either Contracting Party may terminate this Agreement at any time by giving notice to the other. In that event the Agreement shall cease to have effect six months after the date of receipt of the notice.
In witness whereof the undersigned, being duly authorised thereto, have signed this Agreement.
Done at Hong Kong, this Fourth day of March, Two thousand and Thirteen, in two originals, in the Chinese, English and Czech languages, each text being equally authentic. In case of divergence of interpretation the English text shall prevail.
| Note: # |
Section 5(1)(d) of the Ordinance is modified to read as follows—
there are substantial grounds for believing that the request was made for the purpose of prosecuting, punishing or otherwise causing prejudice to a person on account of the person’s race, religion, nationality, sex* or political opinions;”.
Section 5(1) of the Ordinance is modified by adding—
there are substantial grounds for believing that the request will result in a person being subjected to torture or other cruel or inhuman or degrading treatment or punishment;*”.
Section 5(1)(e) of the Ordinance is modified to read as follows—
the request relates to the prosecution of a person for an external offence in a case where the person—*
has been convicted, acquitted or pardoned by a competent court or other authority in the place,**or Hong Kong in respect of that offence or of another external offence constituted by the same act or omission as that offence;* or
has undergone the punishment provided by the law of that place or Hong Kong*,**in respect of that offence or of another external offence constituted by the same act or omission as that offence;”.
Section 5(1) of the Ordinance is modified by adding—
the request relates to the prosecution of a person in respect of an act or omission that, if it had occurred in Hong Kong, could no longer be prosecuted in Hong Kong by reason of lapse of time;*”.
Section 17(3)(b) of the Ordinance is modified to read as follows—
the person, being free to leave Hong Kong, has not left Hong Kong within a period of 15 days after being notified that the person’s presence is no longer required for any of the following purposes* has had an opportunity of leaving Hong Kong and has remained in Hong Kong otherwise than for**—
the purpose to which the request relates; or**
the purpose of giving assistance in relation to a criminal matter in Hong Kong certified in writing by the Secretary for Justice to be a criminal matter in relation to which it is desirable that the person give assistance.”.
The text underlined is added. (The underlining is for ease of identifying the modification).
The text crossed out is deleted. (The crossing out is for ease of identifying the modification).
Sections 1, 2, 3 and 4 of Schedule 2 specify modifications to section 5(1) of the Ordinance so that a request by a place outside Hong Kong for assistance under the Ordinance must also be refused if, in the opinion of the Secretary for Justice—
there are substantial grounds for believing that the request was made for the purpose of prosecuting, punishing or otherwise causing prejudice to a person on account of the person’s sex;
there are substantial grounds for believing that the request will result in a person being subjected to torture or other cruel or inhuman or degrading treatment or punishment;
the request relates to the prosecution of a person for an external offence in a case where the person has been convicted, acquitted or pardoned by a competent court or other authority in Hong Kong, or has undergone the punishment provided by the law of Hong Kong, in respect of that offence or of another external offence constituted by the same act or omission as that offence;
the request relates to the prosecution of a person in respect of an act or omission that, if it had occurred in Hong Kong, could no longer be prosecuted in Hong Kong by reason of lapse of time.
Section 5 of Schedule 2 specifies modifications to section 17(3)(b) of the Ordinance to more precisely delineate the circumstances under which a person who is in Hong Kong to give assistance in relation to a criminal matter, pursuant to a request made by the Secretary for Justice, ceases to have immunities under section 17(1) of the Ordinance.