The ------------ and the ------------
Desirous of further
strengthening international cooperation and mutual assistance in criminal
justice, on the basis of the principles of respect for national sovereignty and
jurisdiction and of non-interference in the internal affairs of States,
Believing that such cooperation
should further the ends of justice, the social resettlement of offenders and
the interests of the victims of crime,
Bearing in mind that the transfer of
proceedings in criminal matters contributes to effective administration of
justice and to reducing conflicts of competence,
Aware that the transfer of proceedings in
criminal matters can help to avoid pre-trial detention and thus reduce the
prison population,
Convinced, therefore, that the
transfer of proceedings in criminal matters should be promoted,
Have agreed as follows:
Article 1
Scope of application
1. When a person is suspected of having
committed an offence under the law of a State which is a Contracting Party,
that State may, if the interests of the proper administration of justice so
require, request another State which is a Contracting Party to take proceedings
in respect of this offence.
2. For the purpose of applying the present
Treaty, the Contracting Parties shall take the necessary legislative measures
to ensure that a request of the requesting State to take proceedings shall
allow the requested State to exercise the necessary jurisdiction.
Article 2
Channels of communications
A request to take proceedings shall be made in
writing. The request, supporting documents and subsequent communications shall
be transmitted through diplomatic channels, directly between the Ministries of
Justice or any other authorities designated by the Parties.
Article 3
Required documents
1. The request to take proceedings shall
contain or be accompanied by the following information:
(a) The authority presenting the request;
(b) A description of the act for which
transfer of proceedings is being requested, including the specific time and
place of the offence;
(c) A statement on the results of
investigations which substantiate the suspicion of an offence;
(d) The legal provisions of the Requesting
State on the basis of which the act is considered to be an offence;
(e) A reasonably exact statement on the
identity, nationality and residence of the suspected person.
2. The documents submitted in support of a
request to take proceedings shall be accompanied by a translation into the
language of the Requested State or into another language acceptable to that
State.
Article 4
Certification and authentication
Subject to national law and unless the Parties
decide otherwise, a request to take proceedings and the documents in support
thereof, as well as the documents and other material supplied in response to
such a request, shall not require certification or authentication.*
Article 5
Decision on the request
The competent authorities of the requested
State shall examine what action to take on the request to take proceedings in
order to comply, as fully as possible, with the request under their own law,
and shall promptly communicate their decision to the requesting State.
Article 6
Dual criminality
A request to take proceedings can be complied
with only if the act on which the request is based would be an offence if
committed in the territory of the requested State.
Article 7
Grounds for refusal
If the requested State refuses acceptance of a
request for transfer of proceedings, it shall communicate the reasons for
refusal to the requesting State. Acceptance may be refused if:**
(a) The suspected person is not a national of
or ordinarily resident in the requested State;
(b) The act is an offence under military law,
which is not also an offence under ordinary criminal law;
(c) The offence is in connection with taxes,
duties, customs or exchange;
(d) The offence is regarded by the requested
State as being of a political nature.
Article 8
The position of the suspected person
1. The suspected person may express to either
State his or her interest in the transfer of the proceedings. Similarly, such
interest may be expressed by the legal representative or close relatives of the
suspected person.
2. Before a request for transfer of
proceedings is made, the requesting State shall, if practicable, allow the
suspected person to present his or her views on the alleged offence and the
intended transfer, unless that person has absconded or otherwise obstructed the
course of justice.
Article 9
The rights of the victim
The requesting and requested States shall
ensure in the transfer of proceedings that the rights of the victim of the
offence, in particular his or her right to restitution or compensation, shall
not be affected as a result of the transfer. If a settlement of the claim of
the victim has not been reached before the transfer, the requested State shall
permit the representation of the claim in the transferred proceedings, if its
law provides for such a possibility. In the event of the death of the victim,
these provisions shall apply to his or her dependants accordingly.
Article 10
Effects of the transfer of proceedings
on the requesting State (ne bis in idem)
Upon acceptance by the requested State of the
request to take proceedings against the suspected person, the requesting State
shall provisionally discontinue prosecution, except necessary investigation,
including judicial assistance to the requested State, until the requested State
informs the requesting State that the case has been finally disposed of. From
that date on, the requesting State shall definitely refrain from further
prosecution of the same offence.
Article 11
Effects of the transfer of proceedings
on the requested State
1. The proceedings transferred upon agreement
shall be governed by the law of the requested State. When charging the
suspected person under its law, the requested State shall make the necessary
adjustment with respect to particular elements in the legal description of the
offence. Where the competence of the requested State is based on the provision
set forth in paragraph 2 of article 1, the sanction pronounced in that State
shall not be more severe than that provided by the law of the requesting State.
2. As far as compatible with the law of the
requested State, any act with a view to proceedings or procedural requirements
performed in the requesting State in accordance with its law shall have the
same validity in the requested State as if the act had been performed in or by
the authorities of that State.
3. The requested State shall inform the
requesting State of the decision taken as a result of the proceedings. To this
end a copy of any final decision shall be transmitted to the requesting State
upon request.
Article 12
Provisional measures
When the requesting State announces its
intention to transmit a request for transfer of proceedings, the requested
State may, upon a specific request made for this purpose by the requesting
State, apply all such provisional measures, including provisional detention and
seizure, as could be applied under its own law if the offence in respect of
which transfer of proceedings is requested had been committed in its territory.
Article 13
The plurality of criminal proceedings
When criminal proceedings are pending in two
or more States against the same suspected person in respect of the same
offence, the States concerned shall conduct consultations to decide which of
them alone should continue the proceedings. An agreement reached thereupon
shall have the consequences of a request for transfer of proceedings.
Article 14
Costs
Any costs incurred by a Contracting Party
because of a transfer of proceedings shall not be refunded, unless otherwise
agreed by both the requesting and requested States.
Article 15
Final provisions
1. The present Treaty is subject to
[ratification, acceptance or approval]. The instruments of [ratification,
acceptance or approval] shall be exchanged as soon as possible.
2. The present Treaty shall enter into force
on the thirtieth day after the day on which the instruments of [ratification,
acceptance or approval] are exchanged.
3. The present Treaty shall apply to requests
made after its entry into force, even if the relevant acts or omissions
occurred prior to that date.
4. Either Contracting
Party may denounce the present Treaty by giving notice in writing to the other
Party. Such denunciation shall take effect six months following the date on
which it is received by the other Party.
IN WITNESS WHEREOF the undersigned, being duly
authorized thereto by their respective Governments, have signed the present
Treaty.
DONE at ------- on ------- in the -------- and
---------- languages [both/all] texts being equally authentic.
_______
* The laws of some countries require
authentication before documents transmitted from other countries can be
admitted in their courts and, therefore, would require a clause setting out the
authentication required.
** When negotiating on the basis of the
present Model Treaty, States may wish to add other grounds for refusal or
conditions to this list, relating, for example, to the nature or gravity of the
offence, to the protection of fundamental human rights, or to considerations of
public order.
© Copyright 1997 - 2000
Office
of the United Nations High Commissioner for Human Rights
Geneva,
Switzerland