Schedule
(Regulations 2, 3 and 4)
AGREEMENT ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
BETWEEN
THE GOVERNMENT OF SAINT LUCIA
AND
THE GOVERNMENT OF THE FRENCH REPUBLIC
Desiring to promote legal cooperation in criminal matters,
Wishing for that purpose to settle by mutual consent their relations in the area of mutual legal assistance in criminal matters, in compliance with their respective constitutional principles,
Hereby agree as follows:
ARTICLE 1
PURPOSE AND SCOPE
1. Both Parties undertake to afford each other, in accordance with the provisions of this Agreement, the widest measure of mutual legal assistance in all proceedings in respect of offences the punishment of which, at the time of request for assistance, falls within the jurisdiction of the judicial authorities of the Requesting Party.
2. Mutual legal assistance in criminal matters shall include —
(a) the conduct of investigations and other actions of a procedural nature provided for in the law of the Requested Party;
(b) the location and identification of persons;
(c) the service of documents;
(d) the gathering, administering and handing over of evidence and judicial documents such as testimony, statements, estimates, expert assessments and searches of persons, assets and places;
(e) the appearance in court, in the territory of the Requesting Party, of persons detained in the territory of the Requested Party, in order to assist with the execution of the procedures described in this Agreement;
(f) the handing over of originals or certified authentic copies of documents;
(g) the notification of persons and experts for the purposes of voluntary appearance in order to make statements or provide help with searches;
(h) the location and restraint of assets;
(i) all other requests relating to criminal proceedings consistent with the objects of this Agreement and with the national legal system of the Requested Party.
3. This Agreement does not apply to —
(a) the enforcement of decisions of arrest and convictions, except with regard to confiscations;
(b) offences under military criminal law which are not offences under ordinary criminal law.
ARTICLE 2
CENTRAL AUTHORITIES
1. Mutual assistance requests submitted pursuant to this Agreement, the corresponding answers and the laying of information in connection with proceedings provided for at Article 17 shall be sent directly from the Central Authority to Central Authority or through diplomatic channels.
2. The Central Authority shall be —
- for the French Republic, the Ministry of Justice;
- for Saint Lucia, the Office of the Attorney General.
3. The Central Authority of the Requested Party shall promptly execute requests or, as appropriate, transmit them to its competent authorities for execution.
4. In the event of an urgency, an advance copy of a request may be transmitted by any means. Thereafter, the Central Authority of the Requesting Party shall transmit an original copy of the request to the Central Authority of the Requested Party as soon as possible. Documents relating to execution of such requests shall be returned through the Central Authorities.
ARTICLE 3
COMPETENT AUTHORITIES
1. The competent authorities are —
- for the French Republic, the judicial authorities;
- for the State of Saint Lucia, the Office of the Attorney General.
2. Any change affecting the designation of such authorities shall be brought to the attention of the other Party by diplomatic note.
ARTICLE 4
REFUSAL OR DEFERRAL OF ASSISTANCE
1. Mutual legal assistance may be refused, in whole or in part —
(a) if the request relates to an offence which the Requested Party considers a political offence or an offence connected with a political offence;
(b) if the Requested Party considers that execution of the request is likely to prejudice the sovereignty, security, public order or other essential interests of its country;
(c) if the request relates to a confiscation order and the facts on which the request is based do not constitute an offence that allows for confiscation under the law of the Requested Party;
(d) if the request relates to a measure provided for at Articles 14 and 15 and the facts on which the request is based do not constitute a criminal offence under the law of the Requested Party;
(e) if the request relates to an offence under military criminal law which is not also an offence under ordinary criminal law.
2. Mutual legal assistance may not be denied on the sole grounds that the request relates to an offence that the Requested Party considers a tax offence.
3. The Requested Party may not state banking secrecy as grounds for refusing a request for mutual legal assistance.
4. The Requested Party may defer mutual assistance if executing the request is liable to hinder a pending investigation or prosecution in the territory of the Requested Party.
5. Before refusing or deferring assistance, the Requested Party shall —
(a) promptly inform the Requesting Party of the grounds for considering a refusal or deferral; and
(b) consult the Requesting Party to decide whether assistance may be granted on the terms and conditions it deems necessary. If the Requesting Party accepts assistance subject to these terms and conditions, it shall comply with them.
6. If the Requested Party does not accede to all or some of the assistance request or defers execution, it shall promptly inform the Requesting Party of the fact in writing, giving the reasons.
ARTICLE 5
FORM AND CONTENTS OF REQUESTS
1. Requests for mutual assistance shall be made in writing, accompanied by a certified translation into the official language of the Requested State. All attachments shall be translated into the language of the Requested State.
2. The request shall contain the following —
(a) the identity of the competent authority issuing the request;
(b) the purpose of and reason for the request, including a summary of the facts, stating inter alia the date, place and circumstances in which the offence was committed and, where relevant, the extent of the damage caused;
(c) the text of the relevant legal provisions defining and punishing the offence;
(d) as far as possible, the identity and nationality of the person or persons involved in the offence;
(e) the name and address of the recipient, if any;
(f) a description of the assistance measures sought;
(g) the requirement for legalization, authentication or verification, if any.
3. Where relevant, assistance requests shall also contain —
(a) any confidentiality requirements pursuant to Article 19;
(b) a detailed description of any particular rules of procedure that the Requesting Party wishes to be followed;
(c) the time within which the request must be executed, especially in urgent cases;
(d) any other document necessary for execution of the demand and any other information likely to facilitate execution, such as a list of questions to be asked, as precise a description as possible of the property to be sought, seized or confiscated and the place where they are located, if known;
(e) where relevant, the name and functions of the authorities that the Requesting Party wishes to be present when acts are performed in the Requested Party with its authorisation.
4. Requests for assistance shall be transmitted either directly between Central Authorities or through diplomatic channels. In the event of urgency, requests may be sent by any means that enable the recipient to produce a written record and verify their authenticity. In such case, the original document must be sent in confirmation as soon as possible.
ARTICLE 6
EXECUTION OF REQUESTS
1. Requests for assistance shall be executed in compliance with the law of the Requested Party.
2. At the request of the Requesting Party, the Requested Party shall comply with the formalities and procedures expressly indicated by the Requesting Party unless otherwise provided for in this Agreement, and provided that such formalities and procedures are not contrary to the fundamental principles of the law of the Requested Party.
3. If the Requesting Party wishes the persons whom it has asked to be heard to testify under oath, it shall make an express request to that effect which the Requested Party shall fulfil if that is not inconsistent with its law.
4. The Requested Party shall execute the request promptly, taking into consideration as far as possible any procedural or other deadlines indicated by the Requesting Party. The Requesting Party shall explain the reasons for such deadlines. Where relevant, the Requested Party shall rapidly bring any circumstance liable to significantly delay execution of the request to the attention of the Requesting Party.
5. Where the request cannot be executed, or cannot be executed in full, the authorities of the Requested Party shall promptly inform the authorities of the Requesting Party of the fact and indicate the conditions in which the request could be executed. The authorities of both Parties may subsequently agree on how to proceed with the request, where relevant making it conditional on compliance with such conditions.
6. If it is foreseeable that the deadline set by the Requesting Party for executing its request cannot be met and if the reasons referred to in the second sentence of paragraph 4 above show in practical terms that any delay will considerably hinder the proceedings engaged in the Requesting Party, the authorities of the Requested Party shall promptly indicate the time deemed necessary to execute the request. The authorities of the Requesting Party shall promptly indicate if the request is maintained nevertheless. The authorities of the Requesting Party and of the Requested Party may subsequently agree on how to proceed with the request.
7. At the express request of the Requesting Party, the Requested Party shall inform it of the date and place where the request is executed. If the competent authorities of the Requested Party agree, the authorities of the Requesting Party or the persons mentioned in the request may attend such execution. Insofar as the law of the Requested Party allows, the authorities of the Requesting Party or the persons mentioned in the request may question a witness or expert or have them questioned.
8. The Requested Party may postpone the handing over of any property, records or documents requested if it needs them for pending criminal proceedings.
9. The Requested Party may transmit certified copies of the records or documents requested. However, if the Requesting Party expressly requests communication of the originals, this request shall be complied with wherever possible.
10. Exhibits and the originals of records and documents sent in execution of a request for assistance shall be kept by the Requesting Party unless the Requested Party asks for them to be returned.
11. If, while executing a request for assistance, the Requested Party obtains additional information not specified in the request, it shall promptly inform the Requesting Party of the fact so that the Requesting Party may request new measures.
ARTICLE 7
SUPPLEMENTARY REQUESTS
If the competent authority of the Requesting Party submits a mutual assistance request that supplements a previous request, it is not required to repeat information already provided in the initial request. The supplementary request should contain the necessary information to identify the initial request.
ARTICLE 8
APPEARANCE OF A WITNESS OR EXPERT IN THE REQUESTING PARTY
1. If the Requesting Party considers the personal appearance of a witness or expert before its judicial authorities particularly necessary, it shall mention so in its request for service of the summons and the Requested Party shall invite the witness or expert to appear.
The Requested Party shall inform the Requesting Party of the reply of the witness or expert.
2. In the case provided for under paragraph 1 of this Article, the request or the summons shall indicate the approximate compensation payable and the refundable travelling and subsistence expenses.
3. If a specific request is made, the Requested Party may grant the witness or expert an advance. The amount of the Advance shall be mentioned in the summons and shall be refunded by the Requesting Party.
4. The compensation payable and the travelling and subsistence expenses refundable to the witness or expert by the Requesting Party shall be calculated from their place of residence and cannot be lower than the usual rates paid in the country where the hearing is to take place.
ARTICLE 9
IMMUNITY
1. No witness or expert, whatever their nationality, who complies with a summons from the Requesting Party may be prosecuted or detained or subjected to any other restriction of their personal liberty in the territory of that Party in respect of actions or convictions prior to their departure from the territory of the Requested Party.
2. No person, whatever their nationality, summoned to appear in the Requesting Party may be prosecuted or detained or subjected to any other restriction of their personal liberty in the territory of the Requesting Party in respect of actions or convictions prior to their departure from the territory of the Requested Party and not specified in the summons.
3. The immunity provided for under paragraphs 1 and 2 shall cease when the witness, expert or accused person, having had the opportunity to leave the territory of the Requesting Party within a period of fifteen days from the date on which it was stated that their presence was no longer necessary, has nevertheless remained in the territory or, having left it, has returned.
4. A witness or expert who has not complied with a summons to appear, service of which has been requested, shall not, even if the summons contains a notice of penalty, be subjected to any punishment or measure of restraint, unless subsequently they voluntarily enter the territory of the Requesting Party and are again duly summoned.
5. The Parties may, pursuant to their laws, agree on the necessary means to ensure the security of victims, accused persons, witnesses and experts and their family. Likewise, they may agree, in accordance with their national law, on measures to protect their privacy, should that prove necessary.
ARTICLE 10
HEARING BY VIDEOCONFERENCE
1. If a person who is in the territory of a Party has to be heard as a victim, witness or expert by the competent authorities of the other Party, those authorities may where it is not opportune or possible for the person to be heard to appear in its territory in person, request that the hearing take place by videoconference in accordance with the provisions of this Article.
2. The Requested Party may agree to the hearing by videoconference provided that the use of the videoconference is not contrary to its law and on condition that is has the means to carry out the hearing.
3. Requests for a hearing by videoconference shall contain, in addition to the information referred to in Article 5, paragraphs 1 and 2, the reason why it is not desirable or possible for the victim, witness or expert to attend in person and shall mention the name of the competent authority and of the persons who will be conducting the hearing.
4. The competent authorities of the Requested Party shall issue a summons to the person concerned to appear in accordance with its law.
5. The following rules shall apply to hearings by videoconference —
(a) a competent authority of the Requested Party shall be present during the hearing, where necessary assisted by an interpreter, and shall also be responsible for ensuring both the identification of the person to be heard and respect for the law of the Requested Party. If the same authority is of the view that its law is not complied with during the hearing, it shall immediately take the necessary measures to ensure that the hearing continues in accordance with the said law;
(b) measures of the protection of the person to be heard shall be agreed, where necessary, between the competent authorities of the two Parties;
(c) the hearing shall be conducted directly by, or under the direction of, the competent authority of the Requesting Party in accordance with its own laws;
(d) at the request of the Requesting Party or the person to be heard, the Requested Party shall ensure that the person to be heard is assisted by an interpreter, if necessary;
(e) the person to be heard may claim the right not to testify which would be granted to him under the law of either the Requested or the Requesting Party.
6. Without prejudice to any measures agreed for the protection of the persons, the competent authority of the Requested Party shall, on conclusion of the hearing, draw up minutes indicating the date and place of the hearing, the identity of the person heard, the identities and functions of all other persons in the Requested Party participating in the hearing, any oaths taken and the technical conditions under which the hearing took place. The document shall be forwarded by the competent authority of the Requested Party to the competent authority of the Requesting Party.
7. Costs related to establishing the video link and making it available in the Requested Party, the remuneration of interpreters provided by it and compensation paid to witnesses and experts and their travelling expenses in the Requested Party shall be paid by the Requesting Party to the Requested Party, unless the latter waives the payment of all or some of these expenses.
8. Each Party may take the necessary measures to ensure that, where witnesses or experts are being heard within its territory in accordance with this Article and refuse to testify when under an obligation to testify or do not testify according to the truth, its national law applies in the same way as if the hearing took place in a national procedure.
9. The two Parties may, if their national law so permits, also apply the provisions of this article to hearings by videoconference involving a person accused in criminal proceedings. Hearings shall only be carried out with the consent of the criminally accused person. The decision to hold the videoconference, and the manner in which the videoconference is carried out, shall be subject to agreement between the competent authorities of the Parties in accordance with their national law.
ARTICLE 11
TEMPORARY TRANSFER OF PERSONS IN CUSTODY
1. A person in custody whose personal appearance as a witness or for the purposes of confrontation is requested by the Requesting Party shall be temporarily transferred to the territory where the hearing is to take place, provided that he gives his written consent and is returned within the time period stipulated by the Requested Party.
2. Transfer may be refused —
(a) if the presence of the person in custody is necessary at pending criminal proceedings in the territory of the Requested Party;
(b) if transfer may prolong his detention; or
(c) if there are other compelling reasons for not transferring him to the territory of the Requesting Party.
3. The transferred person shall remain in custody in the territory of the Requesting Party unless the Requested Party orders his release. Time spent in detention in the territory of the Requesting Party shall be deducted, according to the rules of law of the Requested Party, from the time of detention to be served in its territory.
4. A person transferred to the territory of the Requesting Party may not stay there longer than the time agreed between the Parties, except in the event of force majeure, or unless the transferred person and the Parties agree to extend his stay.
5. The provisions of Article 9 apply mutatis mutandis to the transferred person.
6. If the transferred person escapes in the territory of the Requesting Party, the Requested Party may ask for the opening of a criminal investigation in order to elucidate the facts.
7. If the Parties agree, the Requesting Party that has asked for investigative measures requiring the presence of a person in custody in its territory may temporarily transfer that person to the territory of the Requested Party.
ARTICLE 12
SERVICE OF DOCUMENTS
1. The Requested Party shall serve writs and records of judicial verdicts transmitted to it for this purpose by the Requesting Party. Such service may be effected by simply transmitting the writ or verdict to the person being served. At the express request of the Requesting Party, the Requested Party shall effect service in one of the forms provided for similar service or in a special form consistent with its law.
2. Proof of service shall be given by means of a receipt dated and signed by the person being served or by means of a declaration made by the Requested Party that service has been carried out, stating the form and date of such service. Either of these documents shall immediately be sent to the Requesting Party. At the request of the Requesting Party, the Requested Party shall state if service has been effected in compliance with its law. If service cannot be effected, the Requested Party shall immediately communicate the reasons to the Requesting Party.
3. A summons shall be transmitted to the Requested Party at the latest forty (40) days before the scheduled date of appearance. In urgent cases, the Central Authority of the Requested Party may waive this condition at the request of the Central Authority of the Requesting Party.
ARTICLE 13
REQUESTS FOR BANKING INFORMATION
1. At the request of the Requesting Party, the Requested Party shall provide as soon as possible all information concerning accounts of any sort, held or controlled, with any bank located in its territory by a natural person or legal entity that is the subject of a criminal investigation in the Requesting Party.
2. At the request of the Requesting Party, the Requested Party shall provide the particulars of specified bank accounts and of banking operations performed during a specified period through one or more accounts specified in the request, including the particulars of any sending or recipient account.
3. At the request of the Requesting Party, the Requested Party shall monitor, during a specified period, banking operations performed through one or more accounts specified in the request and inform the Requesting Party of the results. The practical details regarding such monitoring shall be agreed between the competent authorities of the Requested and Requesting Parties.
4. The information referred to in paragraphs 1, 2 and 3 shall be provided to the Requesting Party, even if the accounts in question are held by bodies acting in the form of or on behalf of trust funds or any other instruments for administering special purpose funds of which the identity of the settlers or beneficiaries is unknown.
5. The Requested Party shall take the necessary steps to ensure that banks do not reveal to the customer concerned or to any other third party that information has been provided to the Requesting Party in accordance with the provisions of this Article.
6. Any request made pursuant to this Article shall be executed in compliance with the national law of the Requested Party.
ARTICLE 14
SEARCH, SEIZURE AND FREEZING OF ASSETS
1. The Requested Party shall, insofar as its law permits, execute requests for search, and freezing of assets and seizure of evidence.
2. The Requested Party shall inform the Requesting Party of the results of executing the said requests.
3. The Requesting Party shall observe any conditions imposed by the Requested Party relating to any seized property which is delivered to the Requesting Party.
ARTICLE 15
PROCEEDS AND INSTRUMENTS OF THE OFFENCE
1. In compliance with this Agreement, “proceeds and instruments of the offence” means assets of any kind derived or realised, directly or indirectly, from the commission of an offence and any property which is used or is intended to be used in connection with the commission of an offence.
2. The Requested Party shall, on request, endeavour to ascertain whether proceeds of an infringement of the laws of the Requesting Party are located within its jurisdiction and shall notify the Requesting Party of the results 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 within its jurisdiction.
3. Where suspected proceeds of crime are found pursuant to paragraph 1, the Requested Party shall take such measures as are permitted by its law to prevent any dealing in, transfer or disposal of such proceeds pending a final determination in respect thereof by a court of the Requesting Party.
4. The Requested Party shall execute in accordance with its laws a request for assistance in securing the confiscation of the proceeds of crime.
5. The Requested Party shall, insofar as its law permits and at the request of the Requesting Party, envisage as a priority returning the proceeds of crime to the Requesting Party, in particular with a view to compensating victims or restoring such proceeds to their rightful owner, without prejudice to the rights of bona fide third parties.
6. At the request of the Requesting Party, the Requested Party may execute a final confiscation order issued by the judicial authorities of the Requesting Party.
7. Unless the Parties decide otherwise, the Requested State may, as appropriate, deduct reasonable expenses incurred in investigations, prosecutions and judicial proceedings that resulted in the return or disposal of confiscated property pursuant to this Article.
8. The Parties may, on a case-by-case basis, conclude agreements or mutually acceptable arrangements for the final disposal of confiscated property or for sharing the proceeds of the sale of confiscated property.
ARTICLE 16
JUDICIAL RECORDS
1. The Requested Party shall provide, in so far as its competent authorities could themselves obtain them in similar cases and to the extent permitted by its law, extracts from judicial records and information relating to such records requested from it by the competent authorities of the Requesting Party and needed in a criminal proceeding. Requests shall be sent directly by the Central Authority of the Requesting Party to the Central Authority of the Requested Party and answers shall be returned directly through the same channel.
2. For the French Republic, requests may be directly sent to the competent service which is the Casier Judiciaire National (National Judicial Records Office).
3. In cases other than those provided for in paragraph 1, such as requests for copies of Judgments and court orders, the request from the Requesting Party shall be executed under the conditions provided for by the laws, regulations or practice of the Requested Party. Requests shall be sent by the Central Authority of the Requesting Party to the Central Authority of the Requested Party.
4. At least once a year, each Party shall communicate to the other Party notice of convictions of nationals of the other Party, to fight more effectively against the commission of new offences by the same individual.
ARTICLE 17
LAYING OF INFORMATION IN CONNECTION WITH PROCEEDINGS
1. One Party may provide the other Party with information about acts that may constitute criminal offences in order to allow the other Party to bring criminal proceedings in its territory in accordance with its law.
2. The Requested Party shall notify the Requesting Party of any action taken on such information and shall forward a copy of the record of any verdict pronounced.
3. The provisions of Article 5, paragraph 1 shall apply to information laid pursuant to paragraph 1.
ARTICLE 18
SPONTANEOUS EXCHANGE OF INFORMATION
1. Within the framework of their respective laws, the competent authorities of the two Parties may, without prior request, forward or exchange information concerning criminal offences, the punishment or treatment of which falls within the jurisdiction of the receiving authority at the time the information is provided.
2. The authority providing the information may, pursuant to its national law, impose conditions on the use of such information by the receiving authority. The receiving authority shall be bound by those conditions.
3. Spontaneous exchanges of information shall take place in accordance with the provisions of Article 5, paragraph 1.
ARTICLE 19
CONFIDENTIALITY AND SPECIALITY
1. The Requested Party shall do everything in its power to respect the confidential nature of the request and its contents. If the request cannot be executed without breaching its confidential nature, the Requested Party shall inform the Requesting Party, which shall decide whether to proceed with the execution nevertheless.
2. The Requested Party may require that the information or evidence communicated under the terms of this Agreement be kept confidential or be disclosed or used only subject to such terms and conditions as it may specify. When it intends to avail itself of those provisions, the Requested Party shall notify the Requesting Party beforehand. If the Requesting Party accepts the said terms and conditions, it must comply with them. Otherwise, the Requested Party may refuse its assistance.
3. The Requesting Party may not, without the Requested Party's prior consent, disclose or use information or evidence provided for any purpose other than those stipulated in the request.
ARTICLE 20
PROTECTION OF PERSONAL INFORMATION
1. Information of a personal nature provided under the terms of this Agreement may be used by the Party to which it has been provided —
(a) for the purposes of the procedures to which this Agreement applies;
(b) for the purposes of other judicial proceedings or administrative procedures directly linked to the procedures referred to in point a);
(c) to forestall an immediate and serious danger to public security;
(d) for any other purpose, solely with prior consent of the Party providing the information, unless the Party concerned has obtained the consent of the person concerned.
2. This Article also applies to information of a personal nature that has not been provided but obtained in another way pursuant to this Agreement.
3. Depending on the individual circumstances, the Party providing information of a personal nature may ask the Party to which the information has been provided to notify it of the use to which it has been put.
4. Where restrictions on the use of information of a personal nature have been imposed, they shall prevail over the provisions of this Article. If there are no such conditions, the provisions of this Article shall apply.
5. This Article shall not apply to information of a personal nature obtained by a Party pursuant to this Agreement and deriving from that Party.
ARTICLE 21
WAIVER OF LEGALIZATION FORMALITIES
Documents provided under the terms of this Agreement shall be exempt from all legalisation formalities except as otherwise required by the Requesting Party.
ARTICLE 22
COSTS
1. Subject to the provisions of Article 8, paragraph 4 and Article 10, paragraph 7, execution of requests for mutual assistance shall not entail refunding of expenses except those incurred by the attendance of experts in the territory of the Requested Party or the transfer of persons in custody carried out under Article 11.
2. If, during execution of the request, it transpires that extraordinary expenses are required to satisfy the request, the Parties shall consult each other to decide the terms and conditions on which execution can continue.
ARTICLE 23
DISPUTE SETTLEMENT
Any disputes that may arise concerning the application or interpretation of this Agreement shall be settled by direct negotiation between the Parties, in writing and through diplomatic channels.
ARTICLE 24
AMENDMENTS
This Agreement may be amended by mutual consent between the Parties. Amendments shall take effect in accordance with the provisions of Article 25 concerning entry into effect of the Agreement.
ARTICLE 25
ENTRY INTO EFFECT AND TERMINATION
1. Each party shall notify the other of the completion of the procedures required for the entry into force of this Agreement.
2. This Agreement shall enter into effect on the first day of the second month following the date of receipt of the last notification.
3. Either Party may terminate this Agreement at any time by sending the other Party written notice of termination through diplomatic channels. Termination shall take effect six months after the date on which such notice is received.
IN WITNESS WHEREOF the undersigned, duly authorised by their respective governments, have signed this Agreement.
DONE at Castries, on the 30th day of September, 2016, in duplicate, in the English and French languages, both texts being equally authentic.