United Nations

A/RES/45/117


General Assembly

Distr. GENERAL  

14 December 1990

ORIGINAL:
ENGLISH



                                                    A/RES/45/117
                                                    68th plenary meeting
                                                    14 December 1990
 
     45/117.  Model Treaty on Mutual Assistance in Criminal Matters
 
     The General Assembly,
 
     Bearing in mind the Milan Plan of Action, adopted by the Seventh
United Nations Congress on the Prevention of Crime and the Treatment of
Offenders and approved by the General Assembly in its resolution 40/32 of
29 November 1985,
 
     Bearing in mind also the Guiding Principles for Crime Prevention and
Criminal Justice in the Context of Development and a New International
Economic Order, principle 37 of which stipulates that the United Nations
should prepare model instruments suitable for use as international and
regional conventions and as guides for national implementing legislation,
 
     Recalling resolution 1 of the Seventh Congress, on organized crime, in
which Member States were urged, inter alia, to increase their activity at the
international level in order to combat organized crime, including, as
appropriate, entering into bilateral treaties on extradition and mutual legal
assistance,
 
     Recalling also resolution 23 of the Seventh Congress, on criminal acts
of a terrorist character, in which all States were called upon to take steps
to strengthen co-operation particularly, inter alia, in the area of mutual
legal assistance,
 
     Recalling further the United Nations Convention against Illicit Traffic
in Narcotic Drugs and Psychotropic Substances,
 
     Acknowledging the valuable contributions to the development of a model
treaty on mutual assistance in criminal matters that Governments,
non-governmental organizations and individual experts have made, in particular
the Government of Australia and the International Association of Penal Law,
 
     Gravely concerned about the escalation of crime, both national and
transnational,
 
     Convinced that the establishment of bilateral and multilateral
arrangements for mutual assistance in criminal matters will greatly contribute
to the development of more effective international co-operation for the
control of criminality,
 
     Conscious of the need to respect human dignity and recalling the rights
conferred upon every person involved in criminal proceedings, as embodied in
the Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights,
 
     Recognizing the importance of a model treaty on mutual assistance in
criminal matters as an effective way of dealing with the complex aspects and
serious consequences of crime, especially in its new forms and dimensions,
 
     1.   Adopts the Model Treaty on Mutual Assistance in Criminal Matters
together with the Optional Protocol thereto, contained in the annex to the
present resolution, as a useful framework that could be of assistance to
States interested in negotiating and concluding bilateral agreements aimed at
improving co-operation in matters of crime prevention and criminal justice;
 
     2.   Invites Member States, if they have not yet established treaty
relations with other States in the matter of mutual assistance in criminal
matters, or if they wish to revise existing treaty relations, to take into
account, whenever doing so, the Model Treaty;
 
     3.   Urges all States to strengthen further international co-operation
and mutual assistance in criminal justice;
 
     4.   Requests the Secretary-General to bring the present resolution, with
the Model Treaty and the Optional Protocol thereto, to the attention of
Governments;
 
     5.   Urges Member States to inform the Secretary-General periodically of
efforts undertaken to establish mutual assistance arrangements in criminal
matters; 
 
     6.   Requests the Committee on Crime Prevention and Control to review
periodically the progress attained in this field;
 
     7.   Also requests the Committee on Crime Prevention and Control, where
requested, to provide guidance and assistance to Member States in the
development of legislation which would enable giving effect to the obligations
which will be contained in such treaties as are to be negotiated on the basis
of the Model Treaty;
 
     8.   Invites Member States, on request, to make available to the
Secretary-General the provisions of their legislation on mutual assistance in
criminal matters so that these may be made available to those Member States
desiring to enact or further develop legislation in this field.
 
 
                                    ANNEX
            Model Treaty on Mutual Assistance in Criminal Matters
 
     The                          and the
 
     Desirous of extending to each other the widest measure of co-operation to
combat crime,
 
     Have agreed as follows:
 
                                  ARTICLE 1
                           Scope of application
 
1.   The Parties shall, in accordance with the present Treaty, afford to each
other the widest possible measure of mutual assistance in investigations or
court proceedings in respect of offences the punishment of which at the time
of the request for assistance, falls within the jurisdiction of the judicial
authorities of the requesting State.
 
2.   Mutual assistance to be afforded in accordance with the present Treaty
may include:
 
     (a)  Taking evidence or statements from persons;
 
     (b)  Assisting in the availability of detained persons or others to give
evidence or assist in investigations;
 
     (c)  Effecting service of judicial documents;
 
     (d)  Executing searches and seizures;
 
     (e)  Examining objects and sites;
 
     (f)  Providing information and evidentiary items;
 
     (g)  Providing originals or certified copies of relevant documents and
records, including bank, financial, corporate or business records.
 
3.   The present Treaty does not apply to:
 
     (a)  The arrest or detention of any person with a view to the extradition
of that person;
 
     (b)  The enforcement in the requested State of criminal judgements
imposed in the requesting State except to the extent permitted by the law of
the requested State and the Optional Protocol to the present Treaty;
 
     (c)  The transfer of persons in custody to serve sentences;
 
     (d)  The transfer of proceedings in criminal matters.
 
 
                                   ARTICLE 2
                                Other arrangements
 
     Unless the Parties decide otherwise, the present Treaty shall not affect
obligations subsisting between them whether pursuant to other treaties or
arrangements or otherwise.
                                     ARTICLE 3
                       Designation of competent authorities
 
     Each Party shall designate and indicate to the other Party an authority
or authorities by or through which requests for the purpose of the present
Treaty should be made or received.
 
                                   ARTICLE 4
                               Refusal of assistance
 
1.   Assistance may be refused if:
 
     (a)  The requested State is of the opinion that the request, if granted,
would prejudice its sovereignty, security, public order (ordre public) or
other essential public interests;
 
     (b)  The offence is regarded by the requested State as being of a
political nature;
 
     (c)  There are substantial grounds for believing that the request for
assistance has been made for the purpose of prosecuting a person on account of
that person's race, sex, religion, nationality, ethnic origin or political
opinions or that that person's position may be prejudiced for any of those
reasons; 
 
     (d)  The request relates to an offence that is subject to investigation
or prosecution in the requested State or the prosecution of which in the
requesting State would be incompatible with the requested State's law on
double jeopardy (ne bis in idem);
 
     (e)  The assistance requested requires the requested State to carry out
compulsory measures that would be inconsistent with its law and practice had
the offence been the subject of investigation or prosecution under its own
jurisdiction;
 
     (f)  The act is an offence under military law, which is not also an
offence under ordinary criminal law.
 
2.   Assistance shall not be refused solely on the ground of secrecy of banks
and similar financial institutions.
 
3.   The requested State may postpone the execution of the request if its
immediate execution would interfere with an ongoing investigation or
prosecution in the requested State.
 
4.   Before refusing a request or postponing its execution, the requested
State shall consider whether assistance may be granted subject to certain
conditions.  If the requesting State accepts assistance subject to these
conditions, it shall comply with them.
 
5.   Reasons shall be given for any refusal or postponement of mutual
assistance.
 
 
                                     ARTICLE 5
 
                               Contents of requests
 
1.   Requests for assistance shall include:
 
     (a)  The name of the requesting office and the competent authority
conducting the investigation or court proceedings to which the request
relates; 
 
     (b)  The purpose of the request and a brief description of the assistance
sought;
 
     (c)  A description of the facts alleged to constitute the offence and a
statement or text of the relevant laws, except in cases of a request for
service of documents;
 
     (d)  The name and address of the person to be served, where necessary;
 
     (e)  The reasons for and details of any particular procedure or
requirement that the requesting State wishes to be followed, including a
statement as to whether sworn or affirmed evidence or statements are required;
 
     (f)  Specification of any time-limit within which compliance with the
request is desired;
 
     (g)  Such other information as is necessary for the proper execution of
the request.
 
2.   Requests, supporting documents and other communications made pursuant to
the present Treaty shall be accompanied by a translation into the language of
the requested State or another language acceptable to that State.
 
3.   If the requested State considers that the information contained in the
request is not sufficient to enable the request to be dealt with, it may
request additional information.
                                     ARTICLE 6
                             Execution of requests
 
     Subject to article 19 of the present Treaty, requests for assistance
shall be carried out promptly, in the manner provided for by the law and
practice of the requested State.  To the extent consistent with its law and
practice, the requested State shall carry out the request in the manner
specified by the requesting State.
 
                                     ARTICLE 7
                     Return of material to the requested State
 
     Any property, as well as original records or documents, handed over to
the requesting State under the present Treaty shall be returned to the
requested State as soon as possible unless the latter waives its right of
return thereof.
 
                                   ARTICLE 8
                                 Limitation on use
 
     The requesting State shall not, without the consent of the requested
State, use or transfer information or evidence provided by the requested State
for investigations or proceedings other than those stated in the request.
However, in cases where the charge is altered, the material provided may be
used in so far as the offence, as charged, is an offence in respect of which
mutual assistance could be provided under the present Treaty.
 
                                     ARTICLE 9
                         Protection of confidentiality
     Upon request:
 
     (a)  The requested State shall use its best endeavours to keep
confidential the request for assistance, its contents and its supporting
documents as well as the fact of granting of such assistance.  If the request
cannot be executed without breaching confidentiality, the requested State
shall so inform the requesting State, which shall then determine whether the
request should nevertheless be executed;
 
     (b)  The requesting State shall keep confidential evidence and
information provided by the requested State, except to the extent that the
evidence and information is needed for the investigation and proceedings
described in the request.
                                    ARTICLE 10
                             Service of documents
 
1.   The requested State shall effect service of documents that are
transmitted to it for this purpose by the requesting State.
 
2.   A request to effect service of summonses shall be made to a requested
State not less than  ...      days before the date on which the appearance of
a person is required.  In urgent cases, the requested State may waive the time
requirement.
 
                                  ARTICLE 11
                               Obtaining of evidence
 
1.   The requested State shall, in conformity with its law and upon request,
take the sworn or affirmed testimony, or otherwise obtain statements of
persons or require them to produce items of evidence for transmission to the
requesting State.
 
2.   Upon the request of the requesting State, the parties to the relevant
proceedings in the requesting State, their legal representatives and
representatives of the requesting State may, subject to the laws and
procedures of the requested State, be present at the proceedings.
 
                                    ARTICLE 12
                  Right or obligation to decline to give evidence
 
1.   A person who is required to give evidence in the requested or requesting
State may decline to give evidence where either:
 
     (a)  The law of the requested State permits or requires that person to
decline to give evidence in similar circumstances in proceedings originating
in the requested State; or
 
     (b)  The law of the requesting State permits or requires that person to
decline to give evidence in similar circumstances in proceedings originating
in the requesting State.
 
2.   If a person claims that there is a right or obligation to decline to give
evidence under the law of the other State, the State where that person is
present shall, with respect thereto, rely on a certificate of the competent
authority of the other State as evidence of the existence or non-existence of
that right or obligation.
                                    ARTICLE 13
                Availability of persons in custody to give evidence
                        or to assist in investigations
 
1.   Upon the request of the requesting State, and if the requested State
agrees and its law so permits, a person in custody in the latter State may,
subject to his or her consent, be temporarily transferred to the requesting
State to give evidence or to assist in the investigations.
 
2.   While the person transferred is required to be held in custody under the
law of the requested State, the requesting State shall hold that person in
custody and shall return that person in custody to the requested State at the
conclusion of the matter in relation to which transfer was sought or at such
earlier time as the person's presence is no longer required.
 
3.   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 referred to in article 14
of the present Treaty.
 
                                    ARTICLE 14
                  Availability of other persons to give evidence
                          or assist in investigations
 
1.   The requesting State may request the assistance of the requested State in
inviting a person:
 
     (a)  To appear in proceedings in relation to a criminal matter in the
requesting State unless that person is the person charged; or
 
     (b)  To assist in the investigations in relation to a criminal matter in
the requesting State.
 
2.   The requested State shall invite the person to appear as a witness or
expert in proceedings or to assist in the investigations.  Where appropriate,
the requested State shall satisfy itself that satisfactory arrangements have
been made for the person's safety.
 
3.   The request or the summons shall indicate the approximate allowances and
the travel and subsistence expenses payable by the requesting State.
 
4.   Upon request, the requested State may grant the person an advance, which
shall be refunded by the requesting State.
 
                                  ARTICLE 15
                                 Safe conduct
 
1.   Subject to paragraph 2 of the present article, where a person is in the
requesting State pursuant to a request made under article 13 or 14 of the
present Treaty:
 
     (a)  That person shall not be detained, prosecuted, punished or subjected
to any other restrictions of personal liberty in the requesting State in
respect of any acts or omissions or convictions that preceded the person's
departure from the requested State;
 
     (b)  That person shall not, without that person's consent, be required to
give evidence in any proceeding or to assist in any investigation other than
the proceeding or investigation to which the request relates.
 
2.   Paragraph 1 of the present article shall cease to apply if that person,
being free to leave, has not left the requesting State within a period of  15
consecutive days, or any longer period otherwise agreed on by the Parties,
after that person has been officially told or notified that his or her
presence is no longer required or, having left, has voluntarily returned.
 
3.   A person who does not consent to a request pursuant to article 13 or
accept an invitation pursuant to article 14 shall not, by reason thereof, be
liable to any penalty or be subjected to any coercive measure, notwithstanding
any contrary statement in the request or summons.
 
                                    ARTICLE 16
          Provision of publicly available documents and other records
 
1.   The requested State shall provide copies of documents and records in so
far as they are open to public access as part of a public register or
otherwise, or in so far as they are available for purchase or inspection by
the public.
 
2.   The requested State may provide copies of any other document or record
under the same conditions as such document or record may be provided to its
own law enforcement and judicial authorities.
 
                                    ARTICLE 17
                              Search and seizure
 
     The requested State shall, in so far as its law permits, carry out
requests for search and seizure and delivery of any material to the requesting
State for evidentiary purposes, provided that the rights of bona fide third
parties are protected.
                                    ARTICLE 18
                       Certification and authentication
 
     A request for assistance and the documents in support thereof, as well as
documents or other material supplied in response to such a request, shall not
require certification or authentication.
 
 
                                    ARTICLE 19
 
                                     Costs
     The ordinary costs of executing a request shall be borne by the requested
State, unless otherwise determined by the Parties.  If expenses of a
substantial or extraordinary nature are or will be required to execute the
request, the Parties shall consult in advance to determine the terms and
conditions under which the request shall be executed as well as the manner in
which the costs shall be borne.
 
                                    ARTICLE 20
                                   Consultation
 
     The Parties shall consult promptly, at the request of either, concerning
the interpretation, the application or the carrying out of the present Treaty
either generally or in relation to a particular case.
 
                                    ARTICLE 21
                                 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.
 
 
            Optional Protocol to the Model Treaty on Mutual Assistance
             in Criminal Matters concerning the proceeds of crime
 
1.   In the present Protocol "proceeds of crime" means any property suspected,
or found by a court, to be property directly or indirectly derived or realized
as a result of the commission of an offence or to represent the value of
property and other benefits derived from the commission of an offence.
 
2.   The requested State shall, upon request, endeavour to ascertain whether
any proceeds of the alleged 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 within its jurisdiction.
 
3.   In pursuance of a request made under paragraph 2 of the present Protocol,
the requested State shall endeavour to trace assets, investigate financial
dealings, and obtain other information or evidence that may help to secure the
recovery of proceeds of crime.
 
4.   Where, pursuant to paragraph 2 of the present Protocol, suspected
proceeds of crime are found, the requested State shall upon request 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 of the requesting State.
 
5.   The requested State shall, to the extent permitted by its law, give
effect to or permit enforcement of a final order forfeiting or confiscating
the proceeds of crime made by a court of the requesting State or take other
appropriate action to secure the proceeds following a request by the
requesting State.
 
6.   The Parties shall ensure that the rights of bona fide third parties shall
be respected in the application of the present Protocol.
 
     IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by
their respective Governments, have signed the present Protocol.
 
 
DONE at                  on                  in the
and                  languages,  both/all  texts being equally authentic.