TREATY BETWEEN THE GOVERNMENT OF CANADA AND THE
GOVERNMENT OF THE REPUBLIC OF PERU ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS
THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC
OF PERU, hereinafter referred to as the "Contracting
Parties";
DESIRING to improve mutual legal assistance in criminal
matters and to cooperate more effectively in the investigation and
prosecution, including trial and sentencing, of criminal
matters,
HAVE AGREED as follows;
PART I - GENERAL PROVISIONS
ARTICLE 1
OBLIGATION TO PROVIDE MUTUAL LEGAL
ASSISTANCE
(1) The Contracting Parties shall, in accordance with this
Treaty, provide each other with the widest measure of mutual legal
assistance in criminal matters.
(2) Mutual legal assistance is any assistance given by the
Requested State in respect of investigations or proceedings in the
Requesting State in a criminal matter, irrespective of whether the
assistance is sought or to be provided by a court or some other
authority.
(3) Criminal matters means, for the Republic of Peru,
investigations and proceedings relating to any criminal offence
created by penal law and, for Canada, investigations or proceedings
relating to any offence created by Parliament or by the legislature
of a province.
(4) Criminal matters includes investigations or proceedings
relating to offenses concerning taxation, duties and customs.
(5) Assistance includes, particularly:
(a) locating persons and objects;
(b) taking evidence and obtaining statements;
(c) authorizing the presence of persons from the Requesting
State at the execution of requests;
(d) providing documents, including bank documents, records, and
other documentary evidence;
(e) providing information;
(f ) providing objects, including lending exhibits;
(g) search and seizure;
(h) taking measures to locate, restrain and forfeit the proceeds
of crime;
(i) serving documents;
(j) facilitating the appearance of witnesses or the assistance
of persons in investigations;
(k) making detained persons available to give evidence or assist
investigations; and
(l) providing other assistance consistent with the objects of
this Treaty.
ARTICLE 2
APPLICABLE LAW
(1) Requests for assistance shall be executed promptly in
accordance with the law of the Requested State and, insofar as not
prohibited by that law, in the manner specified by the Requesting
State.
(2) The Requested State shall, upon request, inform the
Requesting State of the date and place of execution of the request
for assistance.
(3) The Requested State shall not refuse to execute a request on
the ground of bank secrecy.
ARTICLE 3
REFUSAL OR POSTPONEMENT OF ASSISTANCE
(1) Legal Assistance may be refused where:
(a) the Requested State considers that execution of the request
would prejudice the sovereignty, security, public order or other
essential interests of the Requested State;
(b) the request refers to an offence considered by the Requested
State to be a political offence or an offence of a purely military
nature.
(2) Assistance may be postponed by the Requested State if
execution of the request would interfere with an ongoing
investigation or prosecution in the Requested State.
(3) The Requested State shall:
(a) promptly inform the Requesting State of a decision of the
Requested State not to comply in whole or in part with a request
for assistance, or to postpone execution, and shall give reasons
for that decision;
(b) evaluate, prior to refusing or postponing the execution of a
request, whether legal assistance may be provided under the
conditions it deems necessary. These conditions shall, if accepted,
be complied with by the Requesting State.
PART II - OBTAINING EVIDENCE
ARTICLE 4
RESTRICTION OF USE
The Requesting State shall not disclose or use information or
evidence furnished for purposes other than those stated in the
request without the prior consent of the Central Authority of the
Requested State.
ARTICLE 5
LOCATING AND IDENTIFYING PERSONS AND
OBJECTS
The competent authorities of the Requested State shall make best
efforts to ascertain the location and identity of persons and
objects specified in the request.
ARTICLE 6
TAKING EVIDENCE IN THE REQUESTED STATE
(1) A person requested to testify and produce documents, records
or objects in the Requested State shall be compelled, if necessary,
to appear and testify and produce such documents, records or
objects, in accordance with the law of the Requested State.
(2) To the extent not prohibited by the law of the Requested
State, officials of the Requesting State and other persons
specified in the request shall be permitted to be present at the
execution of the request and to participate in the proceedings in
the Requested State.
(3) The right to participate in the proceedings in the Requested
State shall include the right of any official of the Requesting
State and other persons specified in the request, and present, to
pose questions. The persons present at the execution of a request
shall be permitted to make a verbatim record of the proceedings.
The use of technical means to make such a verbatim record shall be
permitted.
ARTICLE 7
PRESENCE OF PERSONS AT THE EXECUTION OF
REQUESTS
To the extent not prohibited by the law of the
Requested State, persons specified in the request shall be
permitted to be present at the execution of the request.
ARTICLE 8
PROVISION OF DOCUMENTS, RECORDS AND
OBJECTS
(1) The Requested State shall provide copies of
publicly available information, documents and records of government
departments and agencies.
(2) The Requested State may provide any information, documents,
records and objects in the possession of a government department or
agency, but not publicly available, to the same extent and under
the same conditions as would be available to its own law
enforcement and judicial authorities.
(3) The Requested State may provide certified true copies of
documents or records, unless the Requesting State expressly
requests originals.
(4) Original documents, records or objects provided to the
Requesting State shall be returned to the Requested State as soon
as possible, upon request.
(5) Insofar as not prohibited by the law of the Requested State,
documents, records or objects shall be provided in a form or
accompanied by such certification as may be specified by the
Requesting State in order to make them admissible according to the
law of the Requesting State.
ARTICLE 9
PROVISION OF CRIMINAL RECORDS
Without limiting the provisions of Article 7, the Requested
State shall, in accordance with law and upon request, provide
records of the previous criminal convictions of a person.
ARTICLE 10
SEARCH AND SEIZURE
(1) The Requested State shall execute a request for a search and
seizure.
(2) The competent authority that has executed a request for a
search and seizure shall provide such information as may be
required by the Requesting State concerning, but not limited to,
the identity, condition, integrity and continuity of possession of
the documents, records or objects seized and the circumstances of
the seizure.
ARTICLE 11
PROCEEDS OF CRIME
(1) The Requested State shall, upon request, endeavour to
ascertain whether any proceeds of a crime are located within its
jurisdiction and shall notify the Requesting State of the results
of its inquiries.
(2) When, pursuant to paragraph 1 of this Article, suspected
proceeds of crime are found, the Requested State shall take such
measures as are permitted by its law to restrain and forfeit these
proceeds;
(3) Proceeds forfeited pursuant to this Treaty shall accrue to
the Requested Party, unless specified in a separate
agreement.
ARTICLE 12
RESTITUTION AND FINE ENFORCEMENT
The Requested State shall, to the extent permitted by its law,
provide assistance concerning restitution to the victims of crime
and the collection of fines imposed as a sentence in a criminal
prosecution.
ARTICLE 13
SERVICE OF DOCUMENTS
(1) The Requested State shall effect service of any document,
including judicial documents, sent to it for this purpose by the
Requesting State
(2) Service may be effected by personally delivering the
document to the person. The Requested State shall, upon request,
effect service in accordance with its law or in the manner
specified in the request, provided that it is not prohibited by its
law.
(3) The Requested State shall return a proof of service in the
manner required by the Requesting State . Where service cannot be
effected the Requested State shall promptly inform the Requesting
State of the reason.
(4) The Requesting State shall transmit a request for the
service of a document requesting the appearance of a person located
in the Requested State in order that the document may reach this
person within a reasonable period of time prior to the date set for
appearance.
ARTICLE 14
ATTENDANCE OF PERSONS INCLUDING WITNESSES AND
EXPERTS
IN THE REQUESTING STATE
(1) Where the Requesting State requires the presence of a person
to assist in an investigation or to appear as a witness including
as an expert witness, in the Requesting State, it shall so indicate
in the request.
(2) The Requested State shall encourage the person to appear.
The Requested State shall promptly inform the Requesting State of
the response of the person.
(3) The Requesting State shall bear the cost of the fees, travel
expenses, and allowances payable to a person assisting an
investigation or appearing as a witness, including as an expert
witness, in the Requesting State pursuant to a request.
ARTICLE 15
FAILURE TO APPEAR
A witness, including an expert witness, who does not comply with
a request seeking that person's attendance in the Requesting State
shall not be subjected to any sanction or measure of constraint in
that state except when, subsequently, that person voluntarily
enters the territory of the Requesting State and is then again duly
ordered to appear.
ARTICLE 16
SAFE CONDUCT
(1) Subject to Article 17 (2), a person present in the
Requesting State in response to a request shall not be prosecuted,
detained or subjected to any other restriction of personal liberty
in that State for any acts or omissions which preceded that
person=s departure from the Requested State, nor shall that person
be obliged to give evidence in any proceeding other than that to
which the request relates.
(2) Paragraph 1 of this Article shall cease to apply if a
person, being free to leave the Requesting State, has not left
within thirty days after receiving official notification that the
person=s attendance is no longer required or, having left, has
voluntarily returned.
(3) A person who fails to appear in the Requesting State shall
not be subjected to any sanction or compulsory measure in the
Requested or Requesting State except as provided in Article
15.
ARTICLE 17
TEMPORARY TRANSFER OF SENTENCED PERSONS IN
CUSTODY
(1) Upon request, a person serving a sentence in the Requested
State shall be temporarily transferred to the Requesting State to
assist investigations or to testify, provided that the person
consents.
(2) When the person transferred is required to be kept in
custody under the law of the Requested State, the Requesting State
shall hold that person in custody and shall return the person in
custody at the conclusion of the execution of the request.
(3) When the sentence imposed expires, or 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 present in the Requesting
State pursuant to a request seeking that person=s
attendance.
PART III - PROCEDURE
ARTICLE 18
CENTRAL AUTHORITIES
(1) For the purposes of this Treaty, the Central Authority for
Canada shall be the Minister of Justice or an official designated
by that Minister and the Central Authority for the Republic of Peru
shall be the Public Ministry of Peru.
(2) The Central Authorities shall transmit and receive requests
for legal assistance and responses thereto under this Treaty.
(3) The Central Authorities of the contracting Parties shall
communicate directly with one another.
ARTICLE 19
CONFIDENTIALITY
(1) The Requested State may require, after consultation with the
Requesting State, that information or evidence furnished or the
source of such information or evidence be kept confidential or be
disclosed or used only subject to such terms and conditions as it
may specify.
(2) The Requesting State may require that the request, its
contents, supporting documents and any action taken pursuant to the
request be kept confidential. If the request cannot be executed
without breaching the confidentiality requirement, the Requested
State shall so inform the Requesting State prior to executing the
request and the latter shall then determine whether the request
should nevertheless be executed.
ARTICLE 20
CONTENTS OF REQUESTS
(1) In all cases requests for assistance shall indicate:
(a) the competent authority conducting the investigation or
proceedings to which the request relates;
(b) the nature of the investigation or proceedings, and include
a summary of the facts and a copy of the applicable laws;
(c) the purpose of the request and the nature of the assistance
sought;
(d) the degree of confidentiality required and the reasons
therefor; and
(e) any time limit within which the request should be
executed.
(2) In the following cases requests for assistance shall
include:
(a) in the case of requests for the taking of evidence, search
and seizure, or the location, restraint or forfeiture of proceeds
of crime, a statement indicating the basis for belief that evidence
or proceeds may be found in the Requested State;
(b) in the case of requests to take evidence from a person, an
indication as to whether sworn or affirmed statements are required
and a description of the subject matter of the evidence or
statement sought;
(c) in the case of lending of exhibits, the current location of
the exhibits in the Requested State and an indication of the person
or class of persons who will have custody of the exhibits in the
Requesting State, the place to which the exhibit is to be removed,
any tests to be conducted and the date by which the exhibit will be
returned;
(d) in the case of making detained persons available, an
indication of the person or class of persons who will have custody
during the transfer, the place to which the detained person is to
be transferred and the date of that person=s return;
(3) If necessary and where possible requests for assistance
shall include:
(a) the identity, nationality and location of the person or
persons who are the subject of the investigation or
proceedings;
(b) details of any particular procedure or requirement that the
Requesting State wishes to be followed and the reasons therefor
(4) If the Requested State considers that the information is not
sufficient two enable the request to be executed, it may request
additional information.
(5) Requests shall be made in writing. In urgent circumstances,
a request may be made orally but shall be confirmed in writing
promptly thereafter.
ARTICLE 21
EXECUTION OF REQUESTS
(1) The Central Authority of the Requested State shall, where
the request conforms with the provisions of this Treaty, transmit
the request to its competent authority.
(2) The Central Authority of the Requested State shall, where
the request does not conform with the provisions of this treaty,
inform the Central Authority of the Requesting State.
ARTICLE 22
EXEMPTION FROM AUTHENTICATION
Documents, records or objects transmitted or received pursuant
to this Treaty shall not require any certification or
authentication except as specified in Article 8.
ARTICLE 23
LANGUAGE
(1) Requests made pursuant to this Treaty and supporting
documents shall be in an official language of the Requested
State.
(2) The Requested State shall submit documents and statements
obtained in executing a request in the language in which they are
produced in that State.
ARTICLE 24
COSTS INVOLVED IN THE EXECUTION OF
REQUESTS
(1) The Requested State shall meet the cost of executing the
request for assistance, except that the Requesting State shall bear
the following expenses:
(a) the expenses associated with conveying any person to or from
the territory of the Requested State at the request of the
Requesting State and any expenses payable to that person while in
the Requesting or Requested State pursuant to a request under
Articles 7, 14 or 17 of this Treaty;
(b) the expenses and fees of experts either in the Requested
State or the Requesting State;
(c) the expenses of translation, interpretation and
transcription.
(2) If it becomes apparent that the execution of the request
requires expenses of an extraordinary nature, the Contracting
Parties shall consult to determine the terms and conditions under
which the requested assistance can be provided.
PART IV - FINAL PROVISIONS
ARTICLE 25
OTHER ASSISTANCE
This Treaty shall not derogate from obligations subsisting
between the Contracting Parties whether pursuant to other treaties
arrangements or otherwise, or prevent the Contracting Parties from
providing or continuing to provide assistance to each other
pursuant to other treaties, arrangements or otherwise.
ARTICLE 26
CONSULTATIONS
The Contracting Parties shall consult promptly, at the request
of either Party, concerning the interpretation and the application
of this Treaty.
ARTICLE 27
ENTRY INTO FORCE AND TERMINATION
(1) This Treaty shall enter into force on the date on which the
Contracting Parties have notified each other that their legal
requirements have been complied with.
(2) This Treaty shall apply to any request presented after its
entry into force even if the relevant acts or omissions occurred
before that date.
(3) Either Contracting Party may terminate this Treaty. The
termination shall take effect one year from the date on which it
was notified to the other Contracting Party.
IN WITNESS THEREOF the undersigned, being duly authorized
thereto by their respective Governments, have signed this
Treaty.
DONE in two copies at Ottawa, this 27th day of October
One thousand nine hundred and ninety height, in the English, French
and Spanish languages, each version being equally authentic.
FOR THE GOVERNMENT OF CANADA
"GRAEME CLARK"
Ambassadeur du Canada
FOR THE GOVERNMENT OF THE REPUBLIC OF PERU
"DR. JORGE BACA CAMPOTONICO
Minister of Economy and Finance
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