LAW 23 February 1961 n. 215.
(published in the Official Journal of 13 April 1961, no. 92)
RATIFICATION AND EXECUTION OF THE EUROPEAN CONVENTION ON LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED IN STRASBOURG ON 20 APRIL 1959.
TITLE I – General provisions – Art.1 – Art. 2
TITLE II – Requests for rogatory letters – Art.3 – Art.6
TITLE III – Delivery of procedural documents and judicial decisions. Appearance of witnesses, experts and persons under investigation – Art.7 – Art.12
TITLE IV – Criminal records – Art.13
TITLE V – Procedure – Art.14 – Art.20
TITLE VI – Complaint aimed at proceedings – Art.21
TITLE VII – Exchange of information on convictions – Art.22
TITLE VIII – Final provisions – Art.23 – 30
The signatory Governments Members of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve a more solid union between its Members;
Convinced that the adoption of common rules in the field of legal assistance in criminal matters achieves this objective;
Considering that judicial assistance is a matter connected to that of extradition which has already been the subject of an agreement dated 13 December 1957,
They agree as follows:
1. The Contracting Parties undertake to grant each other, in accordance with the provisions of this Convention, the widest possible legal assistance in any procedure relating to criminal offenses the repression of which, at the time of the request for assistance, falls within the competence of the judicial authority of the requesting party.
2. This Convention does not apply either to the execution of arrest and sentencing decisions or to military crimes which do not correspond to common law cases.
Legal assistance may be refused:
a) if the request refers to crimes considered by the requested Party to be political, or connected to political crimes, and to tax crimes;
b) if the requested Party judges that the execution of the request constitutes a danger to the sovereignty, security, public order or other essential interests of its nation.
Requests for letters rogatory
1. The requested Party will execute, in the forms provided for by its legislation, requests for letters rogatory relating to a criminal matter, which are addressed to it by the judicial authority of the requesting Party and which have as their object the carrying out of investigative measures or the communication of confessions, files or documents.
2. If the requesting Party wishes witnesses or experts to testify under oath, it shall expressly request this and the requested Party shall grant this if the law of its country does not preclude this.
3. The requested Party may only transmit certified copies or photocopies of the requested files or documents. In any case, if the requesting Party expressly requests the sending of the originals, it must take the request into consideration to the extent possible.
If the requesting Party expressly requests it, the requested Party will inform it of the date and place of execution of the letter rogatory. The authorities and interested persons will be able to witness the implementation if the requested Party consents.
1. The Contracting Parties may, upon signing the Convention or depositing the instruments of ratification or accession, by declaration addressed to the Secretary General of the Council of Europe, reserve the right to condition the execution of letters rogatory for the purpose of search or seizure , under one of the following conditions:
a) the crime must be punishable according to the law of both the requested and requesting Parties;
b) the crime must be among those which give rise to extradition to the requested country;
c) the execution of the letter rogatory must be compatible with the law of the requested Party;
2. If a Contracting Party has communicated the declaration referred to in the first paragraph of this article, the other Parties may apply the reciprocity rule.
1. The requested Party may postpone the delivery of the objects, files or documents whose communication is requested if they are necessary for a pending criminal proceeding.
2. The objects, as well as the originals of the documents and files communicated in execution of a letter rogatory, will be returned as soon as possible by the requesting Party to the requested Party unless the latter waives it.
Delivery of procedural documents and judicial decisions
Appearance of witnesses, experts and persons under investigation.
1. The requested Party will proceed with the delivery of the procedural documents and judicial decisions sent to it for this purpose by the requesting Party.
This delivery can be carried out by simply transmitting the act or decision to the recipient. If the requesting Party expressly requests it, the requested Party will carry out delivery in one of the forms provided for in similar cases by its legislation or in a special form permitted by its legislation.
2. Proof of delivery will be given by means of a receipt dated and signed by the recipient or with a declaration from the requested Party ascertaining the fact, form and date of delivery. One or the other of these documents will be immediately transmitted to the requesting Party. Upon request from the latter, the requested Party will specify whether the delivery was made in a manner compliant with its law. If delivery cannot be made, the requested Party will immediately communicate the reason to the requesting Party.
3. The Contracting Parties may, at the time of signing this Convention or depositing the instruments of ratification or accession, by declaration addressed to the Secretary General of the Council of Europe, request that the summons to appear be addressed to a person under investigation who is in its territory is transmitted to its competent authority within a certain period prior to the date of appearance. This deadline will be specified in the declaration, but cannot exceed 50 days.
This deadline will be taken into account when setting the date of appearance and its calculation must be done starting from the transmission of the summons.
The witness or expert who has not been summoned to appear, whose surrender has been requested, will not be subject, even if the summons contains injunctions, to a sanction or repressive measure, unless he spontaneously travels to the territory of the requesting Party and that he is duly cited here again.
The allowances as well as travel and accommodation expenses to be reimbursed to the witness or expert, paid by the requesting Party, will be calculated from the place of residence and will be granted according to values at least equal to those provided for by the tariffs and regulations in force in the country where the hearing is to take place.
1. If the requesting Party considers that the personal appearance of a witness or expert before its judicial authority is particularly necessary, it will mention this in the request for delivery of the summons and the requested Party will invite the witness or expert to appear.
The requested Party will make the response of the witness or expert known to the requesting Party.
2. In the case provided for in the first paragraph of this article, the request or summons must indicate the approximate amount of the compensation to be paid as well as the reimbursement of travel and subsistence expenses.
3. If a request is presented in this way, the requested Party may allow an advance payment to the witness or expert. This will be indicated in the summons and reimbursed by the requesting Party.
1. Detained persons, whose personal appearance as witnesses or for discussions is requested by the requesting Party, will be temporarily transferred to the territory in which the hearing is to take place, provided that it is postponed within the deadline indicated by the requested Party except as provided for by the provisions of article 12 as applicable.
The transfer may be refused:
a) if the detained person does not consent;
b) if his presence is necessary in criminal proceedings underway in the territory of the requested Party;
c) whether the transfer could prolong his detention;
d) if other serious considerations oppose its transfer to the territory of the requested Party.
2. In the case provided for in the previous paragraph and except as provided for in the provisions of Article 2, the transit of the person detained on the territory of a third State, Party to this Convention, will be granted on the basis of an application accompanied by the useful documentation addressed by the Minister of Justice of the requesting Party to the Minister of Justice of the Party to which transit is requested.
The Contracting Parties may refuse to grant transit to their citizens.
3. The transferred person must remain in detention in the territory of the requesting Party, and if necessary, in the transit territory, unless the Party requesting the transfer requests release.
1. No witness or expert, of any nationality, who, following a summons, appears before the judicial authority of the requesting Party, may be prosecuted, detained or subjected to other restrictions of personal freedom in the territory of this Party. for facts or convictions prior to his departure from the territory of the requested Party.
2. No one, regardless of nationality, summoned before the judicial authority of the requesting Party to answer for facts for which he or she is under investigation, may be subjected to investigations, detention or other restrictions on individual freedom for facts or convictions prior to his departure from the territory of the requested Party and not communicated with a summons.
3. The immunity provided for in this article ceases if the witness, expert or person under investigation, having had the possibility of leaving the territory of the requesting Party for fifteen consecutive days, after his presence was no longer required by the authority judicial investigation, has lingered in this territory or has returned to it.
1. The requested Party communicates, to the extent that its judicial authority can obtain the same in similar cases, the extracts from the criminal records and all the information relating to the latter that is requested by the judicial authority of a Contracting Party for the investigation of a criminal matter.
2. In cases other than that provided for in the first paragraph of this article, the request will still be followed up within the limits permitted by the laws, regulations and customs of the requested Party.
1. Requests for assistance must contain the following indications:
a) the authority issuing the request,
b) the object and reason for the request,
c) to the extent possible the identity and nationality of the person concerned, and
d) the name and address of the recipient if there is reason to do so.
2. The letters rogatory provided for in articles 3, 4 and 5 will also indicate the charges and a summary of the facts.
1. The requests provided for in articles 3, 4 and 5 as well as the questions provided for in article 11 will be addressed by the Minister of Justice of the requesting Party to the Minister of Justice of the requested Party and returned by the same route.
2. In cases of urgency, the said letters rogatory may be addressed directly by the judicial authority of the requesting Party to the judicial authority of the requested Party. They will be returned accompanied by the documents relating to the execution via the route provided for in the first paragraph of this article.
3. The questions provided for in the first paragraph of Article 13 may be sent directly by the judicial authority to the competent service of the requested Party, and the answers may be sent directly from this service. The questions provided for in paragraph 2 of Article 13 will be addressed by the Minister of Justice of the requesting Party to the Minister of Justice of the requested Party.
4. Requests for judicial assistance other than those provided for in paragraphs 1 and 3 of this article and specifically requests for investigations prior to indictment, may be the subject of direct communications between judicial authorities.
5. In cases where direct communication is permitted by this Convention, it may be carried out through the International Criminal Police Organization (Interpol).
6. Each Contracting Party may, at the time of signing this Convention or depositing the instruments of ratification or accession, by declaration addressed to the Secretary General of the Council of Europe, make it known that all or certain requests for legal assistance must be addressed to it by means other than that provided for in this article, either request that in the case provided for in paragraph 2 of this article, a copy of the letter rogatory is also communicated to your Minister of Justice.
7. This article does not prejudice the provisions of bilateral agreements or arrangements in force between Contracting Parties, which provide for the direct transmission of requests for mutual assistance between the authorities of the Parties.
1. Except as provided in the second paragraph of this article, the translation of the applications and attached documents is not required.
2. The Contracting Parties may, at the time of signature or deposit of the instruments of ratification or accession, by declaration addressed to the Secretary General of the Council of Europe, reserve the right to require that the applications and attached documents be sent or accompanied by translation in your own language, or by translation into any of the official languages of the Council of Europe or into a different one indicated. The other Parties may apply the rule of reciprocity.
3. This article does not prejudice the provisions relating to the translation of requests and attached documents contained in agreements or understandings in force or in progress between two or more Contracting Parties.
The writings and documents transmitted in application of this Convention are exempt from any legalization formality.
If the authority indicated in a request for assistance is incompetent, it will officially inform the competent authority of its country and, in the event that the request has been sent directly, it will inform the requesting Party in the same way.
Any refusal of legal assistance must be motivated.
Except as provided for in the provisions of article 9, the execution of requests for assistance does not give rise to any reimbursement of expenses,
Complaint for proceedings
1. Any complaint made by a Contracting Party with a view to proceedings before the judicial authority of another Party will be the subject of communications between Ministers of Justice. The Contracting Parties may make use of the option provided for in paragraph 6 of Article 15.
2. The requested Party communicates the action taken on the complaint and transmits, if it deems it appropriate, a copy of the decision taken.
3. The provisions of article 16 apply to the denunciations provided for in the first paragraph of this article.
Exchange of sentencing information
Each Contracting Party communicates to the interested Party in relation to its citizens the criminal sentences and the measures adopted and which have been the subject of an entry in the criminal record. The Ministers of Justice communicate this news to each other at least once a year. If the person to whom the news refers is considered a national of two or more Contracting Parties, the news will be communicated to each Party concerned unless he or she holds the nationality of the Party on whose territory he or she was convicted.
1. Each Contracting Party may, at the time of signing this Convention or depositing the instruments of ratification or accession, make a reservation on one or more provisions contained in the Convention.
2. The Contracting Party which has made a reservation will withdraw it as soon as circumstances permit. The dissolution of reservations is carried out by notification addressed to the Secretary General of the Council of Europe.
3. A Contracting Party which has made a reservation on a provision of the Convention may not require the application of this provision by another Party except to the extent that it has accepted it itself.
Each Contracting Party may, at the time of signing this Convention or depositing the instruments of ratification or accession, by declaration addressed to the Secretary General of the Council of Europe, indicate which authorities it considers to be judicial for the purposes of this Convention.
1. This Convention applies to the national territories (?) of the Contracting Parties.
2. As regards France, it also applies to Algeria and the overseas departments and as regards Italy, to the Somali territory administered by Italy.
3. The Federal Republic of Germany may extend the application of the Convention to the Land of Berlin with a declaration addressed to the Secretary General of the Council of Europe.
4. As regards the Kingdom of the Netherlands, this Convention applies to its European territory. The Kingdom may extend the application of the Convention to the Netherlands Antilles (?), Surinam and Dutch New Guinea with a declaration addressed to the Secretary General of the Council of Europe.
5. By direct agreement between two or more Contracting Parties, the scope of application of this Convention may be extended, under the conditions stipulated therein, to all the territories of one of these Parties for which it will ensure international relations, in addition to those provided in paragraphs 1, 2, 3 and 4 of this article.
1. Except as provided in paragraph 7 of article 15 and paragraph 3 of article 16, this Convention repeals, with regard to the territories to which it applies, the provisions of treaties, conventions or bilateral agreements which, between two Contracting Parties, regulate mutual assistance in criminal matters.
2. In any case, this Convention will not prejudice the obligations contained in the provisions of any other international convention of a bilateral or multilateral nature which between two Contracting Parties regulate or are intended to regulate, in a particular context, mutual assistance in criminal matters.
3. The Contracting Parties may not conclude between themselves bilateral or multilateral agreements relating to mutual assistance in criminal matters other than to complement the provisions of this Convention or to facilitate the application of the principles contained therein.
4. Where mutual assistance in criminal matters is practiced between two or more Contracting Parties on the basis of uniform legislation or a particular regime which provides for the mutual application of mutual assistance measures in their respective territories, these Parties will have the power to regulate the their mutual relations in this field by reference exclusively to these systems notwithstanding the provisions of this Convention. Contracting Parties which exclude or will exclude from their mutual relations the application of this Convention, as provided for in this paragraph, shall notify the Secretary General of the Council of Europe.
1. This Convention will remain open for signature by the Members of the Council of Europe. It will be ratified and the instruments of ratification will be deposited with the Secretary General of the Council.
2. The Convention will enter into force 90 days after the date of deposit of the third instrument of ratification.
3. It will enter into force with respect to signatories who further ratify it 90 days after the deposit of the instrument of ratification.
1. The Committee of Ministers of the Council of Europe may invite non-member States of the Council to adhere to this Convention. The resolution relating to this invitation must obtain the unanimous agreement of the Members of the Council who have ratified the Convention.
2. Membership will be effected by depositing, with the Secretary General of the Council, an instrument of membership which will become effective 90 days after deposit.
Each Contracting Party may, as far as it is concerned, denounce this Convention by notification to the Secretary General of the Council of Europe. This denunciation will take effect six months after the date of receipt of the relevant notification by the Secretary General of the Council.
The Secretary General of the Council of Europe will notify the Members of the Council and the Government of each State which has acceded to this Convention: a)
the names of the signatories and the deposit of the instruments of ratification or accession;
b) the date of entry into force;
(c) any notification received pursuant to paragraph 1 of Article 5, paragraph 3 of Article 7, paragraph 6 of Article 15, paragraph 2 of Article 16, Article 24, paragraphs 3 and 4 of Article 25 and paragraph 4 of Article 26;
d) any reservation made pursuant to the provisions of paragraph 1 of Article 23;
e) the withdrawal of any reservation made in application of the provisions of paragraph 2 of Article 23;
f) any notification of denunciation received pursuant to the provisions of Article 29 and the date from which it will take effect.
In witness whereof, the undersigned, authorized to this effect, have signed this Convention.
Done at Strasbourg, 20 April 1959, in French and English, the two texts are equally authentic, in a single copy, which will be deposited in the archives of the Council of Europe. The Secretary General of the Council will send a certified copy to the signatory and adhering Governments.