اتفاقية التعاون المتبادل في مجال المساعدات القانونية في المسائل الجنائية بين الكويت وامريكا ( اتفاقية التعاون القضائي في مجال المساعدات الجنائية )

اتفاقية التعاون المتبادل في مجال المساعدات القانونية في المسائل الجنائية بين الكويت وامريكا ( اتفاقية التعاون القضائي في مجال المساعدات الجنائية )


TREATY BETWEEN THE GOVERNMENT OF
THE STATE OF KUWAIT AND THE GOVERNMENT OF
THE UNITED STATES OF AMERICA ON MUTUAL
LEGAL ASSISTANCE IN CRIMINAL MATTERS

The Government of the State of Kuwait and the Government of the United States of America (hereinafter referred to as "the Parties"),
Desiring to improve the effectiveness of both Parties in the prevention, investigation, prosecution and suppression of crime through cooperation and mutual assistance in criminal matters,
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, prosecutions 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 Party.
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;
(h) any other form of assistance compatible with the object of this Treaty and not prohibited by the laws of the requested Party.

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 Party of criminal judgements imposed in the requesting Party except to the extent permitted by the law of the requested Party and the article 18 of 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 central authorities
1. Each Party shall designate and indicate to the other Party a central authority or authorities by or through which requests for the purpose of the present Treaty should be made or received.
The central authority for the Sate of Kuwait shall be the Ministry of Justice or an official designated by that Ministry United States of America shall be the Minister of Justice or an official designated by that Minister.
2. The central authorities shall communicate through the diplomatic channel or directly with each other for the purposes of this Treaty.




Article 4
Refusal of assistance
1. The requested Party may refuse the assistance if:
a) the execution of the request would impair its sovereignty, security, public order or other essential public interests;
b) the execution of the request would be contrary to the domestic law of the requested Party;
c) the request seeks restraint, forfeiture or confiscation of proceeds or instruments of crime which had it occurred within the jurisdiction of the requested Party, would not have been a crime in respect of which a confiscation order could have been made.
d) the request relates to the prosecution of a person for conduct that would not, if it had taken place within the jurisdiction of the requested Party, have constituted an offense.
e) the request relates to an offence in respect of which the accused person had been finally acquitted, pardoned, or by reason of lapse of time.
2. Before refusing to grant a request for assistance, the Requested Party shall consider whether assistance may be granted subject to such conditions as it deems necessary. If the Requesting Party accepts assistance subject to these conditions, it shall comply with them.
3. The requesting Party may postpone the execution of the request if its immediate execution would interfere with an ongoing investigation or prosecution in the requested Party.
4. 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, prosecution 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 Party 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) Information on the identity, nationality and location of any person or persons who are the subject of the investigation, prosecution or proceeding in the requesting Party and of any person from whom evidence is sought;
(h) A description of the person or place to be searched and of the items to be seized;
(i) Information as to the allowances and expenses to which a person asked to appear in the requesting Party will be entitled;
( j) The need for confidentiality and the reasons therefore; and
(k) 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 Party or into the English language.
3. If the requested Party 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 Party. To the extent consistent with its law and practice, the requested Party shall carry out the request in the manner specified by the requesting Party.



Article 7
Return of material to the requested Party
Any property, as well as original records or documents, handed over to the requesting Party under the present Treaty shall be returned to the requested Party as soon as possible unless the latter waives its right of return thereof.


Article 8
Limitation on use
Unless otherwise agreed, the requesting Party shall not, without the consent of the requested Party, use or transfer information or evidence provided by the requested Party for investigations or proceedings other than those stated in the request.


Article 9
Protection of confidentiality
Upon request:
(a) The requested Party 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 Party shall so inform the requesting Party, which shall then determine whether the request should nevertheless be executed;
(b) The requesting Party shall keep confidential evidence and information provided by the requested Party, 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 Party shall effect service of documents that are transmitted to it for this purpose by the requesting Party.

2. A request to effect service of summons shall be made to a requested Party not less than forty-five (45) days before the date on which the appearance of a person is required. In urgent cases, the requested Party may waive the time requirement.

3. The requested Party shall forward to the requesting Party a proof of service. If service cannot be effected, the requesting Party shall be so informed and advised of the reasons.


Article 11
Obtaining of evidence
1. The requested Party 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 Party.
2. Upon the request of the requesting Party, the parties to the relevant proceedings in the requesting Party, their legal representatives and representatives of the requesting Party may, subject to the laws and procedures of the requested Party, be present at the proceedings.
3. The requested Party shall permit the presence of such persons as specified in the request for assistance during the execution of the request, and, to the extent permitted by its law, may allow such persons to question the person whose testimony or evidence is being taken. In the event that such direct questioning is not permitted, such persons shall be allowed to submit questions to be posed to the persons whose testimony or evidence is being taken.

Article 12
Right or obligation to decline to give evidence
1. A person who is called upon to give evidence in the requested or requesting Party may decline to give evidence where either:
(a) The law of the requested Party permits or requires that person to decline to give evidence in similar circumstances in proceedings originating in the requested Party; or
(b) The law of the requesting Party permits or requires that person to decline to give evidence in similar circumstances in proceedings originating in the requesting Party.
2. If a person claims that there is a right or obligation to decline to give evidence under the law of the other Party, the Party where that person is present shall, with respect thereto, rely on a certificate of the competent authority of the other Party 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 Party, and if the requested Party agrees and its law so permits, a person in custody in the latter Party may, subject to his or her consent, be temporarily transferred to the requesting Party 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 Party, the requesting Party shall hold that person in custody and shall return that person in custody to the requested Party 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 Party advises the requesting Party 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.

4. For the purpose of this Article, the person transferred shall receive credit for service of the sentence imposed in the requested Party for time served in the custody of the requesting Party.
ARTICLE 14
Availability of other persons
to give evidence or assist in investigations
1. The requesting Party may request the assistance of the requested Party in inviting a person:
(a) To appear in proceedings in relation to a criminal matter in the requesting Party unless that person is the person charged; or
(b) To assist in the investigations in relation to a criminal matter in the requesting Party.
2. The requested Party shall invite the person to appear as a witness or expert in proceedings or to assist in the investigations. Where appropriate, the requested Party 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 Party.

Article 15
Safe conduct
1. Subject to paragraph 2 of the present article, where a person is in the requesting Party 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 Party in respect of any acts or omissions or convictions that preceded the person's departure from the requested Party;
(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 Party within a period of 15 consecutive days, 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 Party 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 Party 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 Party shall, in so far as its law permits, carry out requests for search and seizure and delivery of any material to the requesting Party for evidentiary purposes, provided that the request includes the information justifying such action under the laws of the requested Party and the rights of bona fide third parties are protected.

Article 18
Proceeds of crime
1. In the present article "proceeds of crime" means any property suspected, or considered 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 Party shall, upon request, endeavour to ascertain whether any proceeds of the alleged crime 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. In pursuance of a request made under paragraph 2 of the present article, the requested Party 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 article, suspected proceeds of crime are found, the requested Party 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 Party.
5. The requested Party 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 Party or take other appropriate action to secure the proceeds following a request by the requesting Party.
6. The Parties shall ensure that the rights of bona fide third parties shall be respected in the application of the present article.
7. The requested Party in control of forfeited proceeds shall dispose of them in accordance with its law. To the extent permitted by its law and upon such terms as it deems appropriate, the requested Party may transfer forfeited proceeds to the requesting Party.


Article 19
Certification and authentication
1. 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.
2. Insofar as not prohibited by the law of the requested Party documents, records or other materials shall be transmitted in a form or accompanied by such certification as may be requested by the requesting Party in order to make them admissible according to the law of the requesting Party.

Article 20
Costs

1. The requested Party shall shoulder the cost of executing a request for assistance, except that the requesting Party shall bear:
(a) the expenses associated with conveying any person to or from the territory of the requested Party at the request of the requesting Party, and any allowances or expenses payable to that person while in requesting Party pursuant to a request under Article 13 or 14; and
(b) the expenses and fees of experts.
2. 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 21
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 22
Final provisions

1. This treaty shall be subject to ratification in accordance with the constitutional procedures in force in both Parties. It shall become effective after thirty (30) days from the last notification by which either Party shall inform the other in writing – through the diplomatic channels – that all the necessary legal procedure for entry into force of the Treaty have been fulfilled.
2. The present Treaty shall apply to offences made before as well as after its entry into force, even if the relevant acts or omissions occurred prior to that date.

3. This Treaty shall continue to remain valid after it enters into force in accordance with paragraph ( ) of the present article, unless either Party gives the other a written notice – through the diplomatic channels – of its intention to terminate it. Such termination shall be effective after one year from the date of notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Treaty.

DONE in duplicate at on this day of , 2007, in the Arabic, America and English languages, all texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.

FOR THE GOVERNMENT OF
THE STATE OF KUWAIT FOR THE GOVERNMENT OF
THE UNITED STATES OF AMERICA