SISTEMA DE LA INTEGRACION CENTROAMERICANA Secretaría General

Transcription

1 En la sede de la Secretaria del Sistema de la Integración Centroamericana, Boulevard Orden de Malta, número cuatrocientos setenta, Antiguo Cuscatlán, a las once horas del día seis de octubre de dos mil cinco. Señora Notaria LAURA MARIA RIVERA PLATERO, yo FRIDA DE GARCÍA, de generales conocidas en las diligencias de traducción, que ante sus oficios notariales solicitó el señor Erick Constantino Vilchez Ascher, en su calidad de Apoderado General Administrativo y Judicial de la del Sistema de la Integración Centroamericana, a Usted en mi calidad de perito traductor de las mismas, le manifiesto que el tenor literal del Tratado de Asistencia Legal Mutua en Asuntos Penales, escrito en idioma castellano, que se ha ordenado traducir al idioma inglés, dice: TREATY AMONG THE REPUBLICS OF COSTA RICA, EL SALVADOR, GUATEMALA, HONDURAS, NICARAGUA AND PANAMA ON LEGAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS The Ministers of Foreign Affairs of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama, in an effort to strengthen and facilitate the cooperation among regional justice administration entities, by means of a legal instrument that shall enable legal assistance regarding criminal matters among the Central American States, and with full respect to the internal legislation of each individual state, agree the following. ARTICLE 1 DEFINITIONS For purposes of this Agreement, the terms below shall have the following meanings: 1 Contracting States: Ail the States that ratified or have adhered to the Treaty herein. 2. Requesting State: The State that requires legal assistance. 3. Requested State: The State to whom Legal Assistance is required.

2 4. Offence: Any conduct punishable under the laws of both the Requesting State and the Requested State. 5. Illegal Arms Trafficking: Any action to import, export, divert internally, manufacture, store or possess any type of weapon, ammunition, explosive, warfare elements, or military equipment and substances key to manufacture the same, in violation of the legal provisions of each Contracting State. ARTICLE 2 SCOPE 1. Contracting States, in accordance with the provisions set forth herein, shall procure legal assistance in criminal matters related to any punishable action typified by both the Requesting and the Requested States. 2. Legal, assistance, in accordance with the provisions set forth herein, shall include: a. Statements of witnesses; b. Evidence gathering and execution; c. Amendment of adjudications and other documents extracted from incumbent authorities; documents from authorities with jurisdiction; d. Execution of precautionary measures; e. Locating persons; and f. Any other legal assistance agreed upon between two or more Contracting States 3. This Treaty does not apply to: a. Any issue directly or indirectly related to taxes or fiscal concerns. b. Arrest of individuals seeking their extradition, or any extradition request. c. Transfer of criminal prosecutions. d. Transfer of prisoners to insure that the sentence is served e. The requested State serving sentences pronounced in the Requesting State. 4. The sole purpose of this Treaty is to provide legal mutual assistance regarding criminal matters and not to provide assistance to or participation third parties. 5. All assistance requests made under this Treaty shall be processed and executed in conformance with the laws of the Required State.

3 ARTICLE 3 CENTRAL AUTHORITY 1. Each Contracting State shall establish a Central Authority with sufficient administrative power to process the assistance requests in accordance with this Treaty. For Costa Rica the Central Authority shall be the Office of the Attorney General of the Republic that in each case shall refer the request to the authority with jurisdiction in the matter. For El Salvador the Central Authority shall be the Supreme Court of Justice. For Guatemala the Central Authority shall be the Supreme Court of Justice. For Honduras the Central Authority shall be the Supreme Court of Justice. For the Republic of Nicaragua the Central Authority shall be the Office of the Justice Attorney General. For Panama, the Central Authority shall be the Ministry of Government and Justice 2. Any change in the designation of Central Authorities shall be communicated to the depository of this Treaty who shall in turn notify the remaining Contracting States. ARTICLE 4 FORMAL ASSÍSTANCE REQUESTS 1 Assistance requests shall be made in writing containing the following information: a. The name of the incumbent authority requesting assistance; b. Purpose of the request and description of the assistance requested; c. Description of the criminal facts subject of assistance in accordance with the laws of the Requesting State. The text of relevant legal provisions shall be annexed or transcribed; d. Description and grounds of any particular procedure requested by the Requesting State; e. Specification on the time frame in which the Requesting State needs the request to be executed.

4 2. In certain relevant cases, the request should also include: a. Available information on the identity and whereabouts of the person or persons to be located; b. The identity and whereabouts of the person or persons to be served and the relationship of these persons to the proceedings; c. The identity and whereabouts of the person or persons from whom evidence is sought; d. Precise description and address of the place to be searched and the items to be seized; e. Any other data necessary to execute the assistance request. 3. In the event that the Requested State considers that the information contained in the assistance request is not sufficient to execute the same, it may request the Requesting State to furnish more information. ARTICLE 5 EXECUTION OF THE ASSISTANCE REQUEST The Central Authority of the Requested State shall promptly comply with the request or when appropriate shall transmit it to the authority with jurisdiction to do so. That authority shall use all legal means within its power to execute the request. The Courts of the Requested State shall have jurisdiction to issue subpoenas, search warrants, and other process in accordance with its laws in force, in the execution of the assistance request. ARTICLE 6 LIMITATIONS ON COMPLIANCE 1. The Central Authority of the Requested State may deny an assistance request to the extent that: a. The Requested State considers that the execution of the request would prejudice its sovereignty, security and public order;

5 b. The Requested State considers that the request relates to a political offence; c. There are substantial grounds to believe that the assistance request was made with the purpose to prosecute a person based on the race, gender, religion, nationality or political opinion of that person; d. The request made by the Requesting State relates to an offence not typified as such in the Requested State; and e. The assistance Request relates to an offence under investigation in the Requested State and that said assistance could damage the investigation carried out by the Requested State. f. The Requested State may delay the execution of the request provided that the immediate execution of the same could negatively interfere with an ongoing investigation in the Requested State. 2. The Requested State may consider subjecting the denial or postponement of a request to certain conditions that shall be established in accordance with each case in particular, and shall proceed to execute the request if the Requesting State accepts assistance subject to these conditions. 3. Every denial or postponement of assistance shall be duly reasoned. ARTICLE 7 TESTIMONY IN THE REQUESTED STATE 1. A person requested to testify or to produce documentary information or articles in the territory of the Requested State, as a result of a request, might be compelled to do so in accordance with the Law of the Requested State. 2. If the person testifying or required to produce documents in the Requested State asserts a claim of immunity, incapacity or privilege under the laws of the Requesting State, the claim shall be made known to the Requesting State for resolution by its authorities. 3. The Requested State shall furnish information in advance to the Requesting State about the date and place of the taking of testimony of witnesses.

6 4. The Requested State shall authorize the presence of such persons as specified in the request during the execution of the request and, subject to the laws of the Requested State, allow such persons to question the person whose testimony is sought. Any omission of the Requesting State that hinders o impedes the legal right of a person in the proceedings, shall be the exclusive liability of the Requesting State. 5. The business records produced under this Article shall be signed by the person in charge of maintaining them and certified by the Central Authority, through the use of a seal whose format is appended to this Treaty. No further certification or authentication shall be required. The documents certified as instructed herein, shall be sufficient proof and admitted as evidence of the truthfulness of the matter set forth therein. ARTICLE 8 TESTIMONY IN THE REQUESTING STATE 1. When the appearance of a person who is in the territory of the Requested State is needed in the territory of the Requesting State, for the purpose of the execution of a request under this Treaty, the Central Authority of the Requesting State may request that the Central Authority of the Requested State invite the person to appear before the appropriate authority in the territory of the Requesting State. The person required shall be told the kind and amount of expenses which the Requesting State has agreed to pay him or her. The response of the requested person shall be promptly transmitted to the Central Authority of the Requesting State. Such person shall be under no compulsion to accept such an invitation. 2. Any request to serve the invitation made to a person with the purpose of appearing before the appropriate authority of the Requesting State shall be made with at least thirty (30) days in advance before the date of the appearance, unless otherwise agreed upon. 3. The Requested State shall send the Requesting State the proof of having served the notification, detailing the manner and the date in which it was carried out. ARTICLE 9 TRANSFERRING PERSONS IN CUSTODY FOR TESTIMONIAL PURPOSES. 1 A person in custody in the Requested State, regardless of the reason, and who is needed as a witness in connection with the execution of a request in the Requesting State, shall be transported to that State, taking all the security measures needed..

7 provided that the person consents and if the Requested State has no reasonable basis to deny the request. 2. For the Purpose of this Article: a. The Requesting State shall be responsible for the safety and health of the person transferred and has the authority and the obligation to keep the person transferred in custody unless otherwise authorized by the Requested State; b. The Requesting State shall return the person transferred to the custody of the Requested State as son as circumstances permit or otherwise agreed. c. The person transferred shall receive credit for the service of the sentence imposed in the Requested State, for time served in the custody of the Requesting State. ARTICLE 10 TEMPORARY GUARANTEE 1. No Person required to provide testimony in the territory of the Requesting State for purposes of executing the request shall be subject to service of process or prosecution or suit or be detained or subjected to any restriction of their personal liberty, by reason of any acts committed before his departure from the Requested State. 2. The Guarantee provided for in this Article, unless it is a case of force majeur, shall expire within ten (10) days after notifying the requested person that he/she is free to leave, or if that person being free to leave the Requesting State does not leave or that having Ieft the Requesting State, has returned. ARTICLE 11 TÉRMS Every notification request with a deadline to execute the same, shall be submitted by the Requesting State to the Requested State no less than thirty (30) days in advance before the expiration of the deadline. In urgent cases, the Requested State might waiver this term to notify.

8 ARTICLE 12 EVIDENCE GATHERING 1. The Requested State in accordance with its internal law and at the request of the Requesting State may receive the affidavit of persons in the proceedings undertaken in the Requesting State, and request the delivery of the necessary evidence. 2. Interviews shall be made in writing, and the Required State after reviewing it, shall decide if it is admissible or not. 3. AII the panties involved in the process may be present during the interview. The process shall always be subjected to the laws of the Requested State. 4. The Requested State may provide any evidence found in its territory connected to any proceedings in the Requesting State, provided that the Central Authority of the Requesting State fills in an assistance request in accordance with the terms and conditions in this Treaty. ARTICLE 13 PUBLIC DOCUMENTS 1. The Requested State shall provide copies of publicly available documents from the archives of a governmental institution or from its justice department, provided it is permitted by its legislation. 2. The requested State may provide copies of records or information in the possession of a Government office or agency but not publicly available, to the same extent and under the same conditions as it would to its own law enforcement or judicial authorities. The Requested State may in its discretion deny the request entirely or in part. 3. Documents provided by virtue of this Article, shall be attested by the official in charge of the maintaining them and certified by the Central Authority, by means of a seal whose format is appended to this Treaty. No further certification shall be required. Documents attested under this paragraph shall be admissible evidence in proof of the truth of the matters set forth therein. ARTICLE 14 LOCATION AND IDENTITY OF PERSONS

9 The Requested State shall make its best effort to ascertain and locate the persons mentioned in the request and to communicate the Requesting State as son as possible the results of its enquiries. ARTICLE 15 SEARCH AND ARREST 1. A request for the search, seizure and delivery of any article to the requesting State shall be executed if it includes the information justifying such action under the laws of the Requested State. 2. Every official of the Requested State who has custody of seized articles shall certify the continuity of custody, the identity of the article and the integrity of its condition; the document shall be certified by the Central Authority through the use of the form appended to this Treaty. No further certification shall be required. The certificates shall be admissible in evidence in the Requesting State as Proof of the truth of the matters set forth herein. 3. The Requested State shall not be obliged to provide any item seized to the Requesting State, unless that state has agreed to such terms and conditions as may be required by the Requested State to protect third party interests in the item to be transferred. ARTICLE 16 RETURN OF DOCUMENTS AND ITEMS Any document, record, items or property given to the Requesting State, under the terms in this Treaty, shall be retuned to the Requested State as soon as possible, unless the latter clearly waivers this right. ARTICLE 17 ASSISTING IN FORFEITURE PROCEEDINGS 1. If the Central Authority of one of the Contracting States becomes aware of the fruits or instrumentalities of offences located in the other Contracting State, which may be forfeitable or otherwise subject to seizure under the laws of that State, in connection with serious offences, it shall inform the Central Authority of the other State regarding this fact. If the other State has jurisdiction in this regard, it shall present this information to the authorities for a determination whether this action is appropriate. These

10 authorities shall issue their decision in accordance with the laws in their country and shall, through their Central Authority, report to the other State on the action taken. 2. The Contracting States shall assist each other to the extent permitted by their respective laws and this Treaty in proceedings related to the forfeiture of the fruits and instrumentalities of offences, restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions. ARTICLE 18 COSTS 1. The requesting State shall assume and guarantee all previously agreed upon ordinary expenses required to present evidence from the Requested State in the Requesting State, including: a. Travel and incidental expenses of witnesses traveling to the Requesting State, including those of accompanying officials; b. Fees of experts; and c. Legal fees of the appointed attorney, prior the approval of the Requesting State, to advise witnesses. 2. The Requested State shall assume all ordinary expenses for executing a request within its boundaries, except the following costs, which shall be borne by the Requesting State: a. Fees of experts; b. Translation and transcription expenses; c. Travel and incidental expenses of persons traveling to the Requested State to attend the execution of the request. d. Reasonable costs of locating, reproducing, and transporting to the Central Authority of the Requesting State documents or records specified in the request; and e. If during the execution of the request it becomes apparent that expenses of an extraordinary nature are required to fulfill the request, the Parties shall consult to determine the terms and conditions under which the execution of the request may continue. These expenses shall be paid by.

11 the Requesting State. A reasonable amount, previously agreed upon, shall be placed at the disposal of the Central Authority of the Required State, as one step prior to comply with the proceedings that need expenses. ARTICLE 19 LIMITATIONS ON USE The Requesting State shall not use any information or evidence obtained under this Treaty, or any information derived from, for purposes other than those stated in the request without prior consent of the Requested State. ARTICLE 20 CONFIDENTIALITY Information or evidence furnished under this Treaty shall be kept confidential, except to the extent that the information or evidence is needed for investigations or proceedings forming part of the prosecution of a criminal offence described in the request or unless otherwise agreed by the Requesting State and the Requested State. ARTICLE 21 COMPATIBILITY WITH OTHER TREATIES AND INTERNAL LAWS The request for assistance and the procedures established in this Treaty shall not impede one Contracting State from providing assistance to the other, in accordance with the provisions in other International Agreements and the provisions of its internal laws. ARTICLE 22 RATIFICATION This Treaty shall be subject to ratification. The Ratification Instruments shall be deposited at the Secretary General of the Central American Integration System.

12 ARTICLE 23 ADHESION This Treaty shall remain open to the adhesion of any other. American State. Adhesion instruments shall be deposited at the Secretary General of the Central American Integration. ARTICLE 24 ENTRY INTO FORCE 1. This Treaty shall enter into force on the date of deposit of the fourth ratification or adhesion instrument. 2. For each state that ratifies or adheres to this Treaty after the deposit of the fourth ratification or adhesion instrument, the Treaty shall enter into force on the date that such State deposits its ratification or adhesion instrument. ARTICLE 25 DENUNCIATION Any of the Contracting States hereto may terminate this Treaty by means of written notice to the Depositary. Termination shall take effect 180 days following the date of notification. ARTICLE 26 DEPOSITARY The original version in the Spanish language shall be deposited at the Secretary General of the Central American Integration System that shall send a certified copy of the same to each Contracting State. ARTICLE 27 REGISTRY This Treaty shall be recorded at the United Nations Secretary, in accordance the provisions set forth in Article 102 of the UN Charter.

13 IN WITNESS WHEREOF, this Treaty is signed in the City of Guatemala, Republic of Guatemala on the twenty ninth day of October, nineteen ninety three. ANNEX For purposes of this Treaty, the seal used by the Central Authority of each Contracting State to certify the documents sent as a result of a required assistance request, shall be as follows:

14 TREATY FOR LEGAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS OF 1993 Central Authority Republic of Certifies that this document is authentic in the Republic of, Which is comprised of pages related to a: Date: October 10, En la sede de la del Sistema de la Integración Centroamericana, a las diecisiete horas del día seis de octubre de dos mil cinco. LAURA MARIA RIVERA PLATERO, Notario, del domicilio de San Salvador, El Salvador, RESUELVO: Concluidas las presentes Diligencias entréguese las mismas al interesado Erick Constantino Vílchez Ascher.