rijk/verdrag/verdrag-tussen-het-koninkrijk-der-nederlanden-en-de-verenigde-arabische-emiraten/BWBV0006928

titel	bwb_id	type	status	datum_inwerkingtreding	bron	citeertitel
Verdrag tussen het Koninkrijk der Nederlanden en de Verenigde Arabische Emiraten inzake wederzijdse rechtshulp in strafzaken	BWBV0006928	verdrag	geldend	2023-08-01	https://wetten.overheid.nl/BWBV0006928	Verdrag tussen het Koninkrijk der Nederlanden en de Verenigde Arabische Emiraten inzake wederzijdse rechtshulp in strafzaken

Verdrag tussen het Koninkrijk der Nederlanden en de Verenigde Arabische Emiraten inzake wederzijdse rechtshulp in strafzaken

Hoofdstuk I. GENERAL PROVISIONS

Artikel 1

1. The Parties undertake to afford each other, in accordance with the provisions of this Agreement, the widest measure of mutual legal assistance in criminal investigations, prosecutions or proceedings in criminal matters.

2. Mutual legal assistance is any assistance provided by the Requested Party to the Requesting Party for any criminal proceeding, irrespective whether the assistance is to be provided by a court or by any other judicial authority competent for the investigation or prosecution in criminal matters.

3.

Mutual legal assistance shall include:

a) a) taking evidence or statements from persons; b) b) effecting service of judicial documents; c) c) facilitating the voluntary appearance of persons, either in custody or otherwise, to give evidence or assist in criminal investigations, prosecutions or proceedings in the Requesting Party; d) d) providing information, evidentiary items and expert reports; e) e) examining objects and sites; f) f) providing originals or certified copies of relevant documents and records, including from the government, banks, financial institutions and businesses; g) g) executing requests for search, seizure or freezing; h) h) identifying or tracing proceeds and/or instrumentalities of crime, property or other objects for evidentiary and confiscation purposes; i) i) locating or identifying persons or items; j) j) any other assistance deemed necessary by the Requesting Party and consistent with this Agreement as well as with the national law of the Requested Party.

4. This Agreement applies solely to the provision of mutual legal assistance between the Parties. It shall not create any right on the part of any private or legal person, to obtain, suppress or exclude any evidence or to impede execution of any request of assistance.

Artikel 2

The Parties may exchange information concerning the national laws in force and the judicial practice in their respective countries related to the implementation of this Agreement.

Artikel 3

1.

This Agreement shall not apply to:

a. a. the arrest or detention of any person with a view to the extradition of that person; b. b. the enforcement in the Requested Party of criminal judgments imposed in the Requesting Party except to the extent permitted by the national law of the Requested Party; c. c. the transfer of persons in custody to serve sentences; and d. d. the transfer of proceedings in criminal matters.

2. Nothing in this Agreement entitles any Party to undertake in the territory of the other Party the exercise of jurisdiction or the performance of functions that are reserved exclusively for the authorities of that other Party by its national law.

Artikel 4

1. The Central Authorities of the Parties shall process requests for mutual legal assistance pursuant to this Agreement.

2.

The Central Authority for the United Arab Emirates is the Ministry of Justice.

The Central Authority for the Kingdom of the Netherlands is:

– – for the Netherlands: the Ministry of Justice and Security of the Netherlands; – – for Aruba: the Ministry of Justice of Aruba; – – for Curaçao: the Ministry of Justice of Curaçao; – – for Sint Maarten: the Ministry of Justice of Sint Maarten.

3. The Parties shall notify each other in writing through diplomatic channels of any change in the authority that is designated as Central Authority.

Artikel 5

1.

Assistance shall be refused if:

a) a) the request relates to an offence that is regarded by the Requested Party as a political offence. The following offences shall not be considered as political offences:

        –
        for the United Arab Emirates; assault against the President of the State or his Deputy, the Head of Government, or any member of their families, or any Member of the Supreme Council or any member of their families;
      
      
        –
        for the Kingdom of the Netherlands: assault against the King, or any member of his family;
      
      
        –
        terrorist offences, terrorist financing offences or any other offence not considered as a political offence under any international treaty to which both Parties are a party;

– – for the United Arab Emirates; assault against the President of the State or his Deputy, the Head of Government, or any member of their families, or any Member of the Supreme Council or any member of their families; – – for the Kingdom of the Netherlands: assault against the King, or any member of his family; – – terrorist offences, terrorist financing offences or any other offence not considered as a political offence under any international treaty to which both Parties are a party; b) b) the request relates to an offence under military law; c) c) there are substantial grounds for believing that the request for assistance has been made for the purpose of investigating, prosecuting or punishing a person on account of that person’s race, sex, religion, nationality or political opinions, or that the request for assistance will result in that person being prejudiced for any of those reasons; d) d) the provision of the assistance would impair the sovereignty, security, public order or other essential interests of the state of the Requested Party.

2.

Assistance may be refused if:

a) a) the act or omission alleged to constitute the offence to which the request relates, would not, if it had taken place within the jurisdiction of the Requested Party, have constituted an offence; b) b) the request relates to an offence which is subject to investigation, prosecution or proceeding in the Requested Party under its own jurisdiction; c) c) the execution of the request would be contrary to the principle of ne bis in idem.

3.

Assistance shall not be refused:

a) a) solely on the ground of secrecy of banks and institutions providing financial services; or b) b) where the request relates to criminal offences involving duties, taxes or customs, on the grounds that the evasion of duties, taxes or customs is not a criminal offence in the Requested Party or on the grounds that no equivalent duties, taxes or customs are imposed there.

4. Before refusing a request for assistance the Central Authority of the Requested Party shall consult with the Central Authority of the Requesting Party whether assistance may be provided subject to a guarantee that the death penalty or corporal punishment will not be imposed and if imposed, will not be carried out, or such other guarantees and conditions as the competent authority concerned deems necessary.

5. If the Requested Party refuses assistance, it shall promptly inform the Requesting Party thereof as well as the reasons for the refusal.

Artikel 6

1. The Requested Party shall guarantee the confidentiality of the facts and the substance of the request, except to the extent necessary to execute the request. If the Requested Party cannot comply with the requirement of confidentiality, it shall notify the Requesting Party. If duly notified, the Requesting Party may decide either to maintain or to withdraw the request.

2. Each Party shall take the necessary measures to ensure that any entity whose co-operation is necessary for executing a request, does not disclose to anyone that information has been transmitted to the Requesting Party pursuant to this Agreement or that an investigation is being carried out.

3. The Requesting Party shall use information or evidence, obtained under this Agreement, for the investigation, prosecution and proceedings to which the request relates and in accordance with conditions that have been imposed in a particular case on the use of such information or materials. The Requesting Party shall not use the information or evidence obtained for purposes other than those stated in the request without the prior consent of the Requested Party.

Artikel 7

1. For the purpose of this Article data shall mean: all information relating to an identified or identifiable natural person.

2. The Parties shall ensure that the data transferred from one Party to another shall be used only for the purpose of executing a request, pursuant to this Agreement. No data shall be used for any other purpose, or transferred to any third country without prior approval of the Party which transferred the data.

3. The Parties shall ensure the accuracy of personal data transferred pursuant to this Agreement and they shall ensure that appropriate measures shall be taken in order to protect the transmitted data against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.

4. The Parties shall consult each other on the desired time limits for storage, the necessity of any prolonged storage needed, as well as the need to rectify inaccurate, incomplete or unreliable data or the desire or need to erase data or to restrict the use of data.

5. To the extent regulated by the national law of the Parties, the data subject may be provided with information on the categories of data transferred and the purpose of the data transfer. The Party concerned may not inform the data subject if this is necessary to avoid obstructing official or legal enquiries, criminal or administrative investigations, prosecutions or the execution of criminal penalties, to protect public security, to protect national security, or to protect the rights and freedoms of others.

6. Parties shall consult each other if a judicial competent authority, pursuant to national law, makes any determination on the admissibility of the transfer of any data from one Party to another, pursuant to this Agreement.

Artikel 8

1.

The Requested Party shall bear the costs of executing the request for assistance, except that the Requesting Party shall bear:

a) a) the expenses associated with the transfer of a person in custody to or from the territory of the Requested Party, including expenses for the required work of accompanying personnel, as well as compensation or costs to be paid to the person transferred in connection with the execution of the request; b) b) the allowances and the travel expenses for witnesses and experts who travel upon summons to the Requesting Party.

2. If it becomes apparent that the execution of the request requires expenses of an extraordinary nature, the Central Authorities shall consult to determine the terms and conditions under which the requested assistance can be provided.

Hoofdstuk II. SPECIFIC TYPES OF ASSISTANCE

Artikel 9

1. The Requested Party shall, in accordance with its national law, carry out requests for the service of documents in respect of a criminal matter.

2. A request for service of summons requiring the appearance of persons, including witnesses, victims, accused persons, defendants in criminal proceedings and experts, in the Requesting Party shall be made to the Requested Party within a reasonable time before the scheduled appearance.

3. The Requested Party, after having effected service, shall provide the Requesting Party with an attestation of proof of service bearing the signature or stamp of the authority that effected service, and indicating the date, time, place and modalities of delivery, as well as the person to which the documents have been delivered. If service is not effected, the Requested State shall inform the Requesting State promptly and communicate the reasons of failure to serve.

Artikel 10

1. The Requesting Party may request the assistance of the Requested Party in inviting a person, not being a person to whom Article 13 of this Agreement applies, to give evidence or provide assistance in the Requesting Party. The Requesting Party shall undertake to make satisfactory arrangements for the safety of such a person.

2. The Requested Party shall invite the person and promptly inform the Requesting Party of the person’s response. If the person consents, the Requested Party shall take all necessary steps to facilitate the request. If the person does not consent he or she shall not by reason thereof be liable to any penalty or coercive measure pursuant to the national law of the Requesting Party or the Requested Party.

Artikel 11

1. The Requested Party, in compliance with its national law, shall take statements from witnesses, victims, suspects and defendants, experts or other persons, and shall also obtain records, documents and any other evidence indicated in the request for legal assistance, and shall transmit them to the Requesting Party.

2. A person from whom evidence is to be taken in the Requested Party pursuant to a request under this Article may decline to give evidence or statements where the national law of the Requested Party or that of the Requesting Party so provides.

3. If any person in the Requested Party claims that there is a right or obligation to decline to give evidence under the national law of the Requesting Party, the Requesting Party shall, upon request, provide a statement to the Requested Party as to the existence of that right. In the absence of evidence to the contrary, the statement shall be sufficient evidence of the matters stated in it.

4. For the purposes of this Article, the taking of evidence includes the production of documents or other material.

5. In accordance with the national law of the Requested Party, officials of the Requesting Party and other persons concerned with the proceedings in the Requesting Party may be permitted to be present when evidence is taken in the territory of the Requested Party and to participate in the taking of such evidence in a manner that may be specified by the Requested Party. The persons present at the execution of a request may be permitted to propose such questions to the authorities of the Requested Party as permitted under the national law of the Requesting Party.

Artikel 12

1. When videoconference is not possible or not considered appropriate, a person in custody in the Requested Party may, at the request of the Requesting Party, be temporarily transferred to the territory of that Party to give evidence or to assist in criminal proceedings in that Party.

2.

The Requested Party shall transfer a person in custody to the Requesting Party only if:

a) a) the person freely consents to the transfer; b) b) the Requesting Party agrees to comply with any conditions specified by the Requested Party relating to the custody or security of the person to be transferred; c) c) it does not interfere with investigations or criminal prosecutions that are being carried out in the Requested Party, in which said person has to take part.

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 released and be treated as a person present in the Requesting Party pursuant to a request seeking that person’s attendance.

4. The Requesting Party shall return the person transferred in custody to the Requested Party within thirty (30) days, from the date of the person’s presence in the Requesting Party, or any other period of time as may be agreed upon by the Parties.

5. A person in custody who is transferred shall receive credit for service of the sentence imposed in the Requested Party for the time spent in custody in the Requesting Party.

6. A person in custody who does not give consent as referred to in Paragraph 2(a) of this Article shall not by reason thereof be liable to any penalty or coercive measure pursuant to the national law of the Requesting Party or the Requested Party.

Artikel 13

1. Without prejudice to the provisions of Article 10, 11 and 12 of this Agreement, a person, appearing before the judicial authorities of the Requesting Party to give evidence or to assist otherwise in an investigation or a person transferred for that purpose, shall not be prosecuted, detained, punished or subjected to any other restriction of personal liberty in the Requesting Party for any acts or omissions which preceded that person's departure from the Requested Party.

2. A person referred to in Paragraph 1 of this Article shall not be subjected to civil proceedings which the person could not be subjected if he or she were not in the territory of the Requesting Party.

3. A person referred to in Paragraph 1 of this Article shall not be obliged to provide support in criminal proceedings other than those to which the request relates.

4. The protection provided for in Paragraphs 1, 2 and 3 of this Article shall cease to apply if a person, being free to leave the territory of the Requesting Party, has not left within thirty (30) days after receiving official notification that the person's attendance is no longer required or, having left, has voluntarily returned. This period of time shall not include any time during which the person is unable to leave the territory of the Requesting Party for reasons beyond his or her control.

5. A person who consents to give evidence pursuant to Article 10 or 12 of this Agreement shall not be subject to prosecution based on his or her testimony as a witness or as an expert, except for perjury or contempt of court.

Artikel 14

1. A Party may, subject to its national law, authorize the transit through its territory of a person in custody whose appearance has been requested by the other Party requesting for such transit.

2. The Requested Party may, subject to its national law, agree to such a transit and shall have the authority and obligation to make the necessary arrangements for keeping the person in custody during transit.

3. However, a Party may refuse to agree to the transfer of its nationals.

Artikel 15

1. The Requested Party shall, to the extent permitted by its national law, execute a request for search, freezing and seizure of documents, materials and items, for the purpose of obtaining evidence.

2. The Requested Party shall provide such information as may be required by the Requesting Party concerning the result of any search, the place and circumstances of seizure, and the subsequent custody of the material seized.

3. The Requested Party shall transmit the seized documents or copies thereof, materials and items in a form which may be required, to the Requesting Party unless otherwise agreed with the Central Authority of the Requesting Party. Such transmission of original documents, materials and items shall not affect the legitimate rights of third parties.

4. Upon request of the Requested Party, the Requesting Party shall return original documents, materials and items provided under this Article when they are no longer needed for the criminal investigation, prosecution or proceeding to which the request relates, unless the Parties agree otherwise.

Artikel 16

1. Where it is in the interest of efficient co-operation the person to be heard as a witness or as an expert by the judicial authorities, pursuant to Article 11 of this Agreement, the Requesting Party may request that the hearing takes place by means of videoconference, provided it is not contrary to the national law of the Requested Party.

2. For the purpose of this Agreement, the Parties may agree on the use of live video or all live television links or other appropriate communication facilities in accordance with the national laws and procedures of both Parties if it is expedient and in the interests of justice.

Artikel 17

1.

For the purpose of this Agreement:

a) a)

      *proceeds of crime* shall mean: any economic advantage derived from or obtained, directly or indirectly, from criminal offences, which may consist of any property of any description whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing a title to or interest in such property;

b) b)

      *instrumentalities of crime* shall mean: any property, including a bank account, used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences.

2. The Requested Party shall, upon request, endeavour to ascertain whether any proceeds and/or instrumentalities of crimes are located within its jurisdiction. The Requesting Party shall notify the Requested Party of the basis of its beliefs that such proceeds and/or instrumentalities of crime may be located in the latter’s jurisdiction.

3. The Requested Party shall notify the Requesting Party of the results of its inquiries. The Requested party shall provide the particulars of one or more bank accounts specified in the request and/or any transactions performed with the account.

4. Where, pursuant to Paragraph 3 of this Article, suspected proceeds and/or instrumentalities of crimes are found, the Requested Party shall take such measures as are permitted by its national law to prevent any dealing in, transfer or disposal of, those suspected proceeds and/or instrumentalities of crimes, pending a final determination in respect of those proceeds by a court of the Requesting Party.

5. The Requested Party shall, to the extent its national law permits, give effect to a final order forfeiting or confiscating the proceeds and/or instrumentalities of crimes made by a court of the Requesting Party.

6. In the application of this Article, the rights of any bona fide third party shall be respected under the national law of the Requested Party. Where there is a claim from a third party, the Requested Party shall represent the interests of the Requesting Party in seeking to retain the proceeds and/or instrumentalities of crimes until a final determination by a competent court in the Requesting Party.

7. The Requested Party shall return the proceeds and/or instrumentalities of crimes referred to in Paragraph 3 of this Article, or the value of the proceeds and/or instrumentalities, to the Requesting Party, to the extent permitted by its national laws and upon such terms as it deems appropriate.

Hoofdstuk III. PROCEDURAL PROVISIONS

Artikel 18

1. Requests for mutual assistance shall be in writing. The request shall be in the official language of the Requesting Party, accompanied by a translation in the official language of the Requested Party or in the English language.

2. Requests for assistance for the purposes of this Agreement shall be sent through diplomatic channels. The Central Authorities may communicate directly after the request has been formally transmitted. Each of the Central Authorities may designate a judicial competent authority which may communicate directly, either with the Central Authority of the other Party, or with a judicial competent authority of the other Party on the execution of a request.

3. In urgent circumstances, the Central Authority of the Requested Party may accept the request by facsimile, e-mail or by any other means capable of producing a written record, in which case it shall be confirmed within thirty (30) days by a formal request through diplomatic channels.

4.

Requests for assistance shall include the following:

a) a) the name of the authority making the request; b) b) the name of the authority conducting the investigation, prosecution or proceedings to which the request relates; c) c) the subject matter and nature of the investigation, prosecution or proceedings to which the request relates, including a summary of the case and its current status, except in relation to requests for the purpose of the service of judicial documents; d) d) a description of the assistance sought and details of any particular procedure that the Requesting Party wishes to be followed; e) e) the purpose for which the evidence, information or assistance is sought; f) f) the texts of the statutory provisions to which the case relates, including the maximum penalty of the offences and any limitation periods; g) g) the specification of any time limit within which compliance with the request is desired; h) h) any special requirement for confidentiality and the reasons for it.

5.

Requests for assistance shall also, to the extent necessary and if available include:

a) a) in cases of requests to take evidence from any person: the identity, date of birth, and location of any person from whom evidence is sought, as well as the subject matter on which the person is to be examined, including a list of questions and details of any right of that person to decline to give evidence; if the Requesting Party wishes that witnesses or experts give evidence in the presence of a judicial competent authority or any other person, such request shall be made expressly; b) b) in cases of requests to serve documents: the identity, date of birth and location of any person to be served, that person’s relationship to the investigation, prosecution or proceedings, and, the manner in which the service is to be made; c) c) in cases of requests to locate or identify persons: information on the identifying persons, information on the identity and whereabouts of a person to be located or identified; d) d) in cases of requests to inspect or examine objects: a description of the place or location to be inspected or examined; e) e) in cases of requests to produce evidence: a description of the documents, records or items of evidence to be produced, an indication of the person asked to produce them and the form in which they should be produced and authenticated; f) f) in cases of requests to make a detained person available: the place to which the detained person is to be transferred and the proposed date of that person’s return; g) g) information as to the allowances and expenses which may be reimbursed to the person who is requested to appear in the Requesting Party for the purpose of taking evidence.

Artikel 19

If the Requested Party considers that the information contained in the request is not sufficient to enable the request to be executed with, the Requested Party may request additional information. The Requesting Party shall supply such additional information as the Requested Party considers necessary to enable the request to be executed.

Artikel 20

1. Requests for assistance shall be executed promptly by the competent authorities of the Requested Party in accordance with the national law of that Party and, to the extent that national law permits, in the manner requested by the Requesting Party.

2. Provided it is not contrary to its national law, the Requested Party may authorize the persons specified in the request for legal assistance to be present at the execution of the request. To this end, the Requested Party shall promptly inform the Requesting Party of the date and place of execution of the request for assistance. The persons who have been authorized may request the competent authority of the Requested Party to consider the possibility to submit specific questions referred to the assistance procedures.

3. The Requested Party shall promptly inform the Requesting Party of circumstances, when they become known to the Requested Party, which are likely to cause a significant delay in the execution of the request.

4. The Requested Party may postpone the execution of the request if its immediate execution would interfere with any ongoing criminal investigations or related proceedings in the Requested Party. The Requested Party may also postpone the delivery of documents if such documents are required for civil proceedings in that Party, in which case the Requested Party shall, upon request, provide certified copies of those documents.

5. Before postponing the execution of a request, the Requested Party shall consider whether assistance may be granted subject to certain conditions.

6. If the Requested Party postpones assistance, it shall promptly inform the Requesting Party of the grounds of postponement and an indication, if possible, of the duration of such postponement.

Hoofdstuk IV. FINAL PROVISIONS

Artikel 21

This Agreement shall not affect any existing obligations of the Parties in other agreements, nor prevent the Parties from providing assistance to each other pursuant to other agreements or arrangements.

Artikel 22

With regard to the Kingdom of the Netherlands, this Agreement shall apply to the European part of the Netherlands, the Caribbean part of the Netherlands (the islands of Bonaire, Sint Eustatius and Saba), Aruba, Curaçao and Sint Maarten, unless the notification referred to in Article 24 of this Agreement provides otherwise. In the latter case, the Kingdom of the Netherlands may extend the application of this Agreement at any time to one or more of its constituent parts by notification to the United Arab Emirates through diplomatic channels.

Artikel 23

The Parties shall convene whenever they deem it necessary, in order to discuss the application of this Agreement and they may also convene meetings with the competent authorities of the Parties with a view to facilitate the application of this Agreement, in particular with respect to such issues as training, the preparation and use of standard formats, the preparation and execution of specific types of requests or of specific individual requests.

Artikel 24

1. This Agreement shall enter into force on the first day of the first month after the date of receipt of the final notification in which the Parties inform each other, through diplomatic channels, that they have fulfilled the requirements of their national legislation.

2. This Agreement may be amended by mutual consent of the Parties and the amendment shall enter into force in accordance with Paragraph 1 of this Article.

3. Either Party may terminate this Agreement by notice in writing through diplomatic channels at any time. Termination shall take effect six (6) months after the date on which the notice is given. However, proceedings already commenced before the notice of termination shall continue to be governed by this Agreement until fully concluded.

4. Subject to Paragraph 3 of this Article, the Kingdom of the Netherlands shall be entitled to terminate the application of this Agreement separately in respect of any of the constituent parts of the Kingdom of the Netherlands.

5. This Agreement shall apply to any request submitted after its entry into force, even if the relevant offences were committed before its entry into force.