Tuesday, July 27, 2010

Treaty on Mutual Assistance in Criminal Matters

India seems to have conclued this Treaty with many countries. The base legalese of the Treaty can be understood from the India-Australia treaty. Linky

Once in force, the Treaty will create an obligation under international law for Australia and the Republic of India to provide each other with mutual legal assistance in criminal matters including search and seizure, service of documents, taking of evidence, arranging for witnesses to give evidence or assist in investigations, and assistance with the location, restraint and forfeiture of instruments and proceeds of crime.

The Treaty provides the framework within which Australia and the Republic of India will provide assistance to each other, including which authorities will make and receive requests, the information which will be required to support a request for assistance, the grounds on which a request for assistance could be refused, how requests for particular types of assistance will be managed, costs and other matters relating to mutual assistance and the operation of the Treaty.

As in all of Australia’s mutual assistance in criminal matters treaties, the Treaty includes internationally accepted safeguards, including that assistance will not be granted where a request relates to the prosecution of a person for a military offence which is not also an offence under the general criminal law. The requested country will also have the discretion to refuse a request on the grounds specified in Articles 5(2) and 5(3). For example, a request may be refused if it relates to the prosecution of a person for an offence in respect of which the person has been tried and finally dealt with or pardoned. A request may also be refused if there are substantial grounds to believe that it has been made for the purpose of prosecuting a person on account of his or her race, sex, religion, nationality or political opinion, or that person’s position may be prejudiced for any of those reasons.

The Treaty would enable Australia to refuse assistance in death penalty matters. Article 5(3)(d) provides that a request may be refused where it relates to the prosecution of a person for an offence in respect of which the punishment which might be imposed on the person may prevent the requested country from complying under its domestic laws. Subsection 8(1A) of the Act obliges the refusal of assistance if a person is charged with, or convicted of, an offence that carries the death penalty unless special circumstances exists. Subsection 8(1B) provides that the Attorney-General may refuse assistance if he or she believes that the provision of assistance may result in the death penalty being imposed. Accordingly, the Treaty would enable Australia to refuse a request if compliance with that request would be in contravention of its legislation in relation to the death penalty.

Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters. The legislative instrument does not have a direct, or substantial indirect, effect on business and does not restrict competition. The Treaty was the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 110, tabled on 15 March 2010. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on the day the Treaty enters into force for Australia.
In accordance with Article 23 of the Treaty, the two countries must inform each other in writing of the completion of domestic implementation. The Treaty will enter into force thirty days after the date of the latter communication.

Comment: If one reads between the lines, India will pay Burma for the costs accrued in maintaining security in the border areas of Nagaland, Manipur and Arunachal. This may force Burma's "helpless" hand in not going after the NSCN (K), ULFA and NDFB. With the squeeze applied in three B-directions: BD, Burma and Bhutan, hopefully some new surrenders could happen. Or folks could just randomly appear at the Dawki border overnight just being fed up of running from the long arm of the law.

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