The Union of
Myanmar
The State Peace and Development Council
The Mutual Assistance in Criminal Matters Law
(The State Peace and Development Council Law No.
4/2004)
The 10th Waxing of Kason 1366 M.E.
(28th April, 2004 )
The
State Peace and Development Council hereby enacts the following Law:-
Chapter I
Title, Application and Definition
1.
This Law shall be called the Mutual Assistance in Criminal Matters Law.
2.
This Law shall apply to providing assistance in criminal proceedings with
States parties to an international convention or regional agreement to which
the Union of Myanmar is a State party or with the State that has entered into
bilateral agreement or with the State that will provide reciprocal assistance
though not a State party to the international convention or regional agreement
or bilateral agreement with respect to investigation, prosecution and judicial
proceedings in criminal matters.
3.
The following expressions contained in this Law shall have the meanings given
hereunder:
(a) Offence means the offence, punishable with
imprisonment for a term of one year and above under any existing law. The said
expression also includes offences punishable with imprisonment for a term of
one year and above under the law of any requesting foreign State;
(b) Assistance means providing assistance in
investigation, prosecution and judicial proceedings in respect of an offence
for the purpose of this Law;
(c) Investigation includes inquiry, search and
seizure of exhibits relating to the offence by a police officer or person
authorized by the Central Authority or the Judge;
(d) Performance of judicial proceedings includes
all activities of the judge under any existing law, with respect to an offence;
(e) Property means corporeal and incorporeal
property of every description, whether tangible or intangible, movable or
immovable. This expression also includes interests, rights and ownership in
respect of the property;
(f) Document means writing, mark, figure
alphabet or symbol upon any substance including information and record or any
mark or symbol that can be interpreted by any means or any object that can
interpret sound, image or writing spontaneously or a map, design, picture and
any similar object;
(g) Record means any data recorded or marked
upon any substance and which can be read or understood by any person personally
or by a computer system or by the use of any other device;
(h) Restraining Order means any order issued
with the intention of restraining property related to offence in the possession
of any person;
(i) Central Authority means the Central
Authority formed under this Law to provide mutual assistance in criminal
matters among States.
Chapter II
Aims
4.
The aims of this Law are as follows: —
(a) To enable rendering of assistance in criminal
matters in accordance with international conventions, regional agreements and
agreements among States;
(b) To enable liaison and communication with the
international organizations, regional organizations and foreign countries in
carrying out criminal matters;
(c) To enable laying down and carrying out appropriate
means and measures for providing assistance among States, in respect of
investigation, prosecution and judicial proceedings in criminal matters;
(d) To enable effective prevention and suppression of
other serious crimes including terrorism, financing of terrorism, transnational
organized crimes and crimes related to money laundering.
Chapter III
Forming the Central Authority and Duties and Powers
Thereof
5. The Government shall form the Central Authority for
rendering assistance among States in criminal matters, comprising the following
persons: —
(a) Minister, Ministry of Home Affairs Chairman
(b) Deputy Minister, Ministry of Home Affairs Vice
Chairman
(c) Deputy Minister, Ministry of Foreign Affairs
Member
(d) Deputy Minister, Ministry of Finance and Revenue
Member
(e) Deputy Minister, Ministry of Immigration and
Population Member
(f) Deputy Chief Justice Member
(g) Deputy Attorney General Member
(h) A Representative from the Ministry of Defence
Member
(i) Director General, General Administration
Department Member
(j) Director General, Myanmar Police Force Secretary
(k) Chief of Police General Staff Myanmar Police Force
Joint Secretary
6.
The functions and duties of the Central Authority are as follows:
(a) granting or refusing to provide assistance after
scrutiny of the request;
(b) giving opinion to the Government with respect to
entering into agreement between States on mutual assistance in criminal
matters;
(c) laying down necessary training programmes for
personnel from relevant departments and organizations for enhancement of skill
and technology in implementation of this law;
(d) liaising and coordinating, as may be necessary if
requested issue is also involved with another State;
(e) coordinating with the relevant government
departments, organizations and persons in respect of the requested issue;
(f) informing the relevant government department and
organization to carry out matters related to the request and handing over the
performances of the relevant government department and organization to the
Requesting State;
(g) Requesting and obtaining assistance from a foreign
State in criminal matters.
7. In implementing its duties and powers under Section
6, the Central Authority may, if necessary, assign duty to any member of the
Central Authority or a body headed by any member and comprising other suitable
persons.
8. The Chairman of the Central Authority or the
Secretary assigned by the Chairman has the right to perform the matters to be
carried out immediately out of the duties and powers of the said Authority, and
such performance shall be submitted to the Central Authority and approval
obtained therefrom.
9. The Government may,
if necessary amend, alter, suspend or cancel any performance made by the
Central Authority in respect of the assistance requested.
Chapter IV
Requesting Assistance and Refusal
10.
Any foreign State requesting assistance of Myanmar in criminal matters shall:
(a) if it is the State Party to the international
convention or regional agreement to which the Union of Myanmar is a State Party
or the State which has bilateral agreement with the Union of Myanmar request
assistance directly to the Central Authority;
(b) if it is the State Party to the international
convention or regional agreement to which the Union of Myanmar is not a State
Party or the State that has not entered into bilateral agreement with the Union
of Myanmar, request to the Central Authority through diplomatic channel.
11. Any foreign State may, in making a request under
section 10, with respect to investigation, prosecution and judicial proceedings
in criminal matters include and request the following matters
(a) Taking evidence or statement from any person;
(b) rendering service so that judicial documents shall
have effect;
(c) examining objects and sites;
(d) identifying or tracing money or property to be
used for evidentiary purpose to be relevant to the offence;
(e) executing searches, seizures, control, issuing
restraining order and confiscation of exhibit;
(f) obtaining information, documents to be used for
evidentiary purpose, records and expert opinion;
(g) providing originals or certified copies of
relevant documents and records to be used for evidentiary purpose;
(h) exposing the residential address of offender,
location of the exhibit and other necessary information;
(i) other matters in respect of which the Central
Authority has agreed to give assistance.
12. The requesting State shall, in making a request
mention the following facts in Myanmar language or English language
(a) name and designation of the authority making the
request
(b) statement setting out a summary and nature of the
case relevant to the request;
(c) necessary identity, address and nationality of the
person concerned;
(d) procedures for rendering assistance in matters for
obtaining evidence;
(e) period and limitation during which the request is
to be complied with;
(f) information to be exposed and evidence to be
obtained;
(g) statement to perform confidentially if the matter
is required to be performed confidentially;
(h) extract of relevant laws, rules and procedures
exercised in one’s own State in respect of the assistance of requested and
reasons thereof;
(i) name, function and responsibility of the person
conducting investigation, prosecution and judicial proceedings in one’s own
State;
(j) other necessary information.
13. The requesting State may, in urgent circumstance
make request orally by telephone facsimile, electronic mail or other electronic
means including computer network. In making such request the original letter of
request shall be sent to the Central Authority without delay.
14. The Central Authority may -
(a) on receiving the request of any foreign State,
request after scrutiny, necessary additional information and supporting
evidence for the execution in conformity with the existing laws.
(b) meet with the person or body of persons assigned
by the authority of the requesting State and make inquiry and request
supporting evidences.
15. If the Central Authority, on receiving the request
and on finding that the request is in conformity with the following facts may
grant the request:
(a) the offence relating to the request being an
offence covered by sub-section (a) of section 3;
(b) having no infringement with any fact that is
ground for refusal contained in section 18;
(c) the request being in conformity with the forms
terms and means and ways prescribed by the Central Authority;
(d) upon the expenses incurred by the Union of Myanmar
for rendering assistance having been corordinated and agreed between the two
countries.
16. In respect of mutual assistance in criminal
matters, if the Central Authority is desirous of granting the request to the
State which is neither the State Party to the Convention or regional agreement
nor has bilateral agreement, it may do so on condition that such requesting
State has already agreed to grant the request of the Union of Myanmar on
reciprocal basis.
17. In respect of a request of any foreign State, if
the Central Authority is of the opinion that, it interferes with an ongoing
investigation, prosecution or proceeding in the Union of Myanmar it may
postpone the request in whole or in part in consultation with the requesting
State.
18. The Central Authority shall not refuse the request
of any foreign State on the ground of it being a bank and financial
institutions secrecy. Provided that if it is found on scrutiny that it
infringes one of the following facts the request may be refused in whole or in
part:
(a) not being in conformity with the stipulations of
this Law;
(b) encroaching on the sovereignty of the State, its
security prevalence of law and order or public interests;
(c) there being cause to believe that the race, sex,
religion, nationality, ethnic origin, political opinion or personal stand of
any individual is encroached;
(d) there being a prohibition of conducting
investigation, prosecution and judicial proceedings of an offence similar to
the offence requested, under the existing law of the Union of Myanmar;
(e) being an offence of military nature actionable
under the Defence Services Act, 1959;
(f) the subject matter relating to the request being
contrary to the laws of Myanmar;
(g) being a request incidental to matters reserved in
the international convention to which Union of Myanmar is a State Party.
19. The Central Authority shall, on refusing the
request of any foreign State reply to the requesting State giving reasons for
so refusing.
20. (a) The Central Authority shall, on deciding to
grant the request of any foreign State assign duty to the relevant government
department and organization to execute in conformity with the stipulations.
(b) The government department or organization assigned
duty under sub-section (a) shall, for enabling the reply to the Requesting
State, submit to the Central Authority urgently the condition of completion or
the condition of being unable to perform, giving complete reasons.
21. The Central Authority, on receiving the submission
made by the relevant government department and organization under sub-section
(b) of section 20 shall:
(a) if no performance
can be made with respect to the request, inform the Requesting State giving reasons
therefor;
(b) if performance can be made with respect to the
request, carry out for enabling the handing over of the relevant information,
testimony, documents, records and supporting evidences to the Requesting State
within the stipulated time.
22.
The Central Authority shall
(a) if there are matters that are to be kept
confidential among the information and evidences to be sent by one’s own State
with respect to matters that are given assistance or matters that are sought
assistance by the Union of Myanmar, inform the Requesting State to keep the
same confidential;
(b) if there is no intention of handing over document,
record and properties in their entirety to the Requesting State, mention to
return the same without delay to the Union of Myanmar after completing
performance of request.
23. The Central Authority shall, if it is required to
conduct joint investigation between two or more States with respect to request
or giving assistance, obtain prior agreement of the competent authority of the
relevant foreign State on each issue of the matter through coordination.
24. The Central Authority and the relevant Government
departments and organizations shall not, with respect to information,
testimony, document, records and supporting evidences handed over by the
requested State to the Union of Myanmar use, handover or expose without
agreement between the two states in relation to matters not mentioned in the
request.
Chapter V
Search, Seizure, Control, Issuing Restraining Order
and Confiscation of Exhibits
25. With respect to request of any foreign State the
Central Authority shall, if granted after scrutiny the request of a foreign
State to search, seize, control, issue restraining order or confiscate the
exhibit is granted instruct the relevant government department and organization
to search, seize, control, issue restraining order and confiscate in conformity
with the existing laws.
26. (a) The Central Authority shall administer the
property seized as exhibits, property controlled and property confiscated under
the request of a foreign State in conformity with the bilateral agreement.
(b) If there exists no bilateral agreement between the
two States, the confiscated property shall vest in the State.
27. If a person who is not involved in the offence can
proved that he has in good faith and after giving consideration taken over and
has in possession the property that has been seized as exhibit or has been
confiscated, the right of such person shall not be affected.
Chapter VI
Sending a Person who is in Myanmar to Give Testimony
and Statement
28.
The Central Authority shall
(a) with respect to a request made to send a person
who is in Myanmar to give testimony, statement or expert opinion in a foreign
State, if the said person has agreed to testify,’ and the Central Authority has
also decided to grant permission, inform the relevant government department and
organization to make arrangements for travel and right to go abroad of the said
person permitted to be sent;
(b) if the person
permitted to be sent is a person in custody inform the relevant government
department and organization to make arrangements to transfer and transport him
safely in custody and to transport him back under the bilateral agreement.
29. (a) The Central Authority shall, in sending the
person in custody, if Union of Myanmar has not sent a letter informing that the
said person is to be released from custody, mention to keep him in custody till
the time of transporting him back to Union of Myanmar after completion of
requested matter.
(b) The duration of time in which the person sent in
custody is in the Requested State including the duration of time of transporting
him in custody shall be deemed as if it were the duration of time in custody in
the Union of Myanmar.
30. If the person who is to give testimony, statement
or expert opinion is prohibited from giving testimony, statement or expert
opinion under the existing Law of Myanmar, he may refuse for the said matter.
31. The Central Authority shall, if the person who is
to give testimony, statement or expert opinion in any foreign State has
committed any offence previously in the Requested State, within 15 days or if
it exceeds 15 days from the date of arrival at the said State and making report
thereof, raise the issue to get prior agreement with the said State so as not
to prosecute, detain, punish or restrict personal liberty in the said State
with respect to the previous offence, during the period agreed upon by the two
States.
32. The Central Authority shall, if the request of a
foreign State to transfer a person in custody in transit from the Union of
Myanmar or passing through the Union of Myanmar to provide assistance is
granted, inform the relevant government department and organization to give
assistance for the security of such person in custody, within the territory of
Myanmar.
Chapter VII
Request by the Union of Myanmar
33. The government department and organization
desirous of requesting assistance from any foreign State with respect to
matters contained in section 11 shall, to obtain permission for the assistance
desired, submit to the Central Authority mentioning completely the points
contained in section 12.
34. If the Central Authority, grants permission under
Section 33 on the submission of the relevant government department and
organization to request assistance from any foreign State shall:
(a) if it is the State Party to the international
convention or regional agreement to which the Union of Myanmar is a State Party
or the State which has bilateral agreement with the Union of Myanmar, request
assistance directly from the Central Authority of the said State;
(b) if it is the State Party to the international
convention or regional agreement to which the Union of Myanmar is not a State
Party or the State that has not entered into bilateral agreement with the Union
of Myanmar, request the Central Authority of the said State through diplomatic
channel.
35. The relevant government department and
organization shall not prosecute, detain, punish or restrict personal liberty
of a person sent by a foreign State with respect to any offence committed by
him previously in the Union of Myanmar within 15 days or if it exceeds 15 days
from the date of arrival and making report thereof, during the period agreed
upon between the two States while he is in the Union of Myanmar to give
testimony, statement, expert opinion or in person, in accordance with this Law.
36. The government
department and organization that performs under the direction of the Central
Authority shall, if the relevant foreign State does not send a letter informing
to release the person in custody who has been transferred to give testimony or
statement in Myanmar, have the authority to put him in custody during the time
agreed upon between the two States and, after submitting to the Central
Authority, carry out in accordance with the direction of the Central Authority,
for enabling to transport him back to the Requesting State without delay, in
conformity with the stipulations after completion of the said matter.
Chapter VIII
Bearing of Costs
37. In carrying out the tasks on requested matters, if
there exists no specific agreement between the two States, the ordinary costs
shall be borne by the requested State. The costs exceeding the ordinary costs
or costs of extraordinary nature shall be borne by the relevant State in
accordance with the terms and conditions agreed upon in advance.
38. If the cost of requesting assistance or providing
assistance by the Union of Myanmar is to be borne by the Union of Myanmar, it
shall be borne by the relevant government department or organization with the
approval of the Government.
Chapter IX
Miscellaneous
39. (a) The Central Authority shall, if the requested
matter of the foreign State is for judicial proceedings, inform to the Supreme
Court.
(b) The Supreme Court may carry out the matter
informed under sub- section (a) by itself or delegate to the relevant competent
Court.
40. The Central Authority, with respect to testimony,
documents, records and supporting evidences which are performed under the
request of any foreign State:
(a) may determine and assign duty to any relevant
government department and organization or any expert or a body of experts to
submit the same after translation;
(b) shall, after authenticating on the translation,
hand it over to the relevant foreign State.
41. With respect to mutual assistance in criminal
matters, the communications made by telephone, fax or e-mail, or any other
electronic means including communications made through computer network shall
be entitled to be submitted as evidence.
42. With respect to any offence for which assistance
is requested by any foreign State, if there is no explicit provision in this
Law, regarding investigation, prosecution and judicial proceedings, the Central
Authority and the government department and organization assigned duty by such
body shall, comply with the provisions of the existing Law.
43.
In implementing the provisions of this Law:
(a) The Ministry of Home Affairs may, with the
approval of the Government, issue such rules and procedures as may be
necessary;
(b) The Central Authority, relevant Ministry, the
Supreme Court and the Office of the Attorney General may with the approval of
the government; issue such notifications, orders and directives as may be
necessary.
(Sd.) Than
Shwe
Senior General
Chairman
The State Peace and Development Council
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