Treaty on Mutual Legal Assistance in Criminal Matters between the Socialist Republic of Vietnam and the Kingdom of Spain 2015

TREATY

ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE SOCIALIST REPUBLIC OF VIET NAM AND THE KINGDOM OF SPAIN

The Socialist Republic of Viet Nam and the Kingdom of Spain (hereinafter referred to as “the Parties”);

Desiring to maintain and strengthen the links that unite both countries;

Wishing to establish a more effective collaboration between the two Parties in the prevention, the investigation, the prosecution and the trial of criminal offences, particularly in the fight against organised crime and terrorism;

Desiring to improve coordination and reciprocal assistance in criminal matters between the two Parties, pursuant to the domestic laws and regulations thereof;

Have agreed as follows:

PART I

GENERAL PROVISIONS

ARTICLE 1

SCOPE OF APPLICATION

1. The purpose of this Treaty is to regulate mutual legal assistance between the competent authorities of both Parties in relation to criminal matters.

2. In accordance with the provisions of this Treaty and their respective national laws and regulations, the Parties shall provide each other with the widest form possible of legal assistance in the prevention, investigation, prosecution and trial of criminal offences and any activities within the criminal jurisdictional order which are the competence of the competent authorities of the requesting Party at the moment when the assistance is requested.

3. This Treaty shall not be applicable to:

a) the arrest of persons for extradition purposes or to extradition requests;

b) the execution of criminal court rulings, including the transfer of sentenced persons;

c) direct assistance to individuals or third States.

4. This Treaty is entered into solely for purposes of mutual assistance between the Parties. Its provisions shall not confer any right whatsoever in favour of individuals or private persons to obtain, eliminate or set aside evidence or to hinder complying with a request.

ARTICLE 2

CENTRAL AUTHORITIES

1. Each Party shall appoint a Central Authority to be responsible for sending and receiving directly the requests for assistance, pursuant to this Treaty.

2. The Central Authority of the Socialist Republic of Viet Nam shall be the Supreme People’s Procuracy. The Central Authority of the Kingdom of Spain shall be the Ministry of Justice. Either Party may change the Central Authority appointed and inform the other of such change through the diplomatic channels.

3. For the purposes of this Treaty, the Central Authorities shall communicate directly between each other, endeavouring to use the new technologies, with a view to solving the problems that could arise in the course of implementing the requests for assistance.

4. The foresaid notwithstanding, the Parties may use diplomatic channels to send or receive requests for assistance or of information pertaining to the implementation thereof, whenever deemed necessary due to the special circumstances of the case.

ARTICLE 3

SCOPE OF THE ASSISTANCE

Assistance shall include:

a) locating and identifying persons;

b) effecting service of judicial documents;

c) obtaining evidence, including statement of persons;

d) executing search and seizure warrants;

e) serving notices to obtain the consent of persons to give evidence or to assist in investigations in the requesting Party, and where such persons are in custody, arranging for their temporary transfer to that Party;

f) searching, freezing, seizing and confiscating the proceeds of crime and the instrumentalities used to such ends;

g) delivering goods, including the return of objects and the loan of evidence to be produced in court;

h) exchanging information referring to offences and criminal proceedings in the requested Party;

i) exchanging information referring to the criminal records and prior convictions of citizens of the other Party;

j) transfer of criminal proceedings;

k) any other form of assistance included in the object of this Treaty and which is not contrary to the legislation of the requested Party.

ARTICLE 4

REFUSAL OF ASSISTANCE

1. The requested Party shall refuse the assistance requested in the following cases:

a) if the request is not in conformity with international agreements to which the requested Party is a party and its domestic laws;

b) if the implementation of the request may prejudice its sovereignty, security, public order or other essential public interests;

c) if the request for assistance refers to the indictment of a person for an offence for which he was sentenced, acquitted or pardoned in the requested Party or for which he can no longer be brought to criminal prosecution by virtue of statute of limitations if such a criminal offence has been committed within the jurisdiction of the requested Party;

d) if the act or omission to which the request relates does not constitute an offence under the laws of the requested Party;

e) if the request refers to a criminal offence punished with the death penalty in the territory of the requesting Party but for which, in the territory of the requested Party the death penalty is not imposed or is generally not applied, unless the requesting Party were to provide guarantees, deemed sufficient by the requested Party, that the death penalty shall not be imposed or that, if imposed, it shall not be carried out.

2. The requested Party may refuse the assistance requested in the following cases:

a) if the request refers to an offence of a political nature. To such ends, terrorist crimes and any other offences that the requested Party may consider excluded from this category pursuant to any international Convention to which it is a party shall not be construed as “offences of a political nature”;

b) if the request refers to an offence under military law which is not also an offence under ordinary criminal law;

c) if there are substantial grounds to believe that the request for assistance has been made for the purpose of investigation, prosecution or trial of a person for reason of his race, religion, nationality, ethnic origin, political opinions, or sex, or with the intention of subjecting that person to any form of discrimination whatsoever or if such a person’s situation may be prejudiced due to any of these reasons;

d) if the requesting Party is unable to comply with the conditions imposed concerning confidentiality or any limitation regarding use of the material furnished under the term of Article 8.

3. The requested Party may postpone the assistance if execution of the request could interfere with an ongoing investigation or proceeding in the requested Party.

4. Prior to refusing or postponing assistance pursuant to this Article, the requested Party, through its Central Authority:

a) shall promptly inform the requesting Party of the reasons for the refusal or postponement; and

b) shall consult with the requesting Party to determine whether the assistance can be offered within the time frame and under the conditions deemed necessary by the requested Party.

5. If the requesting Party accepts that assistance be executed within the time frame and under the conditions laid down as per paragraph 4(b), such time frame and conditions must be honoured.

PART II

PROCEDURE AND EXECUTION OF REQUESTS

ARTICLE 5

REQUEST FORMAT

1. Requests for assistance shall be made in writing and bear the signature of the competent authority. However, in urgent cases, requests may be transmitted via fax, electronic mail or by any other means providing written proof of their content. The said requests must be confirmed with the original document within ten (10) days of their transmission.

2. Requests for assistance and all documents attached thereto shall be accompanied by a translation into the language of the requested Party or in English.

ARTICLE 6

CONTENT OF THE REQUEST

1. Requests for assistance shall contain the following information:

a) the name and contact information of the authority conducting the investigation or proceeding to which the request relates;

b) a description of the subject matter and nature of the investigation or proceeding including a summary of the specific offence involved;

c) a description as detailed as possible of the evidence, information or any other type of assistance being requested;

d) a statement of the purpose for which evidence, information or any other type of assistance is being requested and their connection with the facts being investigated;

e) a statement or text of the relevant laws, including applicable punishment, on which the investigation or proceeding is based.

2. Where appropriate, requests for assistance may include:

a) information regarding the identity and whereabouts of the person who is the subject of the assistance requested;

b) a description of the relationship that the said person has with the investigation or proceeding and, if relevant, an indication of the form in which notification is to be served or statement taken;

c) a list of questions to be asked to the witness or a detailed description of the matter concerning which the witness is to be interrogated;

d) written information about the safety, accommodation and travel conditions, allowances and expenses, time limit and other specific conditions relating to the appearance of a person on the requested Party in the requesting Party;

e) a detailed description of the place or the person to be searched, the objects to be seized and of the assets liable to confiscation or seizure;

f) requirements concerning the confidentiality of the request;

g) a description of any special proceeding which the requesting Party would like to see followed in the execution of the request;

h) a list of the requesting Party authorities who will participate in the execution of the request in the requested Party and the purpose, intended date and schedule;

i) the time frame within which the request must be carried out and an explanation in the case of urgency;

j) any other information deemed useful for the requested Party in the execution of the request for assistance.

ARTICLE 7

EXECUTION OF THE REQUEST

1. Requests for assistance shall be sent directly to the Central Authority of the requested Party, which will promptly execute the said request or transfer it to the competent authorities for execution.

2. The requested Party shall promptly inform the requesting Party of any circumstance which could cause considerable delay in responding to the request.

3. In accordance with the provisions of Article 4, the requested Party shall likewise promptly communicate the reasons for postponement or refusal to comply with the request and the conditions under which, if relevant, it can be executed.

4. In the execution of the request, the requested Party shall make an effort to maintain confidentiality under the terms laid down in Article 8.

ARTICLE 8

CONFIDENTIALITY AND LIMITS ON THE USE OF INFORMATION

1. Upon request by the requesting Party, the requested Party shall maintain confidentiality in respect of the request for assistance, its content and supporting documents and any actions taken pursuant to the request. If the request cannot be executed without breaching the said confidentiality, the requested Party shall communicate this fact to the requesting Party who will then determine whether the request should be carried out regardless of the said breach.

2. Upon request by the requested Party, the requesting Party shall maintain confidentiality in respect of the evidence and information furnished in execution of the request for assistance, except to the extent the evidence and information is necessary for the proceeding or investigation described in the request.

The requested Party may make compliance with the request contingent upon specified terms or conditions relating to the use made of the information or evidence. In any case, the requesting Party shall not use the evidence obtained for any purposes other than those specified in the request without the prior consent of the competent authority of the requested Party.

ARTICLE 9

APPLICABLE LAW

1. Execution of requests for assistance shall be undertaken in accordance with the law of the requested Party and pursuant to the provisions of this Treaty.

2. Upon request by the requesting Party, the requested Party, in its execution of the request, shall adhere to the special procedures and formalities indicated in the request providing that they do not contravene its domestic law.

ARTICLE 10

INFORMATION ABOUT THE REQUEST

1. Upon request by the Central Authority of the requesting Party, the Central Authority of the requested Party shall furnish information regarding the way the request is being processed or the degree to which the request has been executed.

2. The Central Authority of the requested Party shall forward all information and evidence obtained to the requesting Party.

3. When the requested Party is unable or only partially able to comply with the request, the Central Authority of the requested Party shall promptly inform the Central Authority of the requesting Party of this circumstance and of the reasons therefor.

ARTICLE 11

EXPENSES

The requested Party shall meet the cost of fulfilling the 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 and any fees, allowances, expenses payable to that person whilst in the requesting Party pursuant to a request under Article 14 and Article 15 of this Treaty;

b) the expenses associated with conveying custodial or escorting officers;

c) the expenses associated with experts;

d) the expenses associated with interpreting, translating and transcription of documents and obtaining images of evidence via videoconference or other electronic means from the requested Party to the requesting Party;

e) the expenses of an extraordinary nature arising during the execution of the request as the requested Party requires.

PART III

FORMS OF ASSISTANCE

ARTICLE 12

SERVICE OF DOCUMENTS

1. If the purpose of a request is to serve notice of a judicial document, the authorities of the requested Party shall carry out the said notification in accordance with its procedural law.

2. If the purpose of a request is the delivery of objects or documents, the authorities of the requested Party shall undertake to deliver such objects or documents sent to it by the requesting Party for that purpose.

3. Notifications shall be made in one of the manners provided under the law of the requested Party or in the manner stipulated by the requesting Party provided this does not contravene the former.

4. Delivery shall be confirmed by means of a notice of receipt dated and signed by the addressee or by means of certification by the competent authority confirming that the proceeding was carried out. This certification of compliance shall be sent to the requesting Party. In the event that delivery is not possible, reasons shall be given.

ARTICLE 13

APPEARANCE IN THE REQUESTED PARTY

1. Any person who is within the territory of the requested Party and who is called upon to make a statement or testify, furnish evidence or provide an expert opinion must appear before the competent authorities of the requested Party in accordance with the law of the latter. The requested Party shall issue a subpoena to the person in question under punitive sanctions envisaged in its legislation.

2. The competent authority of the requested Party may authorise, under its control, the presence of the authorities of the requesting Party indicated in the request during the execution of the request and may allow them to pose questions. The hearing shall be conducted in accordance with the proceedings as provided for in the law of the requested Party or, in so far as it is not inconsistent with the law of the requested Party, in the special way as requested by the requesting Party.

3. In the case envisaged in the preceding paragraph, the requested Party shall inform the requesting Party with sufficient notice as to the date and place where the requested assistance will be carried out. The competent authorities shall consult with one another as necessary through their Central Authorities for the purpose of establishing a date agreeable to the competent authorities of both Parties.

4. If the person referred to in paragraph 1 were to claim immunity, privilege or incapacity in accordance with the law of the requested Party, the competent authority of the requested Party shall decide on the validity of such claim before complying with the request and shall communicate the said decision to the requesting Party through its Central Authority.

5. If the person referred to in paragraph 1 were to claim immunity, privilege or incapacity in accordance with the law of the requesting Party, the competent authority of the requested Party shall inform the other Party of this fact through its Central Authority in order to enable the competent authorities of the requesting Party to take appropriate action.

ARTICLE 14

APPEARANCE IN THE REQUESTING PARTY

1. If the judicial authorities of the requesting Party require the appearance of a person in the territory of the requesting Party to give evidence or furnish any type of information, this should be made explicit in the request. The authorities of the requested Party shall invite the person in question to appear before the authorities in the territory of the requesting Party and shall inform the requesting Party as to the response of the person in question as soon as possible.

2. Requests to subpoena such person to appear before the authorities of the requesting Party must be received by the Central Authority of the requested Party not less than ninety (90) days before the date on which the attendance is required in the requesting Party. In urgent cases, the requested Party may waive this requirement.

3. The subpoena requests referred to in this Article may not carry the threat of sanction nor punitive clauses; if they do, such clauses shall not take effect in the event that the person fails to appear.

4. In the request, the authorities of the requesting Party shall stipulate the costs they will cover.

ARTICLE 15

APPEARANCE OF DETAINED PERSONS BEFORE THE AUTHORITIES OF THE REQUESTING PARTY

1. Any person detained in the requested Party, and whose presence is required in the requesting Party as a witness or as an expert for the purpose of assistance under the terms of this Treaty, may, upon request of the requesting Party, be transferred to the territory of the requesting Party providing that the person in question is willing and the Central Authority of the requested Party grants its consent. If the detainee is unwilling, he/she shall not be subjected to any sanction or punitive measure.

2. The transfer may be refused when the presence of the detainee is needed in a criminal proceeding under way in the territory of the requested Party, when the transfer may entail a lengthening of the period of detention or when, for any other reason, the Central Authority of the requested Party deems the transfer inappropriate.

3. The authorities of the requesting Party shall keep the transferred person in custody the entire time he/she is in then territory. The period of time the detained person is held in the requesting Party shall be subtracted from the period of his/her imprisonment. If the authorities of the requested Party inform the other Party that the person in question should no longer remain in custody, the said person shall immediately be set free and be treated as a person referred to in Article 14 of this Treaty.

4. The authorities of the requesting Party shall return the transferred person within the time frame established by the requested Party and, in any case, when his/her presence in the territory of the requesting Party is no longer necessary.

ARTICLE 16

VIDEOCONFERENCE

The Parties may agree to the taking of statements by means of videoconference in accordance with conditions laid down on a case-by-case basis.

ARTICLE 17

IMMUNITY

1. No person under Articles 14 and 15 of this Treaty, regardless of then nationality, requested to appear before the judicial authorities of the requesting Party shall be accused, arrested or subjected to any other deprivation of their personal freedom in the territory of the said Party for events or prior convictions taking place before their departure from the territory of the requested Party.

2. The immunity provided for in this Article shall cease to apply at the moment the person in question, having had the opportunity to depart from the territory of the requesting Party, remains within the said territory for fifteen (15) consecutive days after having been officially notified by the competent authority of the requesting party that his/her presence is no longer required, or returns to the said territory after having left.

ARTICLE 18

PROCEEDS AND INSTRUMENTALITIES OF CRIME

1. The competent authority of one Party, through its Central Authority, may request the identification or the adoption of precautionary measures in respect of proceeds and instrumentalities of crime, which are found in the territory of the other Party.

2. The requested Party shall adopt the precautionary measures in respect of the said proceeds and instrumentalities of crime, as provided by its legal system.

3. The requested Party shall undertake to resolve, in accordance with its laws and regulations, any request regarding the protection of the rights of bona fide third parties in respect of the proceeds and instrumentalities of crime which are subject to the measures envisaged in the preceding paragraphs.

4. The competent authority of the requested Party may establish a reasonable time frame limiting the duration of the measure requested, depending on the circumstances.

5. For the purpose of this Treaty, proceeds of crime shall mean any property derived from or obtained, directly or indirectly, through the commission of an offence; and instrumentalities of crime shall mean any property, equipment or other instrumentalities used in or destined for use in offences.

ARTICLE 19

SPONTANEOUS EXCHANGE OF INFORMATION

1. The Parties may, without prior request, exchange information regarding criminal offences when they consider the said information to be useful in initiating or carrying out investigations or proceedings.

2. The Party providing the information may impose conditions regarding the use made of such information by the receiving Party. Acceptance of the said information means that the receiving Party shall comply with conditions imposed.

ARTICLE 20

TRANSFER OF CRIMINAL PROCEEDINGS

1. The Parties may, through their Central Authorities, transfer charges the aim of which is to initiate a proceeding before the judicial authorities of the other Party, when they consider that the said Party is in a better position to conduct the investigation, prosecution and trial of the offences.

2. The requested Party must notify the requesting Party as to the proceeding adopted in respect of the transferred charges and shall remit, where appropriate, a copy of the decision adopted.

ARTICLE 21

CERTIFICATION AND AUTHENTICATION

For the purposes of this Treaty, the documents conveyed via the Central Authorities shall not require any certification, authentication or any other analogous formality.

ARTICLE 22

CONSULTATIONS

The Central Authorities of the two Parties may hold consultations with a view to promoting the more effective implementation of this Treaty and agree on the practical measures necessary to assist in the implementation thereof.

ARTICLE 23

DISPUTE RESOLUTION

Any dispute that may arise between the Parties, arising from the interpretation or implementation of this Treaty shall be resolved by consultation between the Central Authorities. In the event no solution is reached, diplomatic channels shall be used.

PART IV

FINAL PROVISIONS

ARTICLE 24

COMPATIBILITY WITH OTHER INSTRUMENTS OR FORMS OF COOPERATION

1. This Treaty shall not prevent the Parties from assisting each other pursuant to the provisions of other international arrangements to which they are party.

2. This Treaty shall not prevent the Parties from developing other forms of cooperation, in accordance with their national laws and regulations.

ARTICLE 25

ENTRY INTO FORCE

1. Each Party shall inform the other by diplomatic note when all necessary steps under its domestic laws have been taken for entry into force of this Treaty. This Treaty shall enter into force on the thirtieth day from the date of receipt of the later diplomatic note.

2. This Treaty shall apply to requests presented after its entry into force even if the relevant act or omission occurred before entry into force of this Treaty.

ARTICLE 26

DURATION AND TERMINATION

1. The present Treaty shall have an indefinite duration.

2. This Treaty may be amended and supplemented subject to mutual consent of the Parties and in accordance with the procedure relating to the entry into force of this Treaty. Any amendment and supplement shall become an integral part of this Treaty.

3. Each of the Parties may terminate the present Treaty in writing through diplomatic channels. This termination shall take effect six (6) months after the notification date. The termination of this Treaty shall not affect requests made pursuant to this Treaty before the termination takes effect.

IN WITNESS WHEREOF, the undersigned, duly authorised, have signed this Treaty.

Done at Madrid on the eighteenth day of September Two Thousand and Fifteen, in duplicate in the Vietnamese, Spanish and English languages, all texts being equally authentic.