PART II - REQUESTS

5. Request to Mauritius

(1) A foreign State may, in relation to a serious offence, and an international criminal tribunal may, in relation to an international criminal tribunal offence, make a request for assistance to the Central Authority in any proceedings commenced in the foreign State or before the international criminal tribunal, as the case may be.

(2) The Central Authority may, in respect of a request under subsection (1) from a foreign State -

(a) promptly grant the request, in whole or in part, on such terms and conditions as it thinks fit or refer the matter to the appropriate authority for prompt execution of the request, in which case the Central Authority may represent the foreign State in proceedings entered to give effect to the request ;

(b) refuse the request, in whole or in part, on the ground -

(i) that compliance with the request would be contrary to the Constitution ;
(ii) of prejudice to the sovereignty, international relations, security, public order, or other public interest of Mauritius ;
(iii) of reasonable belief that the request for assistance has been made for the purpose of prosecuting a person on account of that person's race, sex, religion, nationality, ethnic origin or political opinions, or that a person's position may be prejudiced for any of those reasons ;
(iv) of absence of dual criminality, where granting the request would require a court in Mauritius to make an order in respect of any person or property in respect of conduct which does not constitute an offence, nor gives rise to a confiscation or restraining order, in Mauritius ;
(v) that the request relates to an offence under military law, or a law relating to military obligations, which would not be an offence under ordinary criminal law ;
(vi) that the request relates to a political offence or an offence of a political character ;
(vii) that the request relates to an offence, the prosecution of which, in the foreign State, would be incompatible with laws of Mauritius on double jeopardy ;
(viii) that the request requires Mauritius to carry out measures that are inconsistent with its laws and practice, or that cannot be taken in respect of criminal matters arising in Mauritius ; or

(c) after consulting with the competent authority of the foreign State, postpone granting the request in whole or in part, on the ground that granting the request immediately would be likely to prejudice the conduct of proceedings in Mauritius.

(3) The Central Authority may, in respect of a request under subsection (1) from an international criminal tribunal, grant the request, in whole or in part, on such terms and conditions as it thinks fit.

(4) A request under subsection (1) -

(a) may relate to any matter referred to in section 4(2) ; and
(b) shall contain such appropriate particulars as are referred to in section 4(3).

(5) A request shall not be invalidated for the purpose of this Act or any legal proceedings by virtue of any failure to comply with section 4(3), where the Central Authority is satisfied that there is sufficient compliance to enable him to execute the request.

(6) Where the Central Authority refuses a request, either in whole or in part, he shall so inform the foreign State or the international criminal tribunal.

(7) For the purpose of a request referred to in subsection (4), any reference in section 4(2) or (3) to a foreign State or to Mauritius shall be construed as a reference to Mauritius or the foreign State, as the case may be.

PART II - REQUESTS

4. Request from Mauritius

(1) The Central Authority may make a request on behalf of Mauritius to the competent authority of a foreign State, or to an international criminal tribunal, for mutual assistance in any proceedings commenced in Mauritius in relation to a serious offence.

(2) A request under subsection (1) may require the foreign State or, as the case may be, the international criminal tribunal, to provide such assistance as may be specified in the request and, in particular to -

(a) have evidence taken, a statement or information taken, or documents or other articles produced ;
(b) have evidence taken by means of technology that permits the virtual presence of the person in Mauritius ;
(c) obtain and execute a search warrant, or other lawful instrument, authorising a search for things believed to be located in the foreign State, which may be relevant to the proceedings, and if found, seize them ;
(d) locate or restrain any property reasonably believed to be the proceeds of a serious offence and located in the foreign Stat;
(e) confiscate any property reasonably believed to be located in the foreign State, which is the subject of a confiscation order made by a Court in Mauritius and transmit such property or, any proceeds realised therefrom, to Mauritiu;
(f) take measures for the freezing or confiscation of proceeds of a serious offence ;
(g) permit the presence of an authorised person during the execution of any request made under this section ;
(h) effect service of documents ;
(i) examine any person with his consent, any object or any site ;
(j) locate and identify persons;
(k) facilitate the appearance of witnesses or the attendance of persons in proceedings, subject to such practical and financial arrangements as may be agreed upon ;
(l) transfer in custody to Mauritius a person detained in the foreign State, or by the international criminal tribunal, who consents to give evidence or to assist Mauritius in the proceedings ; and
(m) transmit to Mauritius any evidence, statement, report, information, whether in original or a certified copy, document, article, thing or property referred to in this subsection.

(3) A request under subsection (1) shall be in writing and shall -

(a) give the name of the requesting authority ;
(b) give the name of the authority conducting the proceedings to which the request relates ;
(c) give a description of the nature of the proceedings and a statement setting out a summary of the relevant facts and laws ;
(d) explain the purpose of the request and the nature of the assistance being sought ;
(e) give details of any procedure which is required to be followed to comply with the laws of Mauritius ;
(f) where appropriate, include a statement setting out any wish as to confidentiality of the request and the reasons for that wish ;
(g) indicate any time limit within which compliance with the request is desired, stating reasons ;
(h) indicate the name and address of the person to be served, where necessary ;
(i) give any other information that may assist in giving effect to the request ;
(j) be supplemented with such other procedures, formalities, and information as may be required by the foreign State to give effect to the request ; and
(k) where necessary, be accompanied by a translation into the official language of the foreign State.

5. Request to Mauritius

(1) A foreign State may, in relation to a serious offence, and an international criminal tribunal may, in relation to an international criminal tribunal offence, make a request for assistance to the Central Authority in any proceedings commenced in the foreign State or before the international criminal tribunal, as the case may be.

(2) The Central Authority may, in respect of a request under subsection (1) from a foreign State -

(a) promptly grant the request, in whole or in part, on such terms and conditions as it thinks fit or refer the matter to the appropriate authority for prompt execution of the request, in which case the Central Authority may represent the foreign State in proceedings entered to give effect to the request ;

(b) refuse the request, in whole or in part, on the ground -
(i) that compliance with the request would be contrary to the Constitution ;
(ii) of prejudice to the sovereignty, international relations, security, public order, or other public interest of Mauritius ;
(iii) of reasonable belief that the request for assistance has been made for the purpose of prosecuting a person on account of that person's race, sex, religion, nationality, ethnic origin or political opinions, or that a person's position may be prejudiced for any of those reasons ;
(iv) of absence of dual criminality, where granting the request would require a court in Mauritius to make an order in respect of any person or property in respect of conduct which does not constitute an offence, nor gives rise to a confiscation or restraining order, in Mauritius ;
(v) that the request relates to an offence under military law, or a law relating to military obligations, which would not be an offence under ordinary criminal law ;
(vi) that the request relates to a political offence or an offence of a political character ;
(vii) that the request relates to an offence, the prosecution of which, in the foreign State, would be incompatible with laws of Mauritius on double jeopardy ;
(viii) that the request requires Mauritius to carry out measures that are inconsistent with its laws and practice, or that cannot be taken in respect of criminal matters arising in Mauritius ; or
(c) after consulting with the competent authority of the foreign State, postpone granting the request in whole or in part, on the ground that granting the request immediately would be likely to prejudice the conduct of proceedings in Mauritius.

(3) The Central Authority may, in respect of a request under subsection (1) from an international criminal tribunal, grant the request, in whole or in part, on such terms and conditions as it thinks fit.

(4) A request under subsection (1) -

(a) may relate to any matter referred to in section 4(2) ; and
(b) shall contain such appropriate particulars as are referred to in section 4(3).

(5) A request shall not be invalidated for the purpose of this Act or any legal proceedings by virtue of any failure to comply with section 4(3), where the Central Authority is satisfied that there is sufficient compliance to enable him to execute the request.

(6) Where the Central Authority refuses a request, either in whole or in part, he shall so inform the foreign State or the international criminal tribunal.

(7) For the purpose of a request referred to in subsection (4), any reference in section 4(2) or (3) to a foreign State or to Mauritius shall be construed as a reference to Mauritius or the foreign State, as the case may be.


PART III - FORMS OF MUTUAL ASSISTANCE

6. Procedure for an evidence-gathering order or a search warrant

(1)Notwithstanding any other enactment, where the Central Authority grants a request by a foreign State, or an international criminal tribunal, to obtain evidence or a search warrant in Mauritius, the Central Authority may apply to a Judge in Chambers for -

(a) an evidence-gathering order ; or
(b) a search warrant for the search of a person or premises, and removal or seizure of any document or article.

(2) Subject to section 5(5), a request by a foreign State, or an international criminal tribunal, for an evidence-gathering order shall -

(a) comply with the requirements in section 4(3) ;

(b) specify -
(i) the name and address or the official designation of the person to be examined ;
(ii) the question to be put to the person or the subject matter about which he is to be examined ;
(iii) whether it is desired that the person be examined orally or in writing ;
(iv) whether it is desired that an oath be administered to the person ;
(v) any provision of the law of the foreign State as to privilege or exemption from giving evidence which appears especially relevant to the request ; and
(vi) any special requirements of the law of the foreign State as to the manner of taking evidence relevant to its admissibility in that State ;
(vii) the document, record or property to be inspected, preserved, photographed, copied or transmitted ;
(viii) the property of which samples are to be taken, examined or transmitted ; and
(ix) the site to be viewed or photographed.

(3) A request by a foreign State or an international criminal tribunal for a search warrant shall -

(a) comply with the requirements in section 4(3) ;
(b) specify the property to be searched for and seized ; and
(c) contain such information available to the foreign State or international criminal tribunal, as the case may be, as may be required for the purpose of the application.

(4)(a) Subject to subsection (9), the Judge in Chambers shall grant an application for an evidence-gathering order where he is satisfied that there are reasonable grounds to believe that -

(i) a serious offence has been or may have been committed against the law of the foreign State or an international criminal tribunal offence has been or may have been committed ; and
(ii) evidence relating to an offence referred to in subparagraph (i) may be -

(A) found in Mauritius ; or
(B) given or produced by a person believed to be in Mauritius.

(b) The Judge in Chambers shall not grant an application for a search warrant where it would, in all the circumstances, be more appropriate to grant an evidence-gathering order.

(5) For the purposes of subsection (4)(a)(i), a statement contained in the request to the effect that -

(a) a serious offence has been or may have been committed against a law of the foreign State ; or
(b) an international criminal tribunal offence has been or may have been committed,
shall be prima facie evidence of that fact.

(6) An evidence-gathering order-

(a) shall provide for the manner in which the evidence is to be obtained in order to give effect to the request and may require any person named therein to-

(i) make a record from data or make a copy of a record ;
(ii) attend before the Master and Registrar to give evidence ; and
(iii) produce to the Judge in Chambers, or to any other person designated by him, any article, including any document, or copy thereof ; or

(b) may include such terms and conditions as the Judge in Chambers considers desirable, including those relating to -

(i) the interests of the person named therein or of third parties ; or
(ii) the questioning of the person named therein by any representative of the foreign state or international tribunal, as the case may be.

(7) Subject to subsections (8) and (9), a person named in an evidence-gathering order may refuse to answer a question, or to produce a document or article, where the refusal is based on -

(a) an enactment which permits the person to decline to give evidence in similar circumstances in proceedings originating in Mauritius or a privilege recognised by the law in Mauritius ;
(b) a privilege recognised by a law in force in the foreign State that made the request ; or
(c) a law currently in force in the foreign State that would render the answering of that question, or the production of that document or article by that person, in his own jurisdiction, an offence.

(8) (a) Where a person refuses to answer a question or to produce a document or article pursuant to subsection (7)(b) or (c), the Central Authority shall notify the foreign State and request the foreign State to provide a written statement on whether the person’s refusal was well-founded under the law of the foreign State.

(b) A written statement received by the Central Authority from the foreign State in response to a request under paragraph (a) shall be admissible before the Judge in Chambers and, for the purposes of this section, be conclusive evidence that the person’s refusal is, or is not, well-founded under the law of that state.

(c) Any person who, without reasonable excuse, refuses to comply with an order of a Judge in Chambers made under this section or who, having refused to answer a question or to produce a document or article on a ground specified in subsection (7), continues to refuse notwithstanding the admission into evidence of a statement under paragraph (b) to the effect that the refusal is not well-founded, shall be in contempt of court.

(9) Notwithstanding section 26 of the Bank of Mauritius Act 2004, section 64 of the Banking Act 2004 and section 33 of the Financial Services Development Act 2001 and subsections (7) and (8), a Judge in Chambers hearing a request from a foreign State or an international criminal tribunal may grant an evidence-gathering order or search warrant against the Bank of Mauritius, a bank or financial institution where he is satisfied that -

(a) the information is material and necessary to the proceedings in the foreign State or before the international criminal tribunal ; and
(b) the law of the foreign State permits the disclosure of information to foreign States in circumstances similar to the one relating to the request.

(10) The Central Authority shall inform the foreign State of the date and place of the taking of evidence pursuant to this section.

(11) The Judge in Chambers may authorise the presence of representatives of the foreign State, and of parties to the relevant proceedings in the foreign State, at the proceedings under this section.

(12) The Central Authority shall provide such authenticated report as may be required by the foreign State, or international criminal tribunal, concerning -

(a) the result of any search ;
(b) the place and circumstances of seizure ; and
(c) the subsequent custody of the property seized.


7. Foreign request for a virtual evidence-gathering order

(1) Where the Central Authority grants a request by a foreign State, or an international criminal tribunal, to order a person to give evidence by means of technology that permits the virtual presence of the person in the territory over which the foreign State has jurisdiction or in the International Criminal Tribunal, it may apply to a Judge in Chambers for an order for the taking of the virtual evidence of the person.

(2) Where there exist in Mauritius facilities for the taking of evidence by technology permitting the virtual presence of a person in the foreign State, the Judge in Chambers shall grant the application where he is satisfied that there are reasonable grounds to believe that -

(a) a serious offence has been or may have been committed against the law of the foreign State or, as the case may be, an international criminal tribunal offence has been or may have been committed ; and
(b) evidence relating to an offence referred to in paragraph (a) may be given by a person believed to be in Mauritius.

(3) A virtual evidence-gathering order made under subsection (2) may require any person named therein to-

(a) attend at a time and place fixed by the Judge in Chambers to give evidence by means of the technology ;
(b) answer any question put to him by the foreign State, or the international criminal tribunal, or a person authorised by any of them in accordance with the law that applies to that State, or to the tribunal ; and
(c) produce at the time and place fixed by the Judge in Chambers, or exhibit, any article, including a document, by means of the technology.

(4) Where a witness gives evidence under subsection (3) -

(a) the evidence shall be given as though the witness were physically before the court, or tribunal, outside Mauritius for the purposes of the laws relating to evidence and procedure, but only to the extent that giving the evidence would not entail disclosure of information otherwise protected by any law on non-disclosure of information or privilege ;
(b) the law of Mauritius relating to perjury shall apply with respect to any evidence given by the person as though the person was a witness before a court in Mauritius.

(5) Where a witness refuses -

(a) to attend at the time and place fixed by the Judge in Chambers ; or
(b) to answer a question, or produce, or show a document or article as ordered by the Judge in Chambers under subsection (3),
he shall be in contempt of the court.