National procedures for execution of requests for other forms of cooperation

Georgia

Georgia - Law on Cooperation between the International Criminal Court and Georgia 2003 EN

Chapter V
Surrender of a person to the International Court


Article 22. A request for searching for and arrest of a person; preservation of evidence

1. A request concerning the searching for and arrest of a person required by the International Court must contain:
(a) exact data on the person whom the request refers to and his alleged actual location;
(b) a summary of circumstances of the case as well as, if possible, place and time of commission of a crime;
(c) an indication to a warrant of arrest or a convicting decision made in relation to the person;
(d) an indication that a request for surrender will be further presented.

2. If the Responsible Agency decides in favor of the request, it then applies to the Prosecutor General of Georgia; the latter, in accordance with procedure prescribed by law, issues a warrant of searching for, arrest and searching the person.

3. When arresting a person, items that may be used as evidence before the International Court shall be seized and preserved in a manner prescribed by law.

4. The fact of arresting and seizure of the evidence shall be notified to the Responsible Agency, which on its part immediately informs the International Court thereon and requests the Court to immediately forward a request for surrender to it.

Chapter V
Surrender of a person to the International Court


Article 27. Issuance of a surrender permit

1. A decision on surrender of a prosecuted person as well as for transfer of items and property holding material value, seized and preserved in a proper manner shall be taken by the Responsible Agency.

2. If the prosecuted person or the Responsible Agency is challenging the jurisdiction of the International Court, issuance of the permit will be delayed until the International Court passes its decision on the matter.

3. If a third party, or victim whose residence is in Georgia requests the exercise of his/its ownership right over the property or items holding material value that are seized to be used as evidence, the above property or item items holding material value may be transferred to the International Court providing the latter undertakes to returned them free of charge upon the completion of proceedings.

Chapter VI
Other Forms of Cooperation


Article 31. Basic principle of cooperation

1. Georgia shall cooperate with the International Court pursuant to Article 32 of this Law if it derives from the Court’s request and materials accompanying it that the act is within the jurisdiction of the Court.
2. If the International Court is considering an appeal challenging its jurisdiction pursuant to Articles 17-19 of the Statute, the Responsible Agency may suspend execution of the request until the International Court passes a decision on the matter. In this case preparatory measures may be taken by decision of the Responsible Agency.
Article 32. Forms of cooperation
In accordance with this Chapter, cooperation with the International Court may include any procedural measure under the Statute and Georgian legislation that facilitates investigation and prosecution of crimes within the jurisdiction of the International Court as well as the seizure of the proceeds of crime. Such measures may be include:
(a) The identification and whereabouts of persons;
(b) The taking of evidence, including witness testimony under oath, and the production and service of evidence necessary to the Court, including expert opinions and reports;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judgments;
(e) The temporary transfer of arrested persons;
(f) Identification of location of places or objects;
(g) Searches, seizures, and confiscations;
(h) The provision of records and documents, including judicial (courtroom) records and documents;
(i) The protection of victims and witnesses and the preservation of evidence;
(j) The identification or seizure of proceeds, property and assets of material value and instrumentalities of crimes for the purpose forfeiture;
(k) Facilitation of voluntary appearance before the Court by persons, witnesses and experts;
(l) the execution of exhumation, examination of places and objects, including uncovering and examination of graves.
(m) Any other type of assistance which is not prohibited by the legislation of Georgia and which will facilitate the investigation and prosecution of crimes within the jurisdiction of the International Court.





Article 33. Preliminary measures
1. Based on the request of the International Court’s, the Responsible Agency may, for purpose of preserving the legal values and evidence being under threat, take a decision on the use preliminary measures.
2. In case of emergency, the Responsible Agency is entitled to decide on using preliminary measures immediately after receipt of a request, if adequate reasons are at hand. These measures shall be terminated if the International Court fails to submit a relevant request within a time limit set by the Responsible Agency.

Article 34. Use of procedure
as a rule the requests of the International Court is executed in accordance with the procedure established by the Georgian legislation. However, at the request of the International Court, procedures established by the International Court may be used.
Article 35. Transfer of evidence to other state
1. The International Court may apply to the Responsible Agency with a request for a permit for transferring evidence provided by Georgia to an other state.
2. The Responsible Agency will decide in favor of such a request pursuant to the provisions of this Chapter, if the conduct is within the jurisdiction of the International Court. Where this is not the case, the matter shall be resolved in accordance with International treaties of Georgia relative to legal assistance and the code of criminal Procedure of Georgia.
Article 36. Interrogation Of The Person
1. A person suspected of the commission of crime under the jurisdiction of the International Court enjoys following rights during the interrogation:
(a) the right to be given notice that he is suspected of commission of a crime within the jurisdiction of the International Court
(b) Right to refuse to give testimony
(c) the right to invite the defense counsel of his own choice, or he does not have one, to demand the appointment of the counsel by the responsible agency
(d) right to be interrogated in the presence of his defense counsel, unless he refuse the assistance of the counsel by his own free will.
2. if a person is interrogated in a language he does not or inadequately understand, he shall be assigned an interpreter. He shall also be entitled to receive necessary material translated in a language he understands.
3. A person shall have the right to refuse to testify against his close friends and relatives as defined by the Code of Criminal procedure of Georgia and by the Rules of Procedure and evidence of the International Court or by refusing to testify a person desires to prevent the disclosure of information related to state security, in accordance with Article 72 of the Statute. If the person decides to use this right, the Responsible Agency shall decide on acceptability of interrogating the person.
4. Rights established in this Article shall be explained to the person concerned before he is interrogated.
Article 37. Service of documents
The International Court may forward its decisions or other procedural documents produced in the course of proceedings to a recipient in Georgia by diplomatic channels or by mail.
Article 38. Summons to the International Court
1. A summons for witnesses and experts/specialists before the International Court shall be accompanied with the Rules of Procedure and Evidence relating to self-incrimination and shall be served to person in a language they understand. the witness, expert or specialist, who appeared before the International Court shall be given guarantee by the International Court that he/she will not be prosecuted, arrested or otherwise deprived of his freedom for the conduct that took place before he appeared before the International Court.
2. A summoned person is not obliged to appear before the International Court if his transportation expenses are not covered by the International Court.

3. If the International Court submits the request envisaged in this article, the International Court shall also submit to Responsible Agency the appropriate documents guaranteeing that the expenses of free movement of the witness will be covered by the International Court.
Article 39. Conducting investigation measures on the territory of Georgia
1. The Responsible Agency, at the request of the International Court, shall have the right to authorize the conduct investigative measures on the territory of Georgia by a representative of the International Court, pursuant to Article 99(4) of the Statute.
2. The Responsible Agency shall notify the state authority having the competence to conduct prosecution measures about the fact of authorization of representatives of the International Court for conducting investigative measures on the territory of Georgia.
Article 40. Temporary surrender of arrested persons
1. A person being in custody in Georgia may be temporarily transferred to the International Court for identification, interrogation, cross-examination or other investigation purposes, in accordance with article 93 of the Statute.
2. The person may by temporarily transferred to the International Court, if the International Court covers the expenses of his transportation and his remaining into custody, provided that it will return the person after the purpose of the transfer is fulfilled.
Article 41. Transfer of evidence
1. An object, an item holding material value, documents, written materials and/or any other objects, confiscated for the purpose of substantiation, which under the Statute and the Code of Criminal Procedure of Georgia, could be used as evidence, shall be transferred to the International Court at the letter's request.
2. If a third party, organization or victim whose location is in Georgia requests the protection of his/its property rights over the confiscated objects or other piece of evidence, the object or item may be transferred to the International Court if the latter undertakes to returned it free of charge following the completion of proceedings.
3. The transfer of such property or item may be postponed if it is necessary for ongoing proceedings in Georgia and if the International Court, after consultation, gives its consent thereto.
Article 42. Confiscation of objects or items holding material value
1. Objects or items holding material value confiscated for securing of evidence may be transferred to the International Court at the latter’s request for the purpose of confiscation, handing in to the Trust Fund established under Article 79 of the Statute or reparation.
2. Objects or items referred to in this Article may be as follows:
a) Instrumentalities of crimes; objects of a criminal conduct.
b) Proceeds of crime, such as money or value obtained, revenue or profits.
g) gift or money that served or was used for commission of a crime and/or was awarded for the commission of a crime;
3. Objects or items holding material value shall be seized and freezed until they are transferred to the International Court or the Responsible Agency notifies the International Court on its refusal to transfer them.
4. Objects or items holding material value shall not be transferred to the International Court if:
a) The victim resides in Georgia and the objects or items holding material value shall be returned to him;
b) Third party has legitimate right over objects or items holding material value;

g) a person who did not participate in the commission of the crime proves that he has acquired the property right over the objects or items holding material value or asset in Georgia or abroad in a bona fide manner and that he resides in Georgia;
d) Objects or items holding material value are necessary for ongoing proceedings or they are subject to expropriation in Georgia.
5. If a person uses his right under paragraph 4 of this Article, the transfer to the International Court of the property or asset shall be postponed until the legal status of the objects or items, holding material value is determined.

Rome Statute

Article 89 Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(a) The identification and whereabouts of persons or the location of items;

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;

(c) The questioning of any person being investigated or prosecuted;

(d) The service of documents, including judicial documents;

(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;

(f) The temporary transfer of persons as provided in paragraph 7;

(g) The examination of places or sites, including the exhumation and examination of grave sites;

(h) The execution of searches and seizures;

(i) The provision of records and documents, including official records and documents;

(j) The protection of victims and witnesses and the preservation of evidence;

(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and

(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.

3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.

4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.

5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.

6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.

7.

(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:

(i) The person freely gives his or her informed consent to the transfer; and

(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.

(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.

8.

(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.

(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.

(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.

9.

(a)

(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.

(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.

(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.

10.

(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.

(b)

(i) The assistance provided under subparagraph (a) shall include, inter alia:

a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and

b. The questioning of any person detained by order of the Court;

(ii) In the case of assistance under subparagraph (b) (i) a:

a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;

b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.

(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.