PART V - CO-OPERATION AND JUDICIAL ASSISTANCE

22. Request for assistance in obtaining evidence

(1) A request by the International Criminal Court for assistance in obtaining evidence in Mauritius for use in the International Criminal Court shall be submitted in writing to the Attorney-General.

(2) On receipt of such request, the Attorney-General shall satisfy himself that –
(a) proceedings have been instituted in the International Criminal Court; or
(b) there are reasonable grounds for believing that an international crime within the jurisdiction of the International Criminal Court has been committed; or
(c) an investigation in respect of the alleged crime is being conducted by the Prosecutor of the International Criminal Court .

(3) For the purposes of subsection (2), the Attorney-General may rely on a certificate issued by a Judge of the International Criminal Court or the Prosecutor of the International Criminal Court, confirming one or more of the requirements referred to in subsection (2).

(4) Where the Attorney-General is satisfied that one or more of the requirements referred to in subsection (2) have been complied with, he shall submit the request referred to in subsection (1) to the Magistrate within whose area of jurisdiction the witness resides or is believed to be present, as well as to the Director of Public Prosecutions

PART V - CO-OPERATION AND JUDICIAL ASSISTANCE

28. Securing attendance of witnesses

(1) Every summons issued by a Judge or the Prosecutor of the International Criminal Court for the attendance of a person in any proceedings before the International Criminal Court shall be transmitted to the Attorney-General.
(2) On receipt of a summons, the Attorney-General shall immediately transmit it to the Magistrate within whose area of jurisdiction the person resides or is present.
(3) The Magistrate shall, if satisfied that the summons was issued by the International Criminal Court, endorse it for service upon such person, and the endorsed summons may be served as if it were a summons issued by the Magistrate.
(4) A return of service indicating that the summons was properly served on the person concerned, together with a certificate by the Magistrate to the effect that such person failed to appear at the time and place specified in the summons, shall be prima facie proof that the said person failed to appear before the International Criminal Court.

PART V - CO-OPERATION AND JUDICIAL ASSISTANCE

29. Transfer of prisoner to give evidence or to assist in investigation

(1) Where the Attorney-General receives a request from the International Criminal Court or from its Prosecutor for the transfer of a prisoner in Mauritius into the custody of the International Criminal Court, for the purpose of giving evidence or assisting in an investigation, the Attorney-General shall transmit the request to the Commissioner of Prisons.
(2) Where the prisoner consents to the transfer, the Commissioner of Prisons may issue a warrant for the transfer of the prisoner into the custody of the International Criminal Court, in accordance with the arrangements made with the Registrar or the Prosecutor of the International Criminal Court.
(3) Any period of imprisonment served in the custody of the International Criminal Court by a prisoner transferred under this section shall be regarded as a period of imprisonment served in Mauritius for the purposes of calculating the remaining term of imprisonment of that person.
(4) The Commissioner of Prisons shall, where it appears that the term of imprisonment of the transferred prisoner will expire while that prisoner is still in the custody of the International Criminal Court, inform the Registrar of the Court in writing of the date on which that term of imprisonment will expire.

PART VI – OTHER FORMS OF ASSISTANCE

32. Request for enforcement of fine or forfeiture order

(1) Where the Attorney-General receives a request from the International Criminal Court for the enforcement of a fine or any order for forfeiture in Mauritius, he shall lodge with the Master and Registrar or present a certified copy of the order if where he is satisfied that the order is not subject to any review or appeal and that the request is supported by –
(a) a concise statement of the purpose of the request, and the assistance sought, including the legal basis and the ground for the request;
(b) as much information as possible about the location or identification of any person or place that shall be found in order for the assistance sought to be provided;
(c) a concise statement of the essential facts underlying the request;
(d) the reasons for and details of any procedure or requirement to be followed;
(e) such information as may be required by the law of Mauritius in order to execute the request; and
(f) any other information that is available and may be relevant in the
circumstances.

(2) The Master and Registrar with whom a certified copy of a request order is lodged under subsection (1) shall register such order in respect of the persons or items specified therein

PART VI - OTHER FORMS OF ASSISTANCE

33. Service of process

(1) Where the Attorney-General receives a request for assistance in effecting the service of any process or document, he shall send the request, together with the process or document, to the Master and Registrar for service on the person concerned.
(2) The Master and Registrar shall cause the process or document to be served on the person concerned in the manner specified in the request and shall send the return of service to the Attorney-General for transmission to the International Criminal Court

PART VI - OTHER FORMS OF ASSISTANCE

34. Registration of sentence or compensatory order

(1) Where the Attorney-General receives a request from the International Criminal Court for assistance in Mauritius to recover a fine to which a person has been sentenced in criminal proceedings in the International Criminal Court, or for the execution of an order for the payment of compensation for damages to any person made in such proceedings, he shall ascertain that –
(a) the sentence or order is final and not subject to review or appeal ;
(b) the person on whom the sentence was imposed or against whom the order was made, had the opportunity of defending himself ;
(c) the sentence or order cannot be satisfied in full except by confiscating and realising property; and
(d) the person concerned holds property in Mauritius.

(2) On being satisfied of the requirements of under subsection (1), the Attorney- General shall lodge with the Clerk of a Court in Mauritius having jurisdiction or the Master and Registrar, as the case may be, a certified copy of the document confirming the sentence or order.

(3) The Clerk of the Court or the Master and Registrar, as the case may be, shall forthwith give written notice of the registration of the sentence or order to the person on whom it was imposed or against whom it was made or who has effective control over the relevant property in Mauritius

PART VI - OTHER FORMS OF ASSISTANCE

35. Registration of forfeiture order

(1) Where the Attorney-General receives a request for assistance in executing a forfeiture order in Mauritius made by the International Criminal Court, he shall ascertain that –
(a) the order is final and not subject to review or appeal;
(b) the person against whom the order was made had the opportunity of defending himself;
(c) the order cannot be satisfied in full except by confiscating and realising property;
(d) the order is enforceable by the International Criminal Court;
(e) the person concerned holds property in Mauritius; and
(f) the request is supported by –
(i) a concise statement of the purpose of the request, including the legal basis and the ground for the request;
(ii) as much information as possible about the location or identification of the property in question;
(iii) a concise statement of the essential facts underlying the request ;
(iv) the reasons for and details of any procedure or requirement to be followed; and
(v) any other information that is available and may be relevant in the circumstances.

(2) On being satisfied that the requirements of subsection (1) have been complied with, the Attorney-General shall lodge with the Clerk of a Court in Mauritius having jurisdiction or the Master and Registrar, as the case may be, a certified copy of the forfeiture order.

(3) The Clerk or the Master and Registrar of the Court registering a forfeiture order shall forthwith issue a notice in writing, addressed to the person against whom the order has been made, to the effect that –
(a) the order has been registered at the Court concerned; and
(b) the said person may, within the prescribed period and in the prescribed manner, apply to that Court for the setting aside of the registration of the order.

(4) (a) Where the person against whom the forfeiture order has been made is present in Mauritius, the notice referred to in subsection (3) shall be served on the person in the prescribed manner.
(b) Where the said person is not present in Mauritius, he shall be informed of the registration of the forfeiture order in such manner as the Court may determine.

PART VI - OTHER FORMS OF ASSISTANCE

37. Setting aside registration of forfeiture order

(1) On the application of any person against whom the registration of a forfeiture order in terms of section 35 has been made, the registration may be set aside if the Court at which it was registered is satisfied that –
(a) the order was registered in breach of this Act;
(b) the order is subject to review or appeal;
(c) the person against whom the order was made, through no fault on his part, did not appear at the proceedings concerned or did not receive notice of the said proceedings as prescribed by the Statute or, if no such notice has been prescribed, that he did not receive reasonable notice of the proceedings so as to enable him to defend himself at the proceedings; or
(d) the order has already been satisfied.

(2) The Court hearing an application referred to in subsection (1) may, at any time, postpone the hearing of the application to such date as it may determine

PART VI - OTHER FORMS OF ASSISTANCE

38. Entry, search and seizure

(1) The International Criminal Court or the Prosecutor of the International Criminal Court shall submit any request for assistance in the entering and searching of premises, the search of a person and the seizure of a book, document or object that has a bearing on a crime or an offence committed within the jurisdiction of the International Criminal Court, to the Attorney-General in writing.

(2) The request shall contain sufficient information that there is reasonable ground for believing that the entry, search or seizure of the book, documents or object has a bearing on a crime or an offence committed within the jurisdiction of the International Criminal Court or that such entry, search or seizure of a book, document or object is necessary to determine if such a crime or such an offence has been so committed and that an investigation in that respect is being conducted by the Prosecutor of the International Criminal Court .

(3) On receipt of such a request, the Attorney-General shall forward it to the Commissioner of Police with a view to obtaining the necessary warrant required in the circumstances.

(4) A Magistrate may, if it appears to him from the information submitted that there is reasonable ground for believing that any book, document or object, which has a bearing on the investigation concerned, is in the possession or under the control of any person or on or in any premises within the Magistrate’s area of jurisdiction, issue the necessary warrant required in the circumstances.

(5) The warrant shall clearly specify the acts which may be performed under it by the police officer to whom it is issued.

(6) The warrant shall remain valid until –
(a) it is executed;
(b) it is cancelled by the person who issued it or by any person with similar authority;
(c) the expiry of 3 months from the date of its issue; or
(d) the purpose for which the warrant was issued no longer exists, whichever may occur first.

(7) A police officer shall, immediately before executing the warrant –
(a) identify himself to the person referred to in the warrant or the owner or person in control of the premises, if the person is present;
(b) hand over to the person a copy of the warrant or, if the person is not present, affix that copy to a prominent place on the premises; and
(c) supply the person at his request with particulars regarding his authority to execute the warrant.

(8) Every entry, search and seizure under this section shall be –
(a) conducted with strict regard to decency and order, including the protection of a person’s right to dignity, freedom, security and privacy; and
(b) executed by day unless the execution by night is justifiable and necessary.

(9) The seizure of a book, document or object under this section shall be effected by removing it from the premises concerned or, if that removal is not reasonably practicable, by sealing or otherwise safeguarding it on or in the premises.

(10) A police officer who may under this section enter and search any premises –
(a) shall, immediately before the entry, demand admission to the premises and make known the purpose of the entry and search, unless there is reasonable ground for believing that a book, document or object in respect of which the search is being conducted, may be destroyed, disposed of or tampered with if that admission is first demanded and that purpose is made known;
(b) may use such force as is reasonably necessary to overcome resistance to the entry or search or the seizure of a book, document or object under this section;
(c) may utilise or request the assistance of any person to identify any book, document or object which has a bearing on the alleged crime or offence or to conduct the entry or search or the seizure of any book, document or object under this section.

(11) A person from whose possession or control a book, document or object has been removed under this section may, at his own expense and under the supervision of a police officer, make a copy or take an extract from it.

(12) A police officer who removes a book, document or object from any premises under this section shall issue a receipt to the person who is the owner, or in possession or in control, of the premises or, if that person is not present, affix it to a prominent place on the premises.

(13) Where, during the conduct of a search or the carrying out of a seizure under this section, a person claims that a book, document or object found on or in the premises contains privileged information and refuses the examination or removal of the book, document or object, the police officer conducting the search or carrying out the seizure shall, if he is of the opinion that the book, document or object contains information which has a bearing on the alleged crime or offence, seize the book, document or object and submit it to the Magistrate having jurisdiction for safe custody until a Court has made a ruling on the question whether the information is privileged or not.

(14) Where the information is found not to be privileged, the book, document or object seized under this section shall be handed over to the International Criminal Court or the Prosecutor of the International Criminal Court.

(15) Where criminal proceedings, in respect of which a book, document or object has been seized under this section, are not instituted within a reasonable time after the seizure or it appears that the book, document or object is not required in criminal proceedings for the purposes of evidence or an order of the International Criminal Court, the Attorney-General shall request the International Criminal
Court or the Prosecutor of the International Criminal Court to return the book, document or object to the person from whom it was seized.

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 State ;
(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 Mauritius ;
(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.

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.

PART III - FORMS OF MUTUAL ASSISTANCE

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

(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.

PART III - FORMS OF MUTUAL ASSISTANCE

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.

PART III - FORMS OF MUTUAL ASSISTANCE

12. Foreign request for enforcement of foreign restraining order or confiscation

(3) The Supreme Court shall register the foreign confiscation order where it is satisfied that -

(a) at the time of registration, the order is in force in the foreign State, or before the international criminal tribunal ; and

(b) in the case of a person who did not appear in the proceedings in the foreign State, or before the international criminal tribunal -

(i) the person was given notice of the proceedings in sufficient time to enable him to defend himself ; or
(ii) the person had absconded, or died before such notice could be given.

PART III - FORMS OF MUTUAL ASSISTANCE

13. Effect of registration of foreign confiscation order or foreign restraining order

(1) Subject to subsections (2) and (3), where an order has been registered under section 12 and the Supreme Court is notified that it has been established to the satisfaction of a foreign court or international tribunal that the property or any part thereof constitutes the proceeds of crime of a serious offence or of an international tribunal offence, order that the property be confiscated and be vested in the State until such arrangement is made under section 19 by the Central Authority with the foreign State.

(2) The Court may make an order under subsection (1) on such conditions as it may deem fit to impose, including any condition as to payment of debts, sale, transfer or disposal of any property.

(3) Any person who claims to have an interest in property subject to an order registered under section 12 shall, within 21 days from the last publication of the registration under section 12, apply to the Court for an order under subsection (4).

(4) Where the Court is satisfied that the applicant under subsection (3) -

(a) was not in any way involved in the commission of the offence in respect of which the confiscation or restraining order was sought ; and
(b) acquired the property without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of acquisition tainted property,
the Court shall make an order declaring the nature of the interest of the applicant.

PART III - FORMS OF MUTUAL ASSISTANCE

15. Foreign request for the location of the proceeds of crime

(1) Where-

(a) a foreign State requests the Central Authority to assist in locating property believed to be the proceeds of a serious crime committed in that State ; or

(b) an international criminal tribunal requests the Central Authority to assist in locating property believed to be the proceeds of an international criminal tribunal offence,
the Central Authority may apply to a Judge in Chambers for an order -

(i) that any information relevant to -
(A) identifying, locating or quantifying any property ; or
(B) identifying or locating any document necessary for the transfer of any property, belonging to, or in the possession or under the control of that person be delivered forthwith to the Central Authority ; or

(ii) that a bank or financial institution forthwith produces to the Central Authority all information obtained by it about any business transaction relating to the property for such period before or after the date of the order as the Judge may direct.

(2) Notwithstanding section 26 of the Bank of Mauritius Act 2004, section 64 of the Banking Act 2004, section 33 of the Financial Services Development Act 2001 and section 6(7) and (8), a Judge in Chambers may grant an order under subsection (1) on being satisfied that -
[Amended 14/05]
(a) the document 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 authorises the granting of such an order in circumstances similar to the one relating to the request.

PART IV - MISCELLANEOUS

18. Certificates relating to foreign documents

(1) The Central Authority may certify that a foreign document was obtained as a result of a request made to a foreign State or international criminal tribunal pursuant to section 4.

(2) It shall be presumed, unless evidence sufficient to raise reasonable doubt is adduced to the contrary, that the foreign document specified in the certificate was obtained as a result of that request.

(3) A foreign document referred to in this section shall be admissible in evidence in a Court in Mauritius.