EU–Japan mutual legal assistance

SUMMARY OF:

Agreement between the EU and Japan on mutual legal assistance in criminal matters

Decision 2010/616/EU concluding the Agreement between the EU and Japan on mutual legal assistance in criminal matters

WHAT IS THE AIM OF THE AGREEMENT AND THE DECISION?

The agreement aims to establish more effective cooperation between the EU and Japan in the field of mutual legal assistance in criminal matters.

The agreement is the first such ‘self-standing’ agreement between the EU and a non-EU country. Until it was concluded, no individual EU country had concluded such an agreement with Japan.

The decision concludes the agreement on behalf of the EU.

KEY POINTS

The agreement applies to the request and supply of mutual legal assistance in relation to investigations, prosecutions and other proceedings in criminal matters. It does not apply to extradition, transfer of proceedings* in criminal matters and enforcement of sentences, apart from confiscation.

The legal assistance consists of:

taking testimonies, including by videoconference;
searching and seizing items;
obtaining information on bank accounts;
examining and locating or identifying persons, items or places;
providing items held by the authoritiesin one party to the authorities in the other party;
serving documents (delivering a legal document to parties involves in legal proceedings);
transferring persons in custody for the purpose of testimony;
freezing or seizing and confiscating proceeds.

Each EU country and Japan must designate a central authority with responsibility for sending, receiving and responding to requests for assistance. These authorities are also responsible for executing the requests or for transmitting the requests to the authorities with jurisdiction to execute them.

Requests for assistance

The country making a request for assistance must do so in writing. In urgent cases, the request may be made by other reliable means of communication. Requests for assistance must contain specific information as set out in the agreement.

The requested country may ask for additional information if necessary for executing the request for assistance.

The request, together with any other documents, must be accompanied by a translation in the official language of the requested country or in another language as agreed by that country.

Execution of requests

The requested country:

must execute the request for assistance as swiftly as possible and in accordance with its national law;
may postpone the execution of a request, or make execution subject to specific conditions, if it could interfere with an ongoing investigation, prosecution or other proceeding;
must transmit the result of the execution, together with any testimonies or items obtained, to the requesting country. If it cannot execute a request in whole or in part, it must provide the requesting country with the reasons why;
may refuse, under certain conditions, to provide assistance, for example if the request concerns an offence that is punishable by death in the requesting country. When refusing assistance, the requested country must provide the reasons why.

Testimonies and statements

The requesting country may only use testimonies, statements, items or information in the investigations, prosecutions or other proceedings for which it was requested.

The requested country may require confidentiality or impose other conditions on the use of these data. It may also impose conditions on the transport, maintenance and return of items requested.

To take testimonies or statements, the requested country may use coercive measures if necessary, provided that this is justifiable under its national law. In cases where the person concerned is to be heard as a witness in proceedings of the requesting country, the requested country may allow its competent authorities to take the testimony or statement by videoconference.

Persons, items and places

If necessary and justifiable under its national law, the requested country may use coercive measures to obtain items and to examine persons, items or places.

The requested country must provide the requesting country with:

information related to the bank accounts of the person under investigation, to the extent that the bank in question possesses it;
any publicly available items that its legislative, administrative or judicial authorities possess;
any non-public items, such as criminal records, that these authorities possess, to the extent and under the same conditions as they are available to its investigative and prosecuting authorities.

The requested country must serve documents and summons (an order to appear before a court) to persons requested to appear before the competent authorities of the requesting country. If the person in custody is requested to give evidence, the requested country may temporarily transfer that person to the requesting country. However, the person to be transferred must first give his/her consent and the transfer must be permitted under the law of the requested country.

Confiscation of proceeds

The requested country should assist the requesting country in proceedings related to the freezing or seizure and confiscation of proceeds of crime, as far as it is permitted by its national law.

The requesting country must provide the decision of a court or other judicial authority that imposes the confiscation, together with its request. If the proceeds are in the custody of the requested country, it may transfer them in whole or in part to the requesting country.

FROM WHEN DOES THE AGREEMENT APPLY?

It has applied since 2 January 2011.

BACKGROUND

For more information, see:

Mutual legal assistance and extradition (European Commission).

KEY TERMS

Transfer of proceedings: a request from one country to another, asking the requested country to initiate legal proceedings for an act that is a punishable offence in both the requesting and the requested country.

MAIN DOCUMENTS

Agreement between the European Union and Japan on mutual legal assistance in criminal matters (OJ L 39, 12.2.2010, pp. 20-35)

Council Decision 2010/616/EU of 7 October 2010 on the conclusion of the Agreement between the European Union and Japan on mutual legal assistance in criminal matters (OJ L 271, 15.10.2010, p. 3)