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.

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.