Chapter 4. Special provisions concerning different measures of legal assistance

Taking of evidence in courts

Taking of evidence in Swedish courts

Section 2

A request for taking of evidence in a Swedish court that involves holding a hearing, the production of written evidence or the conduct of a viewing is executed by a district court.

The matter shall be regarded as a taking of evidence outside a main hearing. The parties shall be notified of the time and place for the taking of evidence but only need to be summoned if the party shall be heard or otherwise satisfy something at the taking of evidence.

Section 3

At a taking of evidence a public defence counsel may be appointed in accordance with Chapter 21 of the Code of Judicial Procedure for the suspect or the accused also in other cases than those referred to in Chapter 2, Section 13, if there are special reasons.

Section 4

A judge at the foreign court or representative for the authority that requested the taking of evidence may participate at the taking of evidence and may, with the permission of the court, present questions directly to the person being heard.

Section 5

If the requesting state has presented a request for this, a Swedish prosecutor may participate at the taking of evidence for the purpose of protecting the interests of the requesting state.


Taking of evidence in foreign courts

Section 6

In a case or a matter at a Swedish court, the court may decide that evidence shall be taken in a foreign court. Such taking of evidence may relate to conduct of a viewing, written evidence or hearing of a witness, expert, party, the aggrieved person or the person referred to in Chapter 36, Section 1, second and third paragraphs of the Code of Judicial Procedure.

Section 7

If measures referred to in Chapter 23, Sections 13-15, of the Code of Judicial Procedure shall be taken in a foreign court and the foreign state requires that the request first shall be considered by a court in Sweden, a district court may at the request of a prosecutor decide that such measures shall be taken abroad.

Chapter 4. Special provisions concerning different measures of legal assistance

Provisional attachment, seizure and search of premises and other measures under Chapter 28 of the Code of Judicial Procedure

The request and procedure

Section 14

If judgment has been issued in the foreign state, a copy of the judgment shall be annexed to the request for provisional attachment or seizure. A request for seizure as referred to in Section 23 should, when appropriate, contain information about when prosecution will be instituted or a judgment can be issued in the requesting state.

Section 15

A request for provisional attachment in Sweden is executed by a prosecutor. The prosecutor shall immediately consider whether the perquisites of the measure exist and in such case hand over the request to the court for a decision.

Section 16

A request for seizure in Sweden, or for search of premises in Sweden to search for property that is subject to seizure, is executed by a prosecutor.

Seizures implemented shall be promptly notified to the court for consideration. The court shall, as soon as it can take place, hold a hearing on the matter. The provisions of Chapter 24, Section 17, second paragraph of the Code of Judicial Procedure shall be applied at the hearing.

Section 17

Representatives for the requesting authority may participate at the hearing and may, with the permission of the court, present questions to the person affected by the measure.

Section 18
A request that other measures under Chapter 28 of the Code of Judicial Procedure than referred to in Section 16 shall be taken in Sweden is dealt with by a prosecutor.


Seizure and transfer of seized property to another state

Section 19

Property may be seized and transferred to the requesting state if the property may reasonably be assumed :
– to be of importance for the investigation of the act
– to have been deprived from someone by an offence, or
– to be confiscated by reason of an offence, if the property could have been confiscated under Swedish law in a trial in Sweden and there are special reasons to transfer the property to the requesting state.

Section 20

If the act to which the request relates does not correspond to an offence according to Swedish law, a search of premises in accordance with Section 16 may be made and property seized and transferred to the requesting state, provided that the request has been made by a state that is a Member of the European Union or by Norway or Iceland and that imprisonment may be imposed for the act in the requesting state.

In a case of legal assistance as referred to in Chapter 1, Section 5, first paragraph, item 1, a search of premises may be conducted and property may be seized and transferred to the requesting state if the act corresponds to an offence for which imprisonment of six months or more is laid down by Swedish law or by the law of the requesting state. What has just been said does not apply if the first paragraph is applicable.

Section 21

The court shall consider whether the seizure is lawfully founded and whether the property shall be transferred to the requesting state.

Section 22

Decisions to transfer seized property to another state are executed by the prosecutor.


Seizure and provisional attachment to secure enforcement in Sweden of a foreign confiscation

Section 23

If confiscation that is decided in another state can be enforced in Sweden, and it can reasonably be anticipated that enforcement in Sweden of the foreign confiscation decision would otherwise be made more difficult,
1. property that has been confiscated or that can reasonably be assumed to be confiscated as a result of an offence may be seized, or
2. a decision on provisional attachment may be made for so much of the assets of the person concerned as correspond to the value of that which has been confiscated or reasonably may be assumed to be confiscated.

Section 24

When the court decides on provisional attachment or confirms a seizure executed, the court shall decide how long the measure may continue at most. The time determined may be extended if there is reason to do so.

If there is no longer reason for provisional attachment or seizure, the court shall revoke the measure. Before the provisional attachment or seizure is revoked, the court shall give the requesting state an opportunity to express its views, unless this is manifestly unnecessary. In other matters, the measures shall remain in force until such time as a request for execution is considered.

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.