TITLE II

CHAPTER I
INTERNATIONAL LETTERS ROGATORY FROM ABROAD

Art. 4
(Form and content of requests)

1. Requests for assistance shall indicate as follows:
a) the authority making the request and, if different, the authority competent in respect of criminal proceedings;
b) the object of and the reason for the request;
c) the offence which the requesting State prosecutes;
d) a brief summary of the facts, unless the object of the request consists of a request for service;
e) where possible, the identity and the nationality of the person concerned, and
f) where necessary, the name and address of the person to be served.

2. The request for judicial assistance and annexed documents shall be transmitted accompanied by their translation into Italian.

3. Evidence and documents transmitted pursuant to this Law shall not require any form of authentication.


Art. 5
(Irregular requests)

1. If the request does not comply with the provisions of the preceding article, or the information contained therein is not sufficient to allow the Republic of San Marino to deal with said request, the Law Commissioner shall request the judicial authorities of the requesting State to modify the request or to complete it with additional information, subject to the special procedure referred to in Article 9 of this Law.

2. If the judicial authorities of the requesting State do not modify the request within the time limit of one year of receipt of the request for additional information, the irregular request shall be filed.


Art. 6
(Transmission of requests)

1. Without prejudice to the different transmission procedures provided for by the bilateral conventions in force for the Republic of San Marino, the request and annexed documents shall be addressed directly by the judicial authorities of the requesting State to the Single Court of the Republic of San Marino and at the same time a copy thereof shall be sent to the Secretary of State for Justice.


Art. 7
(Judge responsible for letters rogatory received from abroad)

1. The judge responsible for letters rogatory shall be the Law Commissioner.


Art. 8
(Judicial work)

1. With the exception of the case of suspension of the request, the Law Commissioner shall rapidly execute the letter rogatory and, in any case, within and not later than 60 days of receipt, by adopting the relevant order of exequatur.

2. In the event of irregular letters rogatory, the time-limit of 60 days envisaged by the preceding paragraph shall run from receipt of the amendments and/or information requested to complete the request.

3. Execution of the request shall be refused:

1) if the acts requested are contrary to the principles enshrined in the Declaration of Citizens’ Rights and Fundamental Principles of San Marino constitutional order;

2) if the acts requested are expressly prohibited by law;

3) if the acts requested prejudice the sovereignty, security or other essential interests of the Republic of San Marino;

4) if the request concerns an offence considered a political offence or an offence connected with a political offence in the Republic of San Marino;

5) if the request concerns the same fact and the same person against whom the San Marino judicial authorities have issued a final judgement.

6) if the letter rogatory concerning search or seizure of property is submitted on the basis of offences that are not punishable under both the law of the requesting State and the law of the Republic of San Marino, or if the request is not consistent with the law of San Marino;

7) if the letter rogatory concerns the summons of a witness, expert or defendant before the foreign judicial authorities and the requesting State does not provide any appropriate guarantee in regard to the immunity of the summoned person.


Art. 9
(Reciprocity)

1. When the request is submitted by a State with which no international conventions exist on these matters, the Law Commissioner shall forward to the Secretary of State for Justice, within 30 days of receipt of the request, a technical report stating whether the request submitted complies with the legal requirements.

2. Further to the decision taken by the Congress of State, the Secretary of State for Justice may refuse to execute the letter rogatory if the requesting State does not provide any adequate guarantee of reciprocity. Further to the decision taken in this regard by the Congress of State, the Secretary of State for Justice shall demand a guarantee of reciprocity from the requesting State, if so required by the circumstances.

3. In the event of an irregular request, the request for additional information shall be submitted subsequent to the Congress’s decision whether to grant the cooperation requested.

4. The decision of the Congress of State on the basis of which the execution of a request is accepted or denied to a State with which no international conventions exist on these matters, and the relevant communication of the Secretary of State for Justice cannot be challenged.

5. If the Secretary of State for Justice informs the Law Commissioner that the Republic of San Marino intends to execute a letter rogatory for a State with which no international conventions exist
relating to these matters, the time limit of 60 days referred to in Article 8 of this Law to issue the order of exequatur shall run from receipt of the communication by the Secretary of State.


Art. 10
(Suspension)

1. The execution of the letter rogatory shall be suspended by the Law Commissioner by reasoned order, if it is likely to be detrimental to investigations in criminal proceedings pending in the Republic of San Marino.


Art. 11
(Partial acceptance of the request)

1. Before rejecting or returning a letter rogatory, the Law Commissioner shall assess, after having consulted with the judicial authorities of the requesting State, where necessary, whether the request may be partially accepted.


Art. 12
(Principle of speciality)

1. The Law Commissioner shall grant judicial assistance, by ordering that the results of investigations, information, evidence and documents transmitted are not used or transmitted to third parties by the requesting State for purposes other than those specified in the request without prior consent.


Art. 13
(Lex loci)

1. The Republic of San Marino shall execute letters rogatory in the manners provided for by its legislation.

2. The acquisition of copies of documents constitutes seizure.

3. Until the order of exequatur is issued, unless the requesting State requests otherwise, the provisions of Article 5, paragraphs 1 and 2 of Law no. 93 of 17 June 2008 shall apply, without prejudice to Article 30, last paragraph of this Law.


Art. 14
(Derogations from the principle of lex loci)

1. If the requesting State expressly requests that witnesses or experts give evidence on oath, the Law Commissioner shall comply with the request only if the law of San Marino does not prohibit it.

2. If the requesting State expressly so requests and the San Marino law envisages it, any other evidence may be acquired in the manners requested.


Art. 15
(Form of documents requested)

1. The Law Commissioner shall transmit only certified copies or certified photocopies of records or documents requested.

2. If the requesting State expressly requests the transmission of originals, the request shall be executed only if it is possible. Furthermore, the requesting State shall be required to return them as soon as possible, unless the Republic of San Marino gives them up.

3. The Law Commissioner may delay the handing over of any original records or documents requested, if it requires said records or documents in connection with pending criminal proceedings.


Art. 16
(Information to the requesting State)

1. On the express request of the requesting State, the Law Commissioner shall inform it of the date and place of execution of the letter rogatory.


Art. 17
(Confidentiality)

1. Outside what is necessary to execute the request, the requesting State may demand that the Republic of San Marino keeps the facts to which the request refers confidential.

2. If the execution of the request entails under San Marino law to adopt procedural guarantees that are not consistent with the confidentiality requested, the Law Commissioner shall immediately inform the requesting State thereof.

3. If a criminal file is opened in the Republic of San Marino further to the confidential transmission, the provisions of Article 5, paragraphs 1 and 2 of Law no. 93 of 17 June 2008 shall be applied for the sole purposes of international cooperation and for the period of 3 months.

4. If an autonomous criminal file is opened in the Republic of San Marino following the confidential transmission and the competent judge considers that the provisional secrecy regime shall be applied, the provisions and time limits envisaged by Article 5, paragraphs 1 and 2 of Law no. 93 of 17 June 2008 (periods during which any period granted under the previous paragraph is not computed) shall be implemented.


Art. 18
(Expenses)

1. Ordinary expenses for the execution of the request shall be burdened by the Republic of San Marino.

2. The refunding of the expenses incurred by the attendance of experts and witnesses in the territory of the requested State and the transfer of a person in custody shall be an exception to the general free-of-charge principle.


Art. 19
(Service of writs and records of judicial decisions)

1. The Republic of San Marino shall effect service of writs and records of judicial decisions which are transmitted for this purpose by the requesting State.

2. If the requesting State expressly so requests, the Law Commissioner shall order that service is effected in one of the manners provided for the service of analogous documents under the domestic law, or in a special manner envisaged by San Marino law.

3. Proof of service shall be given by means of a receipt dated and signed by the person served or by means of a declaration made by the Republic of San Marino that service has been effected and stating the form and date of such service.

4. One or other of these documents shall be sent to the requesting State. If the requesting State so requests, the Republic of San Marino shall state whether service has been effected in accordance with its own law. If service cannot be effected, the reasons shall be communicated immediately by the Law Commissioner to the requesting State.


Art. 20
(Appearance of witnesses and experts)

1. Without prejudice to contrary provisions contained in the bilateral agreements in force for the Republic of San Marino, a witness or expert who has failed to answer a summons to appear, service of which has been requested, shall not be subjected to any punishment or measure of restraint, unless subsequently he voluntarily enters the territory of the requesting State and is there again duly summoned.


Art. 21
(Refunding of expenses for witnesses or experts)

1. With the exception of different criteria contained in the bilateral conventions in force for the Republic of San Marino, the allowances to be paid and the travelling and subsistence expenses to be refunded to a witness or expert by the requesting State shall be calculated as from his place of residence and shall be at rates at least equal to those provided for in the scales and rules in force in the country where the hearing is intended to take place.


Art. 22
(Immunity of witnesses or experts)

1. No witnesses or experts, whatever their nationality, appearing before the judicial authorities of the requesting State in response to a summons, shall be prosecuted or detained or subjected to any other restriction of their personal liberty in the territory of the requesting State for acts or convictions anterior to their departure from the territory of the Republic of San Marino.

2. The immunity provided for in this Article shall cease when the witness or expert, having had the opportunity to leave the territory of the requesting State during a period of fifteen days from the date on which his presence is no longer required by the judicial authorities, has nevertheless remained in the territory, or having left it, has voluntarily returned.


Art. 23
(Service of a summons on a prosecuted person)

1. A summons to appear relating to a prosecuted person who is in the territory of the Republic of San Marino shall be transmitted to the competent authority of the Republic of San Marino at least 40 days before the date set for appearance.


Art. 24
(Immunity of the prosecuted person)

1. A person, whatever his nationality, summoned before the judicial authorities of the requesting State to answer for acts forming the subject of proceedings against him, shall not be prosecuted, detained or subjected to any other restriction of his personal liberty for acts or convictions anterior to his departure from the territory of the Republic of San Marino and not specified in the summons.

2. The immunity provided for in this article shall cease when the prosecuted person, having had the opportunity to leave the territory of the requesting State during a period of fifteen days from the date on which his presence is no longer required by the judicial authorities, has nevertheless remained in the territory, or having left it, has returned.


Art. 25
(Appearance of a detained person)

1. Any detained person whose personal appearance as a witness or for purposes of confrontation is applied for by the requesting State shall be temporarily transferred to the territory of the State where the hearing is intended to take place, provided that he shall be sent back as soon as possible and subject to the provisions relating to the immunity envisaged by Articles 22 and 24 of this Law in so far as these are applicable.

2. Transfer shall be postponed if the presence of the detained person is necessary in criminal proceedings pending in the territory of the Republic of San Marino.

3. In the case provided for in the preceding paragraph and in accordance with the requirements envisaged for the execution of letters rogatory, transit of the detained person through the territory of a third State shall be granted on application, accompanied by all necessary documents and addressed by the Ministry of Justice of the requesting State to the Ministry of Justice of the State through whose territory transit is requested.

4. The transferred person shall remain in custody in the territory of the requesting State and, where applicable, in the territory of the State through which transit is requested.

5. The period of detention served by the detained person who is transferred abroad to take part in the hearing requested shall be computed as a period served for the purposes of the domestic conviction.


Art. 26
(Handing over and return of property)

1. The Law Commissioner may delay the handing over of any property requested, if said property is necessary in connection with criminal proceedings pending in the Republic of San Marino.

2. Any property handed over in execution of letters rogatory shall be returned by the requesting State to the Republic of San Marino as soon as possible, unless the latter waives the return thereof.


Art. 27
(Exchange of sentences of conviction)

1. Further to specific requests submitted by competent foreign judicial authorities, the Republic of San Marino shall provide information regarding criminal sentences entered in the judicial records.


Art. 28
(Return of the request)

1. Subject to the different modalities of direct transmission envisaged in the provisions of the bilateral conventions in force for the Republic of San Marino, letters rogatory shall be returned through the Secretariat of State for Justice, which sends them back to the Ministry of Justice of the requesting State.

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.