LegalizeLoi du 8 août 2000 sur l'entraide judiciaire internationale en matière pénale
Unofficial English translation,
French version shall prevail.
Art. 1.
This law shall apply to requests for mutual assistance in criminal matters, hereinafter referred to as "requests for mutual assistance", which seek to have objects, documents, funds and property of any kind seized in the Grand Duchy, which seek to have a communication of information or documents ordered in accordance with articles 66-2 to 66-4 of the Criminal Procedure Code, which seek to have a search or any other taking of evidence of a similar degree of constraint ordered and which emanate from:
- judicial authorities of requesting States which are not bound to the Grand Duchy of Luxembourg by an international agreement on mutual legal assistance;
- judicial authorities of requesting States which are bound to the Grand Duchy of Luxembourg by an international agreement on mutual legal assistance, unless the provisions of this Law are contrary to those of the international agreement;
- an international judicial authority recognised by the Grand Duchy of Luxembourg.
Art. 2.
(1)
Subject to the special provisions laid down by conventions providing for the possibility of direct transmission, requests for assistance shall be addressed by the competent authorities of the requesting State to the Luxembourg General State Prosecutor.
(2)
Following their execution, they shall either be returned directly or through the official channel.
(3)
Where the requesting State sends the request for assistance directly to the Luxembourg judicial authorities or the Minister of Justice, they must forward the request to the General State Prosecutor in a timely fashion.
(4)
After having examined the aspects the request for mutual assistance falling under his or her competence and if he or she considers that there are no grounds for not doing so, the General State Prosecutor shall forward the request to the judicial authorities for execution.
(5)
However, where the case on which the request for mutual assistance is based appears to be serious and where there is an urgency due to, in particular, a risk of loss of evidence, the competent judicial authority which was seized may carry out the requested investigative duties.
Art. 3.
The General State Prosecutor may refuse mutual legal assistance in the following cases:
- if the request for mutual assistance is likely to affect the sovereignty, security, public order or other essential interests of the Grand Duchy of Luxembourg;
- if the request for mutual assistance relates to offences which may be qualified under Luxembourg law either as political offences or as offences related to political offences;
- if the request for mutual assistance exclusively relates to offences pertaining to taxes, customs or exchange under Luxembourg law.
No appeal may be lodged against the decision of the General State Prosecutor.
Art. 4.
Requests for mutual assistance that do not contain the following information are refused:
the authority from which the request emanates,
the purpose and reason for the request,
the date and place of the commission of the facts, a summary statement of the facts and the link between those facts and the purpose of the requested taking of evidence,
as far as possible, the identity and nationality of the person concerned,
the name and address of the recipient, if applicable,
the text containing the charges and the related sanctions,
a French, German or English translation of the request for mutual assistance and of the documents to be produced.
The execution of a request for mutual assistance shall also be refused if, without having to carry out a substantive examination, it is foreseeable, in the light of the requirements set out in article 4, point c), that the means to be used are not suitable for achieving the objective referred to in the request for mutual assistance or go beyond what is necessary to achieve it.
In the event that the request for mutual assistance is incomplete or the information provided by the authorities of the requesting State is insufficient, additional information may be requested.
Requests for mutual assistance that do not meet the conditions of this article shall be refused
- by the General State Prosecutor, subject to the powers of the other judicial authorities, in the event that the Grand Duchy of Luxembourg is not bound to the requesting State by an agreement on mutual legal assistance;
- by the judicial authorities, in the event that the Grand Duchy of Luxembourg is bound to the requesting State by an agreement on mutual legal assistance.
Art. 5.
The request for mutual assistance must meet the following conditions:
it must be issued by a judicial authority competent under the law of the requesting State;
the act on which the request is based must be able to be classified as a felony or misdemeanour, punishable by a custodial sentence of a maximum of at least one year under Luxembourg law and under the law of the requesting State;
the person concerned by the request must not have been tried in the Grand Duchy of Luxembourg for the same act;
the Luxembourg judicial authorities must be able to undertake the requested measure for the purpose of investigations or prosecutions under Luxembourg law as if they were dealing with a similar domestic case;
unless otherwise provided for in a norm of international law, the limitation period for prosecution must not have passed, neither under Luxembourg law nor under the law of the requesting State.
Acts interrupting or suspending the limitation period undertaken in the requesting State under the law of that State shall be taken into account for the purpose of calculating the limitation period for prosecution under Luxembourg law.
Art. 6.
The execution of mutual assistance measures shall be entrusted to the authority which would be competent if the offence had been committed in the Grand Duchy of Luxembourg.
Art. 7.
Credit institutions and their directors and employees may not disclose to the customer concerned or to third parties that the seizure of documents or the communication of documents or information has been ordered by the investigative judge in execution of a request for mutual assistance, without the express prior consent of the authority that ordered the measure.
Those who knowingly violated this obligation shall be punished by a fine ranging from EUR 1 250 to EUR 1 250 000.
Art. 8.
Cases of mutual legal assistance are treated as urgent and priority cases. The requested authority shall inform the requesting authority of the status of the procedure and of any delays.
Art. 9.
(1)
The Council Chamber shall examine ex officio the "formal" regularity of the procedure.If it finds a cause of invalidity, it shall declare the act, as well as its subsequent acts, null and void.
(2)
If objects or documents have been seized or if objects, documents or information have been communicated to the investigative judge, their transmission to the requesting State shall be subject to the agreement of the Council Chamber.
(3)
The Council Chamber shall be seized by an indictment of the State Prosecutor in order to check the regularity of the proceedings and to transmit objects, documents or information.
(4)
With the exception of persons to whom the measure ordered by the request for mutual assistance has not been disclosed pursuant to article 7, the person concerned by the investigation, as well as any concerned third party who can prove a legitimate personal interest, may file a brief containing observations on the regularity of the proceedings with the Clerk of the Council Chamber of the District Court.
A request for restitution may also be made in the brief containing the observations on the regularity of the proceedings.
Each brief must be lodged, under penalty of foreclosure, within ten days of notification of the document to the person against whom the measure ordered is executed.
A brief filed by any of the persons referred to in subparagraph 1 of this paragraph must, under penalty of inadmissibility, be signed by a lawyer at the Court and must contain an election of the law firm as domicile. This election of domicile shall produce its effects for as long as there has not been a new election of domicile.
(5)
The persons entitled to file a brief, their directors or employees shall not communicate the existence or content of the brief to any person to whom the measure ordered by the request for mutual assistance has not been disclosed pursuant to article 7, all under penalty of the fine provided for in article 7.
Art. 10.
(1)
The Council Chamber shall decide, within twenty days of its referral, by a single order on the regularity of the proceedings, on the transmission to the requesting State of objects, documents or information and on the observations and requests for restitution made in the briefs submitted on the basis of article 9.
(2)
It shall order the restitution of objects, documents, funds and property of any kind that are not directly related to the facts on which the request is based.
(3)
A copy of the order shall be communicated to the General State Prosecutor and notified to the lawyer in whose office the domicile was elected pursuant to article 9.
(4)
No appeal may be lodged against the order of the Council Chamber.
(5)
The persons who filed a brief, their directors or employees shall not communicate the existence or content of the order to any person to whom the order by the request for mutual assistance has not been disclosed pursuant to article 7, all under penalty of the fine provided for in article 7.
Art. 11.
(1)
If property other than that referred to in article 9 has been seized in execution of a request for mutual assistance, the owner and any person having rights in such property may claim the return of the property, up until the criminal court has been seized of a request for the enforcement of a foreign confiscation or restitution order relating to such property.
(2)
To this end, he or she shall file an application with the Clerk of the Council Chamber of the competent district court, signed by a lawyer at the Court in whose office his domicile was elected, all under penalty of inadmissibility of the application.
This election of domicile shall produce its effects for as long as there has not been a new election of domicile. The convocations or notifications shall be made to the elected domicile.
(3)
Where an application under paragraphs (1) and (2) of this section has been filed, the following procedure shall be followed:
At least eight days before the hearing, the clerk shall summon the claimant at his or her elected domicile and his or her counsel by registered postal letter, accompanied by an acknowledgement of receipt, informing them of the date, time and place of the hearing.
This time limit shall not be increased due to distance.
The Council Chamber shall decide by reasoned order, after having heard, where appropriate, the conclusions of the counsels and the parties, the claimants' counsel and the State Prosecutor.
The order of the Council Chamber shall be enforceable once the time period for filing an appeal has expired.
The clerk shall notify the Council Chamber’s order by sealed and registered postal letter to the elected domicile, accompanied by an acknowledgement of receipt.
(4)
Orders of the Council Chamber may be appealed:
- by the General State Prosecutor and the State Prosecutor, in all cases;
- by the claimant, if the order prejudices his or her rights.
The appeal must be filed within the following time limits, otherwise it will be barred:
- by the General State Prosecutor, within ten days of the Council Chamber’s order;
- by the State Prosecutor, within three days of the Council Chamber’s order;
- by the claimant, within three days of notification of the Council Chamber’s order.
(5)
The proceedings before the Council Chamber of the District Court shall be applicable before the Council Chamber of the Court of Appeal.
(6)
The judgment of the Council Chamber of the Court of Appeal shall be enforceable without any further formalities.
(7)
No appeal to the Court of cassation is admissible.
Art. 12.
By way of derogation from article 9 and even in the event of the filing of a "brief", the judge presiding over the Council Chamber may, at the written request of the State Prosecutor, authorise the transmission of the results of the execution of an international letter rogatory without delay to the judicial authority of the requesting State if there are serious and consistent signs that the procedure provided for in "article 9" may endanger the physical or mental integrity of a person.
This decision is not subject to any appeal.
Art. 13.
Except where the person concerned has consented or where immediate and serious danger to public security exists, the requesting State may not use the objects, documents or information obtained by means of mutual assistance for investigation or as evidence in criminal or administrative proceedings other than those for which mutual assistance was granted without the agreement of the General State Prosecutor.
Transitional provisions
This Law shall enter into force on the first day of the month following its publication in the Mémorial.
The amendments to the Law of 8 August 2000 on international mutual assistance in criminal matters, provided for in article 12 of this Law, with the exception of point (8) of that article, shall apply to requests for mutual assistance referred to in the Law of 8 August 2000 which shall be referred to the competent authorities as from its entry into force.
La consultation de ce document ne remplace pas la lecture du texte officiel publié au Mémorial du Grand-Duché de Luxembourg. Nous déclinons toute responsabilité pour d'éventuelles inexactitudes résultant de la conversion de l'original dans ce format.