CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) ACT - gazettes.gov.ky
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CAYMAN ISLANDS
CRIMINAL JUSTICE (INTERNATIONAL
COOPERATION) ACT
(2021 Revision)
Supplement No. 4 published with Legislation Gazette No. 7 of 22nd January, 2021.PUBLISHING DETAILS
(Originally enacted as the Misuse of Drugs (International Cooperation) Law)
Law 16 of 1997 consolidated with Law 29 of 2003, Law 1 of 2010. 19 of 2012 (part) and
Law 56 of 2020, the Misuse of Drugs (International Cooperation) Order, 1998, the
Criminal Justice (International Cooperation) (Amendment of Schedule) Order, 2019, the
Criminal Justice (International Cooperation) (Amendment of Schedule) (No. 2) Order,
2019 and the Criminal Justice (International Cooperation) (Amendment of Schedule 1)
Order, 2020.
Revised under the authority of the Law Revision Act (2020 Revision).
Originally enacted —
Law 16 of 1997-19th June, 1997
Law 29 of 2003-3rd December, 2003
Law 1 of 2010-24th February, 2010
Law 19 of 2012-31st August, 2012 (part)
Law 56 of 2020-7th December, 2020.
Originally made —
Order, 1998-10th February, 1998
Order, 2019-7th May, 2019
Order, 2019-17th December, 2019
Order, 2020-9th April, 2020.
Consolidated and revised this 31st December, 2020.
Note (not forming part of the Law): This revision replaces the 2020 Revision which
should now be discarded.
Page 2 Revised as at 31st December, 2020
cCriminal Justice (International Cooperation) Law (2021 Revision) Arrangement of Sections
CAYMAN ISLANDS
CRIMINAL JUSTICE (INTERNATIONAL
COOPERATION) ACT
(2021 Revision)
Arrangement of Sections
Section Page
1. Short title ...................................................................................................................................... 5
2. Definitions and interpretation ........................................................................................................ 5
3. Purposes of mutual legal assistance ............................................................................................ 6
4. Central Authority ........................................................................................................................... 6
5. Contents of request ...................................................................................................................... 6
6. Use of requested information by Authority ................................................................................... 7
7. Confidentiality of Authority ............................................................................................................ 7
8. Refusal of mutual legal assistance ............................................................................................... 8
9. Postponement of assistance ........................................................................................................ 8
10. Powers ancillary to the execution of a request ............................................................................. 8
11. Production of material relevant to a request ................................................................................. 9
12. Authority for a search pursuant to a request .............................................................................. 11
13. Authentication of official documents ........................................................................................... 12
14. Protection of persons appearing in response to a request ......................................................... 12
15. Protection of persons disclosing confidential information ........................................................... 12
16. Restriction of application of laws ................................................................................................ 13
17. Transfer of persons in custody to or from the territory of the other Party ................................... 13
18. Confidentiality with regard to a request ...................................................................................... 13
19. Forfeiture or confiscation of criminally acquired assets .............................................................. 14
20. Service of notices and documents.............................................................................................. 14
21. Enforcement ............................................................................................................................... 14
22. Return of documents and articles ............................................................................................... 14
23. Conflict of laws ........................................................................................................................... 14
24. Application of certain provisions of the Proceeds of Crime Act .................................................. 15
c Revised as at 31st December, 2020 Page 3Arrangement of Sections Criminal Justice (International Cooperation) Law (2021 Revision)
25. Amendment of Schedule 1 ......................................................................................................... 15
SCHEDULE 1 17
COUNTRIES OR TERRITORIES TO WHICH MUTUAL LEGAL ASSISTANCE MAY BE
GIVEN BY THE AUTHORITY 17
SCHEDULE 2 20
UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES 20
ENDNOTES 51
Table of Legislation history: ................................................................................................................. 51
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cCriminal Justice (International Cooperation) Law (2021 Revision) Section 1
CAYMAN ISLANDS
CRIMINAL JUSTICE (INTERNATIONAL
COOPERATION) ACT
(2021 Revision)
1. Short title
1. This Act may be cited as the Criminal Justice (International Cooperation) Act (2021
Revision).
2. Definitions and interpretation
2. (1) In this Act —
“Article ” means an article of the Convention;
“Authority” means the Central Authority designated under section 4;
“Convention” means the 1988 United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances set out in Schedule 2;
“court” means the Grand Court;
“law corresponding to this Act” means a law of a requesting Party which
provides for legal assistance in criminal matters to foreign states and pursuant
to which assistance of the kind sought under this Act could be similarly
obtained;
“Party” —
(a) other than in the Convention, means a country or territory specified in
Schedule 1; and
(b) in the Convention, means a party to the Convention;
c Revised as at 31st December, 2020 Page 5Section 3 Criminal Justice (International Cooperation) Law (2021 Revision)
“request” means a request for mutual legal assistance made by one Party to
another Party in accordance with section 5; and
“requesting Party” means a Party who makes a request to the Authority for
assistance under this Act.
(2) In this Act, references to an offence to which this Act applies are
references to —
(a) any offence under the laws of the Islands; and
(b) conduct which would constitute an offence if it had occurred in the Islands.
3. Purposes of mutual legal assistance
3. Mutual legal assistance in offences to which this Act applies may be requested for
any of the following purposes —
(a) taking evidence or statements from persons;
(b) effecting service of judicial documents;
(c) executing searches and seizures;
(d) examining objects and sites;
(e) providing information and items of evidence;
(f) providing originals or certified copies of relevant documents and records,
including bank, financial, corporate or business records;
(g) identifying or tracing proceeds, property, instruments or such other things
for the purposes of evidence;
(h) immobilising criminally obtained assets;
(i) assisting in proceedings related to forfeiture and restitution; and
(j) facilitating the voluntary transfer of witnesses.
4. Central Authority
4. For the purposes of Article 7(8) and this Act, the Central Authority shall be the
Director of Public Prosecutions who shall exercise his functions under the Convention
and this Act.
5. Contents of request
5. (1) The Authority shall make or accept requests in writing.
(2) A request shall contain —
(a) the identity of the Party making the request;
(b) the subject matter and nature of the investigation, prosecution or
proceeding to which the request relates;
(c) the name and the functions of the persons conducting such investigation,
prosecution or proceeding;
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cCriminal Justice (International Cooperation) Law (2021 Revision) Section 6
(d) a summary of all relevant facts respecting the request, except in respect of
requests for the purpose of service of judicial documents;
(e) a description of the assistance sought and details of any particular
procedure the requesting Party requires to be followed;
(f) where possible, the identity, location and nationality of any person
concerned; and
(g) the purpose for which the evidence, information or action is sought.
(3) To the extent necessary and possible, a request shall also include —
(a) the identity and location of a person to be served, that person’s relationship
to the proceedings and the manner in which service is to be made;
(b) a precise description of the place or person to be searched and of the
articles to be seized;
(c) a description of the manner in which any testimony or statement is to be
taken and recorded;
(d) a list of questions to be posed to a witness;
(e) a description of any particular procedure to be followed in executing the
request;
(f) information as to the allowances and expenses to which a person asked to
appear in the territory of a Party will be entitled; and
(g) any other information which may be brought to the attention of the
Authority to facilitate its execution of the request.
(4) The Authority may request such additional information from the requesting
Party as may be necessary to assist the Authority in complying with the request
and in conforming with any law in the Islands.
(5) The Authority shall only accept requests made in English.
6. Use of requested information by Authority
6. (1) The requesting Party shall not, without the prior written consent of the
Authority, transmit or use information or evidence provided by the Authority
for investigations, prosecutions or proceedings other than those stated in the
request.
(2) Before the Authority gives consent under subsection (1), it shall apply to the
court which ordered the production of the information or evidence for
directions.
7. Confidentiality of Authority
7. Where a requesting Party requires the Authority to keep confidential the fact and
substance of a request made to the Authority and the Authority cannot legally comply
with such requirement for confidentiality, it shall so inform the requesting Party.
c Revised as at 31st December, 2020 Page 7Section 8 Criminal Justice (International Cooperation) Law (2021 Revision)
8. Refusal of mutual legal assistance
8. (1) The Authority may refuse to comply with a request —
(a) if the request is not made in conformity with section 5;
(b) if the request does not establish that there are reasonable grounds for
believing —
(i) that the criminal offence specified in the request has been committed;
and
(ii) that the information sought relates to the offence and is located in the
Islands;
(c) if the Authority is of the opinion that the request is likely to prejudice the
security, public order or other essential interests of the Islands;
(d) if the authorities in the Islands would be prohibited by any law of the
Islands from carrying out the action requested with regard to any similar
offence in the Islands;
(e) if it is contrary to the laws of the Islands to grant mutual legal assistance
in the circumstances to which a request relates; or
(f) if the Authority is of the opinion that the requesting Party would not render
assistance to the Authority in accordance with the Convention or under a
law corresponding to this Act.
(2) Where the Authority refuses to comply with a request on any of the grounds
specified in subsection (1) it shall so inform the requesting Party in writing and
state the grounds for the refusal.
9. Postponement of assistance
9. (1) The Authority may postpone giving assistance pursuant to a request where such
assistance would interfere in an investigation, prosecution or other proceeding
in the Islands.
(2) Where the Authority postpones assistance in accordance with subsection (1), it
shall consult with the requesting Party to determine if the requesting Party will
accept assistance subject to such terms and conditions as the Authority deems
necessary.
10. Powers ancillary to the execution of a request
10. (1) Subject to sections 8 and 9 —
(a) upon receipt of a request relating to the Convention, the Authority shall
execute the request in accordance with Article 7; and
(b) upon receipt of any other request, the Authority may execute the request
in accordance with this Act.
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cCriminal Justice (International Cooperation) Law (2021 Revision) Section 11
(2) Where the execution of a request would require a person to testify before a court,
the Authority shall apply to the court to receive such testimony to which the
request relates as appears to the court to be appropriate for the purpose of giving
effect to the request.
(3) A court may, in pursuance of an application made under subsection (2), issue a
subpoena and take evidence on oath.
(4) A person shall not be compelled in any proceedings under this section to give
evidence which that person could not be compelled to give in criminal
proceedings in the Islands.
11. Production of material relevant to a request
11. (1) Where, pursuant to a request, the Authority considers it necessary to obtain
material from any person it shall direct a constable to apply to the Grand Court
for an order to produce such material.
(2) If, on an application under subsection (1), the court is satisfied that the
conditions in subsection (4) are fulfilled, it may make an order that the person
who appears to it to be in possession of the material to which the application
relates shall —
(a) produce it to the constable to take away; or
(b) give a constable access to it,
within such period as the order may specify.
(3) The period to be specified in an order under subsection (2) shall be seven days,
unless it appears to the court that a longer or shorter period would be appropriate
in the particular circumstances of the application.
(4) The conditions referred to in subsection (2) are that there are reasonable grounds
for —
(a) suspecting that a specified person has carried on or has benefited from an
offence to which this Act applies;
(b) suspecting that the material to which the application relates —
(i) is likely to be of substantial value (whether by itself or together with
other material) to the request for the purpose of which the application
is made; and
(ii) does not consist of or include items subject to legal privilege; and
(c) believing that it is in the public interest, having regard to —
(i) the benefit likely to accrue to the request if the material is
obtained; and
(ii) the circumstances under which the person in possession of the
material holds it,
that the material should be produced or that access to it should be given.
c Revised as at 31st December, 2020 Page 9Section 11 Criminal Justice (International Cooperation) Law (2021 Revision)
(5) Where the court makes an order under paragraph (b) of subsection (2) in relation
to material on any premises it may, on the application of a constable, order any
person who appears to it to be entitled to grant entry to the premises to allow a
constable to enter the premises to obtain access to the material.
(6) The Rules Committee of the Grand Court may make rules governing the
procedure in relation to —
(a) applications for the grant, discharge and variation of orders under this Act;
and
(b) proceedings relating to such orders.
(7) Where the material to which an application under this section relates consists of
information contained in a computer —
(a) an order under paragraph (a) of subsection (2) shall have effect as an order
to produce the material in a form in which it can be taken away and in
which it is visible and legible; and
(b) an order under paragraph (b) of subsection (2) shall have effect as an order
to give access to the material in a form in which it is visible and legible.
(8) An order under subsection (2) —
(a) shall not confer any right to production of, or access to, items subject to
legal privilege; and
(b) shall have effect notwithstanding any obligation as to secrecy or other
restriction upon the disclosure of information whether imposed by the
Confidential Information Disclosure Act, 2016 [Law 23 of 2016], any
other law or the common law.
(9) Where, pursuant to a request, an order under subsection (2) has been made or
has been applied for, and has not been refused, or a warrant under section 12
has been issued, a person who, knowing or suspecting that a request has been
made, or that an investigation into any matter to which a request is made is
taking place, makes any disclosure which is likely to prejudice the request or
the investigation to which the request may relate, commits an offence and is
liable on conviction on indictment to a fine and to imprisonment for five years.
(10) In proceedings against a person for an offence under this section, it is a defence
to prove —
(a) that that person did not know or believe that the disclosure was likely to
prejudice the investigation; or
(b) that that person had lawful authority or reasonable excuse for making the
disclosure.
(11) Any documents or other written information seized under an order by virtue of
this section shall be brought immediately to the Authority to be dealt with
according to the Law or the Convention.
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cCriminal Justice (International Cooperation) Law (2021 Revision) Section 12
12. Authority for a search pursuant to a request
12. (1) Where, pursuant to a request, the Authority considers it necessary to enter and
search any premises, the Authority shall direct a constable to apply to the Grand
Court for a warrant in relation to specified premises.
(2) On an application made under subsection (1), the court may issue a warrant
authorising a constable to enter and search premises if it is satisfied that —
(a) an order made under section 11(2) in relation to material on the premises
has not been complied with;
(b) the conditions in subsection (3) are fulfilled; or
(c) the conditions in subsection (4) are fulfilled.
(3) The conditions referred to in paragraph (b) of subsection (2) are that —
(a) there are reasonable grounds for suspecting that a specified person has
carried on or has benefited from an offence to which this Act applies;
(b) the conditions in paragraphs (a) and (b) of section 11(4) are fulfilled in
relation to any material on the premises; and
(c) it would not be appropriate to make an order under section 11 in relation
to the material because —
(i) it is not practicable to communicate with any person entitled to
produce the material;
(ii) it is not practicable to communicate with any person entitled to grant
access to the material or entitled to grant entry to the premises on
which the material is situated; or
(iii) the investigation for the purposes of which the application is made
might be seriously prejudiced unless a constable could secure
immediate access to the material.
(4) The conditions referred to in paragraph (c) of subsection (2) are that there are
reasonable grounds for suspecting that —
(a) a specific person has carried on or has benefited from an offence to which
this Act applies;
(b) there is on the premises material relating to the specified person or to an
offence to which this Act applies which is likely to be of substantial value
(whether by itself or together with other material) to the request for the
purpose of which the application is made, but that the material cannot at
the time be particularised; and
(i) it is not practicable to communicate with any person entitled to grant
entry to the premises;
(ii) entry to the premises will not be granted unless a warrant is produced;
or
c Revised as at 31st December, 2020 Page 11Section 13 Criminal Justice (International Cooperation) Law (2021 Revision)
(iii) the request for the purpose of which the application is made might be
seriously prejudiced unless a constable arriving at the premises could
secure immediate entry to them.
(5) Where a constable has entered premises in the execution of a warrant under this
section, that constable may seize and retain any material, other than items
subject to legal privilege, which is likely to be of substantial value (whether by
itself or together with other material) to the investigation for the purposes of
which the warrant was issued.
(6) Any documents or other written information seized under an order by virtue of
this section shall be brought immediately to the Authority to be dealt with
according to the Law or the Convention.
13. Authentication of official documents
13. The Authority or any person designated by the Authority in writing may authenticate
any official documents or records of the Islands which are required in accordance
with this Act.
14. Protection of persons appearing in response to a request
14. (1) Any person who enters the Islands in response to a request made by the
Authority for the appearance of that person in accordance with Article 7(18) or
under a law corresponding to this Act shall not be subject, while in the Islands,
to service of any process or subjected to any restriction of his personal liberty
by reason of any act or conviction in the Islands prior to his departure from the
territory of the requested Party.
(2) Subsection (1) shall cease to apply ten days after that person has been notified
in writing by the Authority that his presence is no longer required in the Islands
or, if that person has earlier left the Islands, that that person is not required by
the Authority to return for the purposes of a request.
(3) For the purposes of subsection (2), notification in writing shall be deemed to
have been given to a person three days after the dispatch by post to that person
of such notification to his last known address.
15. Protection of persons disclosing confidential information
15. (1) A person who divulges any confidential information or gives any testimony in
conformity with a request shall not be considered to commit an offence under
the Confidential Information Disclosure Act, 2016 [Law 23 of 2016] by reason
only of such disclosure or the giving of such testimony.
(2) Any disclosure or testimony to which subsection (1) refers shall be deemed not
to be a breach of any confidential relationship between that person and any other
person, and no civil claim or action shall lie against the person making such
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cCriminal Justice (International Cooperation) Law (2021 Revision) Section 16
disclosure or giving such testimony or against such person’s principal or
employer by reason of such disclosure or testimony.
16. Restriction of application of laws
16. Section 4 of the Confidential Information Disclosure Act, 2016 [Law 23 of 2016]
shall not apply to confidential information given by any person on the directions of
the court given in pursuance of a request.
17. Transfer of persons in custody to or from the territory of the other Party
17. (1) A person who is in lawful custody in the Islands may be transferred to the
territory of any Party in response to a request by that Party for his presence as a
witness if that person and the Authority consent to such a transfer.
(2) A person transferred under subsection (1) shall be considered to be in lawful
custody during such transfer and during the period in which that person is in the
territory of the requesting Party and such time shall count as if that person had
been in custody in the Islands.
(3) A person who is in lawful custody in a territory of any Party and who is
transferred to the Islands upon a request by the Authority shall be considered to
be in lawful custody during such transfer and during the period in which that
person is in the Islands.
(4) Any person who is transferred under this section may be released from custody
upon such conditions as to bail or otherwise as may be agreed in writing between
the Parties and may be released no later than the date on which that person would
have been released if that person had not been so transferred.
18. Confidentiality with regard to a request
18. (1) Where a request and a court order issued pursuant to that request specify that
the request be kept confidential, no person who is —
(a) notified of a request; or
(b) required to take any action, produce any documents or supply any
information in response to or in relation to any matters to which a request
relates,
shall disclose the fact of the receipt of such a request or any particulars required
or documents produced pursuant to the request except to that person’s attorney-
at-law and such other persons as the Authority may authorise, for a period of
ninety days from the date of the receipt of the request or such further period
determined by the Authority.
(2) This section shall be binding on the attorney-at-law of any person to whom
subsection (1) applies.
c Revised as at 31st December, 2020 Page 13Section 19 Criminal Justice (International Cooperation) Law (2021 Revision)
19. Forfeiture or confiscation of criminally acquired assets
19. The Authority may, where it has assisted a requesting Party, enter into an arrangement
with the requesting Party respecting the sharing of confiscated or forfeited assets
between the Government of the Islands and the requesting Party.
20. Service of notices and documents
20. For the purposes of this Act and subject to section 14(3), the service of any document
shall be sufficient if delivered by hand or posted by registered post to the registered
or other office of the addressee and an affidavit testimony of delivery of the notice or
document by hand or supporting the registration certificate shall be deemed sufficient
proof of such service.
21. Enforcement
21. A person who, contrary to section 18, informs any person other than his attorney-at-
law, of the fact of the issue of a request or of any communication relevant to the
matter to which the request relates, commits an offence and is liable on summary
conviction to a fine of one thousand dollars and to imprisonment for six months.
22. Return of documents and articles
22. The requesting Party shall return any documents or articles furnished to it in the
execution of a request under this Act as soon as reasonably practicable unless the
Authority waives the return of the documents and articles.
23. Conflict of laws
23. (1) This Act does not derogate from the provisions of —
(a) the Confidential Information Disclosure Act, 2016 [Law 23 of 2016];
(b) the Mutual Legal Assistance (United States of America) Act (2015
Revision);
(c) the Proceeds of Crime Act (2020 Revision);
(d) the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands)
Order 1978; or
(e) any other law enabling international cooperation in criminal matters.
(2) This Act does not apply to a request for the exchange of information made
pursuant to a law or an agreement which has legal effect in the Islands and which
enables international cooperation in taxation matters.
(3) Where there is any inconsistency between this Act and the Convention, this Act
shall prevail to the extent of the inconsistency.
(4) In subsection (2) —
“taxation matters” means matters relating to the collection, calculation or
assessment of a tax or matters incidental thereto.
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cCriminal Justice (International Cooperation) Law (2021 Revision) Section 24
24. Application of certain provisions of the Proceeds of Crime Act
24. (1) Where a request has been made for the purpose of —
(a) identifying or tracing proceeds, property, instruments or such other things
for the purposes of evidence;
(b) immobilising criminally obtained assets; or
(c) assisting in proceedings related to forfeiture and restitution,
the provisions of sections 32 to 38, and Schedule 5 to the Proceeds of Crime Act
(2020 Revision) shall mutatis mutandis apply, except that —
(i) any reference in those provisions to a designated country shall be
construed as a reference to a country or territory specified in
Schedule 1 of this Act; and
(ii) any reference in those provisions to the institution of proceedings
shall be disregarded.
(2) For the purposes of this Act, the powers of the Grand Court under
paragraphs 6(1) and 7(a) of Schedule 5 to the Proceeds of Crime Act (2020
Revision) are exercisable where either an external confiscation order has been
made or it appears to the Grand Court that there are reasonable grounds for
thinking that such an order may be made.
25. Amendment of Schedule 1
25. The Cabinet may, by order, amend Schedule 1.
c Revised as at 31st December, 2020 Page 15Criminal Justice (International Cooperation) Law (2021 Revision) SCHEDULE 1
SCHEDULE 1
(section 2)
COUNTRIES OR TERRITORIES TO WHICH MUTUAL LEGAL
ASSISTANCE MAY BE GIVEN BY THE AUTHORITY
Afghanistan Algeria
Antigua and Barbuda Argentina
Armenia Australia
Austria Azerbaijan
Bahamas Bahrain
Bangladesh Barbados
Belarus Belgium
Belize Bhutan
Bolivia Bosnia and Herzegovina
Brazil Brunei Darussalam
Bulgaria Burkina Faso
Burundi
Cameroon Canada
Cape Verde Chad
Chile China
Colombia Costa Rica
Côte d’Ivoire Croatia
Cuba Cyprus
Czech Republic
Denmark Dominica
Dominican Republic
Ecuador Egypt
El Salvador Ethiopia
European Community
Fiji Finland
France
Gabon Gambia
Germany Ghana
Greece Grenada
c Revised as at 31st December, 2020 Page 17SCHEDULE 1 Criminal Justice (International Cooperation) Law (2021 Revision)
Guatemala Guernsey
Guinea Guinea-Bissau
Guyana
Haiti Holy See
Honduras Hungary
India Indonesia
Iran (Islamic Republic) Ireland
Israel Italy
Jamaica Japan
Jersey Jordan
Kenya Kuwait
Kyrgyzstan
Latvia Lebanon
Lesotho Liechtenstein
Luxembourg
Macedonia Madagascar
Malawi Malaysia
Maldives Mali
Malta Mauritania
Mauritius Mexico
Moldova Monaco
Morocco
Nepal Netherlands
New Zealand Nicaragua
Niger Nigeria
Norway
Oman
Pakistan Panama
Paraguay Peru
Poland Portugal
Qatar
Republic of Korea Romania
Russian Federation
St. Kitts and Nevis St. Lucia
St. Vincent and the Grenadines São Tomé and Príncipe
Saudi Arabia Senegal
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cCriminal Justice (International Cooperation) Law (2021 Revision) SCHEDULE 1
Seychelles Sierra Leone
Slovakia Slovenia
Spain Sri Lanka
Sudan Suriname
Swaziland Sweden
Switzerland Syrian Arab Republic
Tajikistan Togo
Trinidad and Tobago Tunisia
Turkey Turkmenistan
Uganda Ukraine
United Arab Emirates United Kingdom (and the
overseas territories of
Anguilla, Bermuda, British
Virgin Islands, Isle of Man,
Montserrat and the Turks
and Caicos Islands)
United Republic of Tanzania United States of America
Uruguay Uzbekistan
Venezuela Yemen
Zaire Zambia
Zimbabwe
c Revised as at 31st December, 2020 Page 19SCHEDULE 2 Criminal Justice (International Cooperation) Law (2021 Revision)
SCHEDULE 2
UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES
Adopted in Vienna, on 19 December 1988
The Parties to the Convention,
Deeply concerned by the magnitude of and rising trend in the illicit production of, demand
for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat
to the health and welfare of human beings and adversely affect the economic, cultural and
political foundations of society,
Deeply concerned also by the steadily increasing inroads into various social groups made
by illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact
that children are used in many parts of the world as an illicit drug consumers market and
for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic
substances, which entails a danger of incalculable gravity,
Recognising the links between illicit traffic and other related organised criminal activities
which undermine the legitimate economies and threaten the stability, security and
sovereignty of the States,
Recognising also that illicit traffic is an international criminal activity, the suppression of
which demands urgent attention and the highest priority,
Aware that illicit traffic generates large financial profits and wealth enabling transnational
criminal organisations to penetrate, contaminate and corrupt the structures of government,
legitimate, commercial and financial business, and society at all its levels,
Determined to deprive persons engaged in illicit traffic of the proceeds of their criminal
activities and thereby eliminate their main incentive for so doing,
Desiring to eliminate the root causes of the problem of abuse of narcotic drugs and
psychotropic substances, including the illicit demand for such drugs and substances and
the enormous profits derived from illicit traffic,
Considering that measures are necessary to monitor certain substances, including
precursors, chemicals and solvents, which are used in the manufacture of narcotic drugs
and psychotropic substances, the ready availability of which has led to an increase in the
clandestine manufacture of such drugs and substances,
Determined to improve international co-operation in the suppression of illicit traffic by
sea,
Recognising that eradication of illicit traffic is a collective responsibility of all States and
that, to that end, co-ordinated action within the framework of international co-operation is
necessary,
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cCriminal Justice (International Cooperation) Law (2021 Revision) SCHEDULE 2
Acknowledging the competence of the United Nations in the field of control of narcotic
drugs and psychotropic substances and desirous that the international organs concerned
with such control should be within the framework of that Organisation,
Reaffirming the guiding principles of existing treaties in the field of narcotic drugs and
psychotropic substances and the system of control which they embody,
Recognising the need to reinforce and supplement the measures provided in the Single
Convention on Narcotic Drugs, 1961, that Convention as amended by the 1972 Protocol
Amending the Single Convention on Narcotic Drugs, 1961, and the 1971 Convention on
Psychotropic Substances, in order to counter the magnitude and extent of illicit traffic and
its grave consequences,
Recognising also the importance of strengthening and enhancing effective legal means for
international co-operation in criminal matters for suppressing the international criminal
activities of illicit traffic,
Desiring to conclude a comprehensive, effective and operative international convention
that is directed specifically against illicit traffic and that considers the various aspects of
the problem as a whole, in particular those aspects not envisaged in the existing treaties in
the field of narcotic drugs and psychotropic substances,
Hereby agree as follows:
Article 1
DEFINITIONS
Except where otherwise expressly indicated or where the context otherwise requires, the
following definitions shall apply throughout this Convention:
(a) “Board” means the International Narcotics Control Board established by the Single
Convention on Narcotic Drugs, 1961, and that Convention as amended by the 1972
Protocol Amending the Single Convention on Narcotic Drugs, 1961;
(b) “Cannabis plant” means any plant of the genus Cannabis;
(c) “Coca bush” means the plant of any species of the genus Erythroxylon;
(d) “Commercial carrier” means any person or any public, private or other entity
engaged in transporting persons, goods or mails for remuneration, hire, or any other
benefit;
(e) “Commission” means the Commission on Narcotic Drugs of the Economic and
Social Council of the United Nations;
(f) “Confiscation”, which includes forfeiture where applicable, means the permanent
deprivation of property by order of a court or other competent authority;
(g) “Controlled delivery” means the technique of allowing illicit or suspect
consignments of narcotic drugs, psychotropic substances, substances in Table I and Table
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II annexed to this Convention, or substances substituted for them, to pass out of, through
or into the territory of one or more countries, with the knowledge and under the supervision
of their competent authorities, with a view to identifying persons involved in the
commission of offences established in accordance with article 3, paragraph 1 of the
Convention;
(h) “1961 Convention” means the Single Convention on Narcotic Drugs, 1961;
(i) “1961 Convention as amended” means the Single Convention on Narcotic Drugs,
1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic
Drugs, 1961;
(j) “1971 Convention” means the Convention on Psychotropic Substances, 1971;
(k) “Council” means the Economic and Social Council of the United Nations;
(l) “Freezing” or “seizure” means temporarily prohibiting the transfer, conversion,
disposition or movement of property or temporarily assuming custody or control of
property on the basis of an order issued by a court or a competent authority;
(m) “Illicit traffic” means the offences set forth in article 3, paragraphs 1 and 2 of this
Convention;
(n) “Narcotic drug” means any of the substances, natural or synthetic, in Schedules I
and II of the Single Convention on Narcotic Drugs, 1961, and that Convention as amended
by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961;
(o) “Opium poppy” means the plant of the species Papaver somniferum L;
(p) “Proceeds” means any property derived or obtained from, directly or indirectly,
through the commission of an offence established in accordance with article 3, paragraph 1;
(q) “Property” means assets of every kind, whether corporeal or incorporeal, movable
or immovable, tangible or intangible, and legal documents or instruments evidencing title
to, or interests in, such assets;
(r) “Psychotropic substance” means any substance, natural or synthetic, or any natural
material in Schedules I, II, III, or IV of the Convention on Psychotropic substances, 1971;
(s) “Secretary-General” means the Secretary General of the United Nations;
(t) “Table I” and “Table II” mean the correspondingly numbered lists of substances
annexed to this Convention, as amended from time to time in accordance with article 12;
(u) “Transit State” means a State through the territory in which illicit narcotic drugs,
psychotropic substances and substances in Table I and Table II are being moved, which is
neither the place of origin nor the place of ultimate destination thereof.
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Article 2
SCOPE OF THE CONVENTION
1. The purpose of this Convention is to promote co-operation among the Parties so that
they may address more effectively the various aspects of illicit traffic in narcotic drugs and
psychotropic substances having an international dimension. In carrying out their
obligations under the Convention, the Parties shall take necessary measures, including
legislative and administrative measures, in conformity with the fundamental provisions of
their respective domestic legislative systems.
2. The Parties shall carry out their obligations under this Convention in a manner
consistent with the principles of sovereign equality and territorial integrity of States and
that of non-intervention in the domestic affairs of other States.
3. A Party shall not undertake in the territory of another the exercise of jurisdiction and
performance of functions which are exclusively reserved for the authorities of that other
Party by its domestic law.
Article 3
OFFENCES AND SANCTIONS
1. Each Party shall adopt such measures as may be necessary to establish as criminal
offences under its domestic law, when committed intentionally:
(a) (i) The production, manufacture, extraction, preparation, offering, offering
for sale, distribution, sale, delivery on any terms whatsoever, brokerage,
dispatch, dispatch in transit, transport, importation or exportation of any
narcotic drug or any psychotropic substance contrary to the provisions of
the 1961 Convention, the 1961 Convention as amended or the 1971
Convention;
(ii) The cultivation of opium poppy, coca bush or cannabis plant for the
purpose of the production of narcotic drugs contrary to the provisions of
the 1961 Convention and the 1961 Convention as amended;
(iii) The possession or purchase of any narcotic drug or psychotropic substance
for the purpose of any of the activities enumerated in (i) above;
(iv) The manufacture, transport or distribution of equipment, materials or of
substances listed in Table I and Table II, knowing that they are to be used
in or for the illicit cultivation, production or manufacture of narcotic drugs
or psychotropic substances;
(v) The organisation, management or financing of any of the offences
enumerated in (i), (ii), (iii) or (iv) above;
(b) (i) The conversion or transfer of property, knowing that such property is
derived from any offence or offences established in accordance with
subparagraph (a) of this paragraph, or from an act of participation in such
offence or offences, for the purpose of concealing or disguising the illicit
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origin of the property or of assisting any person who is involved in the
commission of such an offence or offences to evade the legal consequences
of his actions;
(ii) The concealment or disguise of the true nature, source, location,
disposition, movement, rights with respect to, or ownership of property,
knowing that such property is derived from an offence or offences
established in accordance with subparagraph (a) of this paragraph or from
an act of participation in such an offence or offences;
(c) Subject to its constitutional principles and the basic concepts of its legal system:
(i) The acquisition, possession or use of property, knowing at the time of
receipt, that such property was derived from an offence or offences
established in accordance with subparagraph (a) of this paragraph or from
an act of participation in such an offence or offences;
(ii) The possession of equipment or materials or substances listed in Table I
and Table II, knowing that they are being or are to be used in or for the
illicit cultivation, production or manufacture of narcotic drugs or
psychotropic substances;
(iii) Publicly inciting or inducing others, by any means, to commit any of the
offences established in accordance with this article or to use narcotic drugs
or psychotropic substances illicitly;
(iv) Participation in, association or conspiracy to commit, attempts to commit
and aiding, abetting facilitating and counselling the commission of any of
the offences established in accordance with this article.
2. Subject to its constitutional principles and the basic concepts of its legal system, each
Party shall adopt such measures as may be necessary to establish as a criminal offence
under its domestic law, when committed intentionally, the possession, purchase or
cultivation of narcotic drugs or psychotropic substances for personal consumption contrary
to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971
Convention.
3. Knowledge, intent or purpose required as an element of an offence set forth in
paragraph 1 of this article may be inferred from objective factual circumstances.
4. (a) Each Party shall make the commission of the offences established in accordance
with paragraph 1 of this article liable to sanctions which take into account the grave nature
of these offences, such as imprisonment or other forms of deprivation of liberty, pecuniary
sanctions and confiscation.
(b) The Parties may provide, in addition to conviction or punishment, for an offence
established in accordance with paragraph 1 of this article, that the offender shall undergo
measures such as treatment, education, aftercare, rehabilitation or social reintegration.
(c) Notwithstanding the preceding subparagraphs, in appropriate cases of a minor
nature, the Parties may provide, as alternatives to conviction or punishment, measures such
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as education, rehabilitation or social reintegration, as well as, when the offender is a drug
abuser, treatment and aftercare.
(d) The Parties may provide, either as an alternative to conviction or punishment,
or in addition to conviction or punishment of an offence established in accordance with
paragraph 2 of this article, measures for the treatment, education, aftercare, rehabilitation
or social reintegration of the offender.
5. The Parties shall ensure that their courts and other competent authorities having
jurisdiction can take into account factual circumstances which make the commission of the
offences established in accordance with paragraph 1 of this article particularly serious, such
as:
(a) The involvement in the offence of an organised criminal group to which the
offender belongs;
(b) The involvement of the offender in other international organised criminal
activities;
(c) The involvement of the offender in other illegal activities facilitated by the
commission of the offence;
(d) The use of violence or arms by the offender;
(e) The fact that the offender holds a public office and that the offence is connected
with the office in question;
(f) The victimisation or use of minors;
(g) The fact that the offence is committed in a penal institution or in an educational
institution or social service facility or in their immediate vicinity or in other places to which
school children and students resort for educational, sports and social activities;
(h) Prior conviction, particularly for similar offences, whether foreign or domestic,
to the extent permitted under the domestic law of a Party.
6. The Parties shall endeavour to ensure that any discretionary legal powers under their
domestic law relating to the prosecution of persons for offences established in accordance
with this article are exercised to maximise the effectiveness of law enforcement measures
in respect of those offences and with due regard to the need to deter the commission of
such offences;
7. The Parties shall ensure that their courts or other competent authorities bear in mind
the serious nature of the offences enumerated in paragraph 1 of this article and the
circumstances enumerated in paragraph 5 of this article when considering the eventuality
of early release or parole of persons convicted of such offences.
8. Each Party shall, where appropriate, establish under its domestic law a long statute of
limitations period in which to commence proceedings for any offence established in
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accordance with paragraph (1) of this article, and a longer period where the alleged
offender has evaded the administration of justice.
9. Each Party shall take appropriate measures, consistent with its legal system, to ensure
that a person charged with or convicted of an offence established in accordance with
paragraph 1 of this article, who is found within its territory, is present at the necessary
criminal proceedings.
10. For the purpose of co-operation among the Parties under this Convention, including
in particular, co-operation under articles 5, 6, 7 and 9, offences established in accordance
with this article shall not be considered as fiscal offences or as political offences or
regarded as politically motivated, without prejudice to the constitutional limitations and
the fundamental domestic law of the Parties.
11. Nothing contained in this article shall affect the principle that the description of the
offences to which it refers and of legal defences thereto is reserved to the domestic law of
a Party and that such offences shall be prosecuted and punished in conformity with that
law.
Article 4
JURISDICTION
1. Each Party:
(a) Shall take such measures as may be necessary to establish its jurisdiction over
the offences it has established in accordance with article 3, paragraph 1, when:
(i) The offence is committed in its territory;
(ii) The offence is committed on board a vessel flying its flag or an aircraft
which is registered under its law at the time the offence is committed;
(b) May take measures as may be necessary to establish its jurisdiction over the
offences it has established in accordance with article 3, paragraph 1, when:
(i) The offence is committed by one of its nationals or by a person who has
his habitual residence in its territory;
(ii) The offence is committed on board a vessel concerning which that Party
has been authorised to take appropriate action pursuant to article 17,
provided that such jurisdiction shall be exercised only on the basis of
agreements or arrangements referred to in paragraphs 4 and 9 of that
article;
(iii) The offence is one of those established in accordance with article 3,
paragraph 1, subparagraph (c) (iv), and is committed outside its territory,
of an offence established in accordance with article 3, paragraph 1.
2. Each Party:
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(a) Shall also take such measures as may be necessary to establish its jurisdiction
over the offences it has established in accordance with article 3, paragraph 1, when the
alleged offender is present in its territory and it does not extradite him to another Party on
the ground:
(i) That the offence has been committed in its territory or on board a vessel
flying its flag or an aircraft which has registered under its law at the time
the offence was committed; or
(ii) that the offence has been committed by one of its nationals;
(b) May also take such measures as may be necessary to establish its jurisdiction
over the offences it has established in accordance with article 3, paragraph 1, when the
alleged offender is present in its territory and it does not extradite him to another Party.
3. This Convention does not exclude the exercise of any criminal jurisdiction established
by a Party in accordance with its domestic law.
Article 5
CONFISCATION
1. Each Party shall adopt such measures as may be necessary to enable confiscation of:
(a) Proceeds derived from offences established in accordance with article 3,
paragraph 1, or property the value of which corresponds to that of such proceeds;
(b) Narcotic drugs and psychotropic substances, materials and equipment or other
instrumentalities used in or intended for use in a manner in offences established in
accordance with article 3, paragraph 1.
2. Each Party shall also adopt such measures as may be necessary to enable its
competent authorities to identify, trace and freeze or seize proceeds, property,
instrumentalities or any other things referred to in paragraph 1 of this article, for the
purpose of eventual confiscation.
3. In order to carry out the measures referred to in this article, each Party shall empower
its courts or other competent authorities to order that bank, financial or commercial records
be made available or be seized. A Party shall not decline to act under the provisions of this
paragraph on the ground of bank secrecy.
4. (a) Following a request made pursuant to this article by another Party having
jurisdiction over an offence established in accordance with article 3, paragraph 1, the Party
in whose territory proceeds, property, instrumentalities or any other things referred to in
paragraph 1 of this article are situated shall:
(i) Submit the request to its competent authorities for the purpose of obtaining
an order of confiscation and, if such order is granted, give effect to it; or
(ii) Submit to its competent authorities, with a view to giving effect to it to the
extent requested, an order of confiscation issued by the requesting Party in
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accordance with paragraph 1 of this article, in so far as it relates to
proceeds, property, instrumentalities or any other things referred to in
paragraph 1 situated in the territory of the requested Party.
(b) Following a request made pursuant to this article by another Party having
jurisdiction over an offence established in accordance with article 3, paragraph 1, the
requested Party shall take such measures to identify, trace and seize proceeds, property,
instrumentalities or any other things referred to in paragraph 1 of this article for the purpose
of eventual confiscation to be ordered either by the requesting Party or, pursuant to a
request under subparagraph (a) of this paragraph, by the requested Party.
(c) The decisions or actions provided for in subparagraphs (a) and (b) of this
paragraph shall be taken by the requested Party, in accordance with and subject to the
provisions of its domestic law and its procedural rules or any bilateral or multilateral treaty,
agreement or arrangement to which it may be bound in relation to the requesting Party.
(d) The provisions of article 7, paragraphs 6 to 19 are applicable mutatis mutandis.
In addition to the information specified in article 7, paragraph 10, requests made pursuant
to this article shall contain the following:
(i) In the case of a request pertaining to subparagraph (a)(i) of this paragraph,
a description of the property to be confiscated and a statement of the facts
relied upon by the requesting Party sufficient to enable the requested Party
to seek the order under its domestic law;
(ii) In the case of a request pertaining to subparagraph (a)(ii), a legally
admissible copy of an order of confiscation issued by the requesting Party
upon which the request is based, a statement of the facts and information
as to the extent to which the execution of the order is requested;
(iii) In the case of a request pertaining to subparagraph (b), a statement of the
facts relied upon by the requesting Party and a description of the actions
requested.
(e) Each Party shall furnish to the Secretary-General the text of any of its laws and
regulations which give effect to this paragraph and the text of any subsequent changes to
such laws and regulations.
(f) If a Party elects to make the taking of the measures referred to in
subparagraphs (a) and (b) of this paragraph conditional on the existence of a relevant treaty,
that Party shall consider this Convention as the necessary and sufficient treaty basis.
(g) The Parties shall seek to conclude bilateral and multilateral treaties, agreements
or arrangements to enhance the effectiveness of international co-operation pursuant to this
article.
5. (a) Proceeds or property confiscated by a Party pursuant to paragraph 1 or
paragraph 4 of this article shall be disposed of by that Party according to its domestic law
and administrative procedures.
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(b) When acting on the request of another Party in accordance with this article, a
Party may give special consideration to concluding agreements on:
(i) Contributing the value of such proceeds and property, or funds derived
from the sale of such proceeds or property, or a substantial part thereof, to
intergovernmental bodies specialising in the fight against illicit traffic in
and abuse of narcotic drugs and psychotropic substances;
(ii) Sharing with other Parties, on a regular or case-by-case basis, such
proceeds or property, or funds derived from the sale of such proceeds or
property, in accordance with its domestic law, administrative procedures
or bilateral or multilateral agreements entered into for this purpose.
6. (a) If proceeds have been transformed or converted into, other property, such
property shall be liable to the measures referred to in this article instead of the proceeds.
(b) If proceeds have been intermingled with property acquired from legitimate
sources, such property shall, without prejudice to any powers relating to seizure or freezing,
be liable to confiscation up to the assessed value of the intermingled proceeds.
(c) Income or other benefits derived from:
(i) Proceeds;
(ii) Property into which proceeds have been transformed or converted; or
(iii) Property with which proceeds have been intermingled,
shall also be liable to the measures referred to in this article, in the same manner and to the
same extent as proceeds.
7. Each Party may consider ensuring that the onus of proof be reversed regarding the
lawful origin of alleged proceeds or other property liable to confiscation, to the extent that
such action is consistent with principles of its domestic law and with the nature of the
judicial and other proceedings.
8. The provisions of this article shall not be construed as prejudicing the rights of bona
fide third parties.
9. Nothing contained in this article shall affect the principle that the measures to which
it refers shall be defined and implemented in accordance with and subject to the provisions
of the domestic law of a Party.
Article 6
EXTRADITION
1. This article shall apply to the offences established by the Parties in accordance with
article 3, paragraph 1.
2. Each of the offences to which this article applies shall be deemed to be included as
an extractable offence in any extradition treaty existing between the Parties. The Parties
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