Luis María Arribas.

21. Mutual legal assistance may be refused:

(a) If the request is not made in conformity with the provisions of this article;

(b) If the requested State Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests;

(c) If the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction;

(d) If it would be contrary to the legal system of the requested State Party relating to mutual legal assistance for the request to be granted.

(a) Summary of information relevant to reviewing the implementation of the article

The UN Convention against Corruption is self-executing at the national level. Therefore, provisions of Paragraph 21 of Article 46 of the mentioned Convention may be applied directly in Georgia.

Despite this, grounds for refusal of mutual legal assistance are also envisaged under the law on International Cooperation in Criminal Matters. Namely, according to Article 12 of the above indicated law, legal assistance shall not be provided, if:

a) the execution of the MLA request may prejudice the sovereignty, security, public order or other essential interests of Georgia;

b) the execution of the MLA request contradicts the legislation of Georgia;

c) the crime regarding which the assistance is requested is considered by the competent Georgian authorities to be a political offence or related to a political offence.

d) the execution of the MLA request may prejudice the universally recognized rights and fundamental freedoms of an individual;

e) the crime regarding which the assistance is requested, is a military offence, unless the respective international agreement, ad hoc agreement or the conditions of the reciprocal cooperation provides otherwise;

f) the execution of the MLA request will be contrary to the principle of Non bis in idem; Besides, when the competent foreign authorities request Georgia to conduct search or seizure, such kind of assistance may be provided if:

a) the crime regarding which the assistance is requested, is punishable both by the legislations of Georgia and the respective requesting state (dual criminality principle);

b) the crime regarding which the assistance is requested, is an extraditable offence according to the legislation of Georgia;

c) execution of the MLA request complies with the legislation of Georgia. It should be noted that the competent Georgian authorities are also able not to comply with the mentioned requirements regarding search or seizure, if the respective international agreement, ad hoc agreement and the conditions of the reciprocal cooperation provide otherwise.

In addition, when the competent foreign authorities request the temporary transfer of a person in custody as a witness for the purposes of participation in investigative and court actions, the Ministry of Justice of Georgia has the right not to comply with the relevant MLA request: a) if the person in custody does not consent;

b) if the presence of a person in custody is necessary at criminal proceedings pending in the territory of Georgia;

c) if transfer of a person in custody is liable to prolong his/her detention. Apart from the mandatory grounds for refusal, the law on International Cooperation in Criminal Matters also allows the competent Georgian authorities to temporarily postpone the execution of foreign MLA requests. This is the case when transmitting the evidence or other documents to the requesting state may prejudice the criminal proceedings conducted in Georgia (Article 12§4). Georgia has never received/sent MLA requests on the basis of the UN Convention against Corruption. However, when cooperating with foreign states regarding other types of crimes, the most prevalent grounds for refusal used by the relevant Georgian authorities were the following: the person regarding whom the assistance was requested was not located in Georgia; the requested procedural action was not envisaged by the legislation of Georgia; the request referred to the interrogation of a person, who was in the occupied territory of the Autonomous Republic of Abkhazia, Georgia; the foreign MLA request did not contain enough data as envisaged by the relevant international treaty and despite of requesting additional information, the relevant foreign state never submitted it.

When executing Georgia’s MLA requests by foreign states, the most prevalent ground for refusal was the impossibility of location persons concerned, as well as non-existence of the requested evidence at the territory of the above mentioned states.

Law on International Cooperation in Criminal Matters – Article 12 (see above) Law on Normative Acts – Article 7 (see above)

The reviewing experts referred to the possibility of direct application of the Convention as well as to the provisions of Art. 11, paragraph 3, of theICCM. It was noted that the refusal on the grounds of “other essential interests” could be considered too wide in case no clearer specification is given.

Article 46 Mutual legal assistance Paragraph 22

22. States Parties may not refuse a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters.

(a) Summary of information relevant to reviewing the implementation of the article

Neither binding international treaties nor the domestic legislation prohibit the rendering mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters. Therefore, mutual legal assistance may be afforded irrespective of the fact that the MLA request involves fiscal offences.

Georgia has never received letters rogatory on the basis of the UN Convention against Corruption. However, when cooperating with foreign states on the basis of other international treaties, fiscal offences have never been the impediment for the execution of foreign MLA requests. In practice, when such requests were submitted to the Ministry of Justice of Georgia by the respective foreign states, they were always executed in the general manner.

(b) Observations on the implementation of the article

Article 46, paragraph 22, is a mandatory article. The reviewing experts noted that the Georgian legislation does not prohibit Therefore, mutual legal assistance may be afforded irrespective of the fact that the MLA request involves fiscal offences.

Article 46 Mutual legal assistance Paragraph 23

23. Reasons shall be given for any refusal of mutual legal assistance.

(a) Summary of information relevant to reviewing the implementation of the article Provisions of Paragraph 23 of Article 46 of the UN Convention against Corruption are applied directly and, therefore, the competent Georgian authorities are obliged to provide relevant foreign states with the reasons for not complying with mutual legal assistance requests in case of cooperation regarding the corruption crimes covered by the mentioned Convention. Despite this, the law on International Cooperation in Criminal Matters also contains provisions under which the Ministry of Justice of Georgia has obligation to notify the competent foreign authorities about the reasons for any refusal of mutual legal assistance (Article 12, paragraph 6).

Georgia has never received any MLA request on the basis of the UN Convention against Corruption. However, when cooperating with foreign authorities on the basis of other

international treaties, the Ministry of Justice of Georgia has always provided its foreign counterparts with the reasons which made it impossible to execute their letters rogatory.

Law on International Cooperation in Criminal Matters – Article 12 (see above) Law on Normative Acts – Article 7 (see above)

(b) Observations on the implementation of the article

The reviewing experts noted that the direct application of Article 46, paragraph 23, as well as Article 12, paragraph 6, of the ICCM provide sufficient regulations in this regard.

Article 46 Mutual legal assistance Paragraph 24

24. The requested State Party shall execute the request for mutual legal assistance as soon as possible and shall take as full account as possible of any deadlines suggested by the requesting State Party and for which reasons are given, preferably in the request. The requesting State Party may make reasonable requests for information on the status and progress of measures taken by the requested State Party to satisfy its request. The requested State Party shall respond to reasonable requests by the requesting State Party on the status, and progress in its handling, of the request. The requesting State Party shall promptly inform the requested State Party when the assistance sought is no longer required.

(a) Summary of information relevant to reviewing the implementation of the article Provisions of Paragraph 24 of Article 46 of the UN Convention against Corruption are applied directly at the national level. Besides, the regulations and practice of the application of the procedures indicated in Paragraph 24 of Article 46 of the mentioned Convention are as follows:

The law on International Cooperation in Criminal Matters does not explicitly establish the time frames within which foreign MLA requests are to be executed, since the time needed for providing mutual legal assistance depends on the nature and type of the requested procedural actions. However, in practice, the competent Georgian officials (investigator, prosecutor, judge) dealing with mutual legal assistance requests periodically notify the International Cooperation Unit of the Legal Department of the Chief Prosecutor’s Office, Ministry of Justice of Georgia about the measures taken by them with regard to the execution of foreign letters rogatory. Such notifications are submitted to the Ministry of Justice either orally or in writing after expiring approximately 40 days from receiving the relevant letters rogatory. The average time needed for the execution of the requests is 2-3 months. Nevertheless, in case of urgency, the competent Georgian authorities are also able to comply with the deadline suggested by the requesting state. Besides, upon the request, the Ministry of Justice of Georgia is authorized to provide the appropriate foreign state with the information on the status of its letter rogatory previously submitted to the competent Georgian authorities. If the execution of a Georgian MLA request is no longer necessary on the territory of another state, the Ministry of Justice of Georgia dully notifies foreign counterparts in this regard.

Georgia has never received any MLA request from foreign states on the basis of the UN Convention against Corruption. Therefore, no information about the implementation is

available. The detailed information about the customary length of time for the execution of foreign MLA requests regarding other corruption related cases is given above.

Law on Normative Acts – Article 7 (see above)

(b) Observations on the implementation of the article

The reviewing experts noted the possibility of direct application of Article 46, paragraph 24 of the UN Convention against Corruption. They highlighted that the ICCM did not explicitly establish time frames within which foreign MLA requests are to be executed, since the time needed for providing mutual legal assistance depends on the nature and type of the requested procedural actions. The additional information of Georgia in regard to the implementation and average time needed, were considered to be sufficient.

Article 46 Mutual legal assistance Paragraph 25

25. Mutual legal assistance may be postponed by the requested State Party on the ground that it interferes with an ongoing investigation, prosecution or judicial proceeding.

(a) Summary of information relevant to reviewing the implementation of the article The competent Georgian agencies are authorized to apply provisions of Paragraph 25 of Article 46 of the UN Convention against Corruption directly in case of cooperation with foreign states regarding the corruption crimes covered by the mentioned Convention. Nevertheless, the law on International Cooperation in Criminal Matters also allows the competent Georgian authorities to temporarily postpone the execution of foreign MLA requests. This is the case when transmitting the evidence or other documents to the requesting state may prejudice the criminal proceedings being conducted in Georgia (Article 12, paragraph 4).

Georgia has never received any MLA request from foreign states on the basis of the UN Convention against Corruption. Therefore, no information is available on the cases in which Georgia postponed the provision of mutual legal assistance on the ground that it interfered with an ongoing investigation, prosecution or judicial proceeding. Even at the time of cooperation with foreign authorities regarding other cases, there were only a few, when Georgia postponed the execution of incoming l etters rogatory on the ground referred to above. However, in all cases, as soon as there was no longer necessity for postponing the execution of submitted letters rogatory, Georgia immediately provided the respective foreign states with the requested assistance.

Law on International Cooperation in Criminal Matters – Article 12, paragraph 4 (see above) Law on Normative Acts – Article 7 (see above)

(b) Observations on the implementation of the article

The reviewing experts noted the possibility of direct application of Article 46, paragraph 25 of the UN Convention against Corruption and Article 12, paragraph 4, of the ICCM which regulate the provisions sufficiently. The supplementary information of Georgia was satisfactory in regard to the implementation.

Article 46 Mutual legal assistance Paragraph 26

26. Before refusing a request pursuant to paragraph 21 of this article or postponing its execution pursuant to paragraph 25 of this article, the requested State Party shall consult with the requesting State Party to consider whether assistance may be granted subject to such terms and conditions as it deems necessary. If the requesting State Party accepts assistance subject to those conditions, it shall comply with the conditions.

(a) Summary of information relevant to reviewing the implementation of the article There is no provision in the Georgian domestic legislation which explicitly provides possibility of holding consultation with the requesting state before postponing or refusing request. Despite this, since holding the mentioned consultations is not prohibited under the domestic legislation, the competent Georgian authorities are able to apply the provisions of Paragraph 26 of Article 46 of the UN Convention against Corruption directly due to the self- executing power of international treaties binding for Georgia.

As mentioned above, Georgia has never received any MLA request from foreign states on the basis of the UN Convention against Corruption. Therefore, no information is available on the cases in which Georgia postponed the provision of mutual legal assistance on the ground that it interfered with an ongoing investigation, prosecution or judicial proceeding.

Law on Normative Acts – Article 7 (see above)

(b) Observations on the implementation of the article

The reviewing experts noted that there is no provision in the Georgian domestic legislation which explicitly provides possibility of holding consultation with the requesting state before postponing or refusing request. Despite this, since holding the mentioned consultations is not prohibited under the domestic legislation, the competent Georgian authorities are able to apply the provisions of Paragraph 26 of Article 46 of the UN Convention against Corruption directly due to the self-executing power of international treaties binding for Georgia. It was recommended that such consultations should be used in practice also if the request in regard to a corruption offence was not based on UNCAC. Reference in the ICCM could be one option to safeguard such approach.

Article 46 Mutual legal assistance Paragraph 27

27. Without prejudice to the application of paragraph 12 of this article, a witness, expert or other person who, at the request of the requesting State Party, consents to give evidence in a proceeding or to assist in an investigation, prosecution or judicial proceeding in the territory of the requesting State Party shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in that territory in respect of acts, omissions or convictions prior to his or her departure from the territory of the requested State Party. Such safe conduct shall cease when the witness, expert or other person having had, for a period of fifteen consecutive days or for any period agreed upon by the States Parties from the date on which he or she has been officially informed that his or her presence is no longer required by the judicial authorities, an opportunity of leaving, has nevertheless remained voluntarily in the territory of the requesting State Party or, having left it, has returned of his or her own free will.

(a) Summary of information relevant to reviewing the implementation of the article

Due to the self-executing power of binding international treaties at the national level, Georgia can apply Paragraph 27 of Article 46 of the UN Convention against Corruption directly. Despite this, procedures similar to those indicated in the abovementioned Paragraph are also defined by Article 7 of the law on International Cooperation in Criminal Matters.

As indicated above, Georgia has never received any MLA request from foreign states on the basis of the UN Convention against Corruption. However, at the time of cooperation with foreign states regarding other cases, there were some in which persons being abroad were summoned for the purposes of giving statements as witnesses or experts. Nevertheless, none of the above mentioned persons have complied with the summons. Therefore, no more information is available in this regard.

Law on Normative Acts – Article 7 (see above)

Law on International Cooperation in Criminal Matters – Article 7

Excerpts from the law on International Cooperation in Criminal Matters:

Article 7: Summon of a person being in the territory of a foreign state with regard to a criminal case pending before the competent authorities of Georgia.

1. In case of existence of a relevant legal basis for cooperation, an investigator, a prosecutor or a judge (a court) shall be authorized to request the summon of a person being in the territory of a foreign state in the capacity of accused, witness, expert or victim with regard to the pending criminal case, through the Ministry of Justice of Georgia.

2. The appearance of the person referred to in Paragraph 1 of this Article shall be made on the basis of summons and in the form of a mutual legal assistance request, which shall be sent to the competent authority of a foreign state.

3. The witness, expert and victim summoned in the territory of Georgia in accordance with the rule prescribed by this Article shall be reimbursed for all expenses related to their travel and stay in the territory of Georgia, as well as the expenses for the distraction from his/her basic job. The expert summoned shall additionally be entitled to receive all the expenses and remuneration related to carrying out of his/her work.

4. The summon of a witness, an expert or a victim referred to in Paragraph 1 of this Article or the mutual legal assistance request shall indicate the amount of the expenses refundable to the person summoned in case of his/her appearance.

5. Unless an international treaty of Georgia, ad hocagreement or the conditions of reciprocal cooperation provides otherwise, on the basis of the prior request of the Ministry of Justice of Georgia, the relevant foreign state may grant the witness, expert or victim an advance, which shall subsequently be refunded