MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT

Arrangement of Sections

1. Short title.

PART I

APPLICATION OF THE ACT AND REQUEST FOR ASSISTANCE

2. Application of the Act.

3. Object of the Act.

4. Central Authority to administer the Act.

4A. Duties and functions of the Central Authority.

5. Application made by a specified country or specified organisation.

5A. Prompt response to requests.

5B. Transmission of information spontaneously in exigent situations.

6. Refusal of assistance.

6A. Confidentiality.

PART II

ASSISTANCE IN RELATION TO LOCATING AND IDENTIFYING PERSONS

7. Reciprocating assistance in relation to locating and identifying persons.

PART III

ASSISTANCE IN RELATION TO THE SERVICE OF SUMMONS AND OTHER DOCUMENTS

8. Request by a specified country or specified organisation for service of any process or document in Sri Lanka.

9. Request by the Central Authority for service in a specified country or specified organisation.

PART IV

ASSISTANCE IN RELATION TO TAKING OF EVIDENCE AND PRODUCTION OF DOCUMENTS OR OTHER ARTICLES

10. Request by a specified country or specified organisation for evidence to be taken and documents to be produced in Sri Lanka.

11. Request by Central Authority for evidence to be taken in and documents to be produced in a specified country or specified organisation.

PART V

ARRANGEMENTS FOR PERSONS TO GIVE EVIDENCE OR ASSIST INVESTIGATIONS

12. Request by a specified country or specified organisation for prisoner in Sri Lanka to give evidence or assist investigation.

13. Request by the Central Authority for prisoner or other person in specified country or specified organisation to give evidence or assist an investigation.

13A. Facilitation of video conferencing technology.

13B. Joint investigations.

14. Immunity from prosecution of persons brought to Sri Lanka.

PART VA

Assistance in Relation to FINDINGS OF BRIBERY OF FOREIGN PUBLIC OFFICIAL OR
OFFICIAL OF A PUBLIC INTERNATIONAL ORGANISATION

14A. Request by a specified country or specified organisation for identifying &c. of bribery of a foreign official.

14B. Request by Sri Lanka for identifying &c. of bribery of a foreign official.

PART VI

ASSISTANCE IN RELATION TO SEARCH AND SEIZURE

15. Request by a specified country or specified organisation for search and seizure.

16. Request by Sri Lanka for search and seizure

PART VII

TRACING PROCEEDS OF CRIME AND ENFORCEMENT OF ORDERS

17. Request by a specified country or specified organisation for tracing proceeds of crime.

18. Request by Sri Lanka for tracing proceeds of crime.

19. Request by a specified country or specified organisation for enforcement of orders of court.

20. Requests by Sri Lanka for enforcement of orders of court.

PART VIIA

EXPEDITED PRESERVATION OF STORED DATA
IN RELATION TO COMPUTER CRIMES

20A. Relevant Secretary to a Ministry to make order to preserve data.

20B. Period of preservation of data.

20C. Mode of preservation.

20D. Release of preserved data.

20E. Production of stored computer data.

20F. Search and seizure of computer data.

PART VIII

GENERAL

21. Authentication of documents.

21A. Principles of mutuality and reciprocity.

21B. Language.

22. Regulations.

23. Sinhala text to prevail on case of inconsistency.

24. Interpretation.

SCHEDULE

25 of 2002,

24 of 2018.

AN ACT to provide for the rendering of assistance in criminal matters by Sri Lanka and specified countries; and for matters connected therewith or incidental, thereto.

[Date of Commencement: 22nd October, 2002]

1. Short title.

This Act may be cited as the Mutual Assistance in Criminal Matters Act.

PART I

Application of the Act and Request for Assistance

2. Application of the Act.

(1) The Minister may by Order published in the Gazette declare that the provisions of this Act shall apply to—

(a) every country that is a party to an international or a regional Convention or other agreement which is in the interest of mutual assistance in criminal matters, to which Sri Lanka has become a party, whether before or after the date of commencement of this Act;

(b) a country which has entered into an agreement with Sri Lanka for mutual assistance in criminal matters;

(c) a country which has not entered into any agreement with Sri Lanka, where the Minister may determine that it is in the best interests of the sovereign nations that Sri Lanka extends and obtains assistance on the basis of
reciprocity;

(d) an intergovernmental organisation combatting corruption, money laundering or financing of terrorism, on such terms and conditions as may be necessary and on the assurance of reciprocity.

(2) Every Order made under this section shall recite the terms of the agreement, if any, in consequence of which it was made. Such Order shall come into operation on the date of publication of such Order in the Gazette or on such later date as may be specified therein and shall remain in force so long as may be specified in such Order or for such period as the agreement in consequence of which it was made, remains in force.

(3) Every Order made by the Minister shall as soon as convenient after its publication in the Gazette, be brought before Parliament for its approval. Any Order, which is not approved, shall be deemed to be rescinded as from the date of such disapproval, but without prejudice to anything previously done thereunder.

(4) A notification of the date on which an Order is rescinded shall be published in the Gazette.

(5) Every country or intergovernmental organisation in respect of which an Order is made and is for the time being in force shall hereinafter be referred to as the “specified country or specified organisation.”.

[S 2 subs by s 2 of Act 24 of 2018.]

3. Object of the Act.

(1) The object of this Act is to facilitate the provision and obtaining by Sri Lanka of assistance in criminal and related matters, including—

(a) the locations and identification of witnesses or suspects;

(b) the service of documents;

(c) the examination and interviewing of witnesses or suspected persons;

(d) the provision and obtaining of evidence, documents, other articles or information;

(e) the execution of requests for search and seizure;

(f) the effecting of temporary transfer of a person in custody to appear as a witness;

(g) the facilitation of the personal appearance of witnesses;

(h) the criminal infringement of intellectual property including copyright infringement;

(i) the information relating to the location of a computer system or any other property connected with any criminal activity;

(j) the enforcement of any orders for the payment of fines;

(k) the forfeiture or freezing of property pursuant to the relevant laws on such matters;

(l) the tracing of crimes committed via internet, information communications technology, cloud computing, blockchain technology and other computer networks including the trading of any digital currencies;

(m) the bribery of any foreign public official or official of a public international organisation and their respective proxies and beneficiaries;

(n) the expedited preservation of stored computer data and expedited disclosure of preserved traffic data and data retention;

(o) the location of proceeds of a criminal activity;

(p) the use of documentary evidence obtained in a specified country or specified organisation through specific authorisation to be made admissible in a judicial proceeding; and

(q) the admissibility and applicability of evidence led from a specified country or specified organisation through video conferencing technology.

(2) Nothing in this Act shall preclude the granting or obtaining of any other form or nature of assistance for investigation in connection with judicial proceedings, connected with criminal matters to or from a specified country or specified organisation. Such assistance may include controlled operations, joint investigations, the use of other special investigative techniques including the use of diverse search engines and the transfer of criminal proceedings to another court.

[S 3 subs by s 3 of Act 24 of 2018.]

4. Central Authority to administer the Act.

(1) The Secretary to the Ministry of the Minister, shall be the Central Authority for the purposes of this Act (hereinafter referred to as the “Central Authority”).

(2) The Central Authority may authorise an Additional Secretary, in writing to act on behalf of the Central Authority for the purpose of this Act.

(3) The Central Authority shall designate competent authorities who shall process information to requests as directed by the Central Authority.

(4) Where the Central Authority is unable to carry out his duties on account of ill health or other infirmity or being convicted of an offence, the Minister shall appoint an Additional Secretary to administer the Act, within three days of such inability.

[S 4 subs by s 4 of Act 24 of 2018.]

4A. Duties and functions of the Central Authority.

The Central Authority—

(a) shall take all reasonable steps to ensure prompt action in respect of all requests, together with the assistance of such other entities or persons, as may be necessary;

(b) may direct a request received under section 5, to a competent authority to provide necessary information or assistance;

(c) shall prioritise the execution of urgent requests;

(d) shall maintain contact details of relevant local and foreign authorities;

(e) shall have a dedicated unit to maintain a proper system to manage incoming and outgoing requests; and

(f) may issue guidelines and circulars to administer the provisions of the Act.

[S 4A ins by s 4 of Act 24 of 2018.]

5. Application made by a specified country or specified organisation.

(1) An application shall be made to the Central Authority by the appropriate authority of a specified country or specified organisation requesting for information or assistance in respect of such criminal and related matters referred to in this Act. Such information shall be obtained to prevent, detect, investigate or institute proceedings in respect of a criminal activity within or outside that country.

(2) The Application shall be made substantially in the Form set out in the Schedule hereto and shall be accompanied by such documents as may be specified for that purpose by the Central Authority to enable prompt action under section 5A.

(3) Notwithstanding the provisions of subsection (1), a request which conforms to the provisions of subsection (2) may be forwarded through electronic means directly to the relevant competent authority through the appropriate authority of a specified country or specified organisation.

(4) Where a request is made directly to a competent authority under subsection (3), the said competent authority shall immediately inform the Central Authority by forwarding a copy of the relevant request.

(5) Assistance or information on a request made under this section referred to the competent authority by the Central Authority shall, subject to the provisions of section 6, be transmitted to the appropriate authority of a specified country or specified organisation directly—

(a) by the Central Authority; or

(b) by the relevant competent authority,

and the said competent authority shall report to the Central Authority on the progress made or on the completion of the request.

(6) No court in Sri Lanka may reject a request on the grounds that the Central Authority did not receive such request directly from the appropriate authority of a specified country or specified organisation.

[S 5 subs by s 5 of Act 24 of 2018.]

5A. Prompt response to requests.

(1) The Central Authority, on receiving a request may as soon as possible either approve, approve partially, approve subject to such conditions as may be necessary, postpone or refuse such request.

(2) Upon receipt of a request the Central Authority shall promptly–

(a) direct a competent authority to process the information in respect of the request;

(b) inform the appropriate authority of a specified country or specified organisation—

(i) of the outcome of the execution of the request, with reasons;

(ii) of any reasons that render impossible the execution of the request or are likely to delay it significantly.

[S 5A ins by s 5 of Act 24 of 2018.]

5B. Transmission of information spontaneously in exigent situations.

(1) The Central Authority may direct a competent authority to spontaneously transmit information requested relating to a criminal matter to an appropriate authority of a specified country or specified organisation in exigent situations, on the assurance of reciprocity and on such conditions as may be necessary for the purposes of confidentiality.

(2) For the purpose of this section an “exigent situation” shall be determined by the Central Authority, having considered the gravity of the offence or the insidious nature of the criminal matter, setting out reasons in writing.

[S 5B ins by s 5 of Act 24 of 2018.]

6. Refusal of assistance.

(1) A request by the appropriate authority of a specified country or specified organisation for assistance under this Act shall be refused, in whole or in part, if in the opinion of the Central Authority or the competent authority having consulted the Central Authority—

[S 6(1) am by s 6(1) of Act 24 of 2018.]

(a) the request relates to the prosecution or punishment of a person in respect of an act or omission which, if it had occurred in Sri Lanka would not have constituted an offence under the law of Sri Lanka;

(b) the request relates to the prosecution or punishment of a person for an offence of a political character;

(c) the request relates to the prosecution or punishment of a person in respect of an act or omission which if it had occurred in Sri Lanka, would have constituted an offence only under the military law of Sri Lanka;

(d) a request relates to the prosecution of a person in connection with a criminal matter, where—

(i) criminal investigations or proceedings has commenced in Sri Lanka; or

(ii) such person has been acquitted or convicted in accordance with the laws of Sri Lanka,

in respect of that offence or another offence constituted by the same act or omission as that which constituted the offence;

[S 6(1)(d) subs by s 6(2) of Act 24 of 2018.]

(e) compliance with the request would be contrary to the Constitution of Sri Lanka or prejudicial to national security, international relations or public policy;

(f) based on substantial grounds, compliance with the request would facilitate the prosecution or punishment of or cause prejudice to any person on account of his race, religion, language, caste, sex, political opinions or place of birth:

Provided that it shall be lawful for the Central Authority to entertain a request relating to an act or omission which would not have constituted an offence under the law of Sri Lanka, if, in the opinion of the Central Authority, such act or omission is of a serious nature and is a criminal matter within the meaning of this Act.

(2) For the purposes of subsection (1) an offence shall be deemed not to be an offence of a political character if it is an offence within the scope of an international Convention to which both Sri Lanka and the specified country or specified organisation making the request are parties and which imposes on the parties thereto an obligation to extradite or prosecute a person accused of the commission of that offence.

6A. Confidentiality.

(1) Every officer referred to under section 4 shall consider all matters strictly confidential.

(2) Unless otherwise authorised by law, a person who, because of his official capacity or office, and being aware of the confidential nature of the request, has knowledge of—

(a) the contents of such request made under this Act;

(b) the fact that such request has been, or is about to be made; or

(c) the fact that such request has been granted or refused,

shall not disclose such content or facts except to the extent that the disclosure is necessary to execute the foreign request.

(3) In order to comply with a request, if confidentiality cannot be upheld as specified in subsection (2), the Central Authority shall be promptly informed and the Central Authority shall in turn inform the appropriate authority of a specified country or specified organisation, which shall then determine whether the request should nevertheless be executed.

(4) Any person who fails to comply with this section, commits an offence and shall be liable on conviction by the High Court of the Province to a fine exceeding one hundred thousand rupees taking into consideration the nature and gravity of the non-compliance: Provided, however, such fine shall not exceed a sum of five million rupees in any given case.

(5) For the purposes of this Act, a request for information relating to a criminal matter may be granted after ensuring the authenticity of the requesting person.

[S 6A ins by s 7 of Act 24 of 2018.]

PART II

Assistance in Relation to Locating and Identifying Persons

7. Reciprocating assistance in relation to locating and identifying persons.

(1) Where the Central Authority receives a request from the appropriate authority of a specified country or specified organisation, for his assistance in locating a person who—

(a) is suspected to be involved in; or

(b) is able to provide evidence or assistance in,

any criminal matter falling within the jurisdiction of a criminal court in such specified country or specified organisation and who is believed to be in Sri Lanka, or if the identity of such person is not known, his assistance in identifying and locating such person, the Central Authority may in his discretion, refer such request to the Secretary to the Ministry of the Minister in charge of the subject of Defence and request him to cause such inquiries to be made as may be necessary to comply with the request of the appropriate authority, and upon receipt of a report of the inquiries from such Secretary shall cause such report to be sent to the appropriate authority of the specified country or specified organisation making the request.

(2) Where there are reasonable grounds to believe that a person who is suspected to be involved in or is able to provide evidence or assistance in any criminal matter within the jurisdiction of a criminal court in Sri Lanka,—

(a) is in a specified country or specified organisation, the Central Authority shall on his own volition or on the request of a competent authority, request the appropriate authority of a specified country or specified organisation in such specified country to assist in locating such person;

(b) where the identity of such person is not known, the Central Authority may in his discretion or on the request of a competent authority, request the appropriate authority of a specified country or specified organisation to—

(i) interview;

(ii) record statements;

(iii) obtain documents or articles,

from such persons believed to be connected with such person and forward such information to the Central Authority. The Central Authority shall where necessary, forward the same to the relevant competent authority. Documents or articles obtained shall be clearly marked by the appropriate
authority.

[S 7(2) subs by s 8(1) of Act 24 of 2018.]

(3) A request under subsection (2), shall specify the purpose for which such assistance is required and shall provide any other information that may facilitate the identification or location of such person.

(4) Subject to sections 10 and 21, the interviewing and recording of a statement of a person as specified in subsection (2), shall be done by a law enforcement authority in Sri Lanka or a law enforcement authority as may be assigned by an appropriate authority or by a combined team of the said law enforcement authorities.

[S 7(4) ins by s 8(2) of Act 24 of 2018.]

PART III

Assistance in Relation to the Service of Summons and other Documents

8. Request by a specified country or specified organisation for service of any process or document in Sri Lanka.

(1) Where the Central Authority approves a request from the appropriate authority of a specified country or a specified organisation for the service
of—

(a) summons or other process requiring a person to appear as a defendant or attend as a witness in criminal proceedings in that country;

(b) a document issued by a court exercising criminal jurisdiction in that country and recording a decision of the court made in the exercise of that jurisdiction,

the Central Authority shall promptly forward such request together with the decision of that court to the Magistrate in Sri Lanka within whose jurisdiction such person is residing, for service.

[S 8(1) subs by s 9 of Act 24 of 2018.]

(2) Where the appropriate authority has, in his request to the Central Authority, specified the mode of service, the Magistrate of the Magistrate’s Court to which such process or document has been sent under subsection (1), shall cause such process or document to be served, wherever practicable in accordance with such request unless such mode is inconsistent with the laws of Sri Lanka. Where the mode of service specified in the request is inconsistent with the Laws of Sri Lanka, the Magistrate shall cause such process or document to be served in accordance with the Laws of Sri Lanka.

(3) Where such process or document is served on the person to whom the request relates the Magistrate shall transmit to the Central Authority, a certificate setting out when and how it was served, and shall, where available, attach thereto, an acknowledgement signed by the person on whom it was served.

(4) If such process or document cannot be duly served on the person to whom the request relates, the Magistrate’s Court to which such process or document was sent under subsection (1) shall subject to subsection (5), return such process or document to the Central Authority with a statement giving such information as the Court possesses as to the whereabouts of such person and unless the Central Authority is satisfied that such person is not residing in Sri Lanka, he shall deal with such process or document under subsection (1), where the Central Authority is satisfied that such person is not residing in Sri Lanka, he shall return such process or document to the appropriate authority in the specified country or specified organisation making the request.

(5) If the Magistrate of the Magistrate’s Court to whom the process or document is sent under subsection (1), is satisfied that such person is residing within the jurisdiction of another Magistrate’s Court in Sri Lanka, he shall sent such process or document to the Magistrate of that other court and shall inform the Central Authority that he has done so.

(6) The Magistrate of the Magistrate’s Court to which the process or document is sent under subsection (5), shall proceed as if it had been sent to such court under
subsection (1). The Magistrate shall after it has been served on the person to whom the request relates, transmit to the Central Authority a certificate setting out when and how it was served and shall, where available attach thereto an acknowledgement signed by the person on whom it was served.

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