AGREEMENT
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA AND THE GOVERNMENT OF THE REPUBLIC OF
AZERBAIJAN ON MUTUAL ASSISTANCE AND CO-OPERATION IN CUSTOMS MATTERS
The Government
of the Republic of Austria and the Government of the Republic of Azerbaijan,
hereinafter referred to as the Contracting Parties;
Considering
that the infringements against customs legislation are prejudicial to the
economic, fiscal and commercial interests and to the public health of their
respective countries;
Considering the
importance of assuring the accurate assessment of customs duties and other
taxes;
Recognizing the
need for international co-operation in matters related to the administration
and enforcement of the customs legislation;
Convinced that
action against customs infringements can be made more effective by co-operation
between their competent administrative authorities;
Having regard
to obligations imposed under international conventions already accepted by or
applied to the Contracting Parties and having regard also to the Recommendation
of the Customs Co-operation Council on Mutual Administrative Assistance of
December 5, 1953;
Have agreed as
follows:
DEFINITIONS
Article
1
For the
purposes of this Agreement,
1. „Customs Authorities“ shall mean, in the
Republic of Austria, the Federal Ministry of Finance, in the Republic of
Azerbaijan, the State Customs Committee.
2. „Customs legislation“ shall mean any legal or
regulatory provision applicable in the territories of the Contracting Parties
concerning the import, the export and transit of goods as they relate to
Customs duties, charges and other taxes, including measures in the field of
prohibition, restriction and control.
3. „Customs infringements“ shall mean any offence
or attempted offence of the customs legislation.
4. „Applicant Authority“ shall mean the Customs
Administration making a request for assistance in customs matters.
5. „Requested Authority“ shall mean the Customs
Administration receiving the request for assistance in customs matters.
6. „Narcotic drug“ shall mean any substance,
natural or synthetic, enumerated in the Lists I. and II. of the 1961 United
Nations Single Convention of Narcotic Drugs as amended by the Protocol of 1972.
7. „Psychotropic substances“ shall mean any
substance, natural or synthetic, or any natural material, enumerated in the
Lists I., II., III. and IV. of the 1971 United Nations Convention on
Psychotropic Substances.
8. „Precursors“ shall mean chemical substances
under control used in the production of narcotic drugs and psychotropic
substances, enumerated in the Lists I. and II. of the 1988 United Nations
Convention Against the Illicit Traffic of Narcotic Drugs and Psychotropic
Substances.
9. „Controlled delivery“ shall mean the technique
of allowing illicit or suspect consignments of narcotic drugs, psychotropic
substances and precursors, or substances substituted for them, to pass out,
through or into the territory of one or more countries, with the knowledge and
under supervision of their competent authorities, with the view to identifying
persons involved in the comission of offences.
10. „Information“ shall mean, inter alia, reports,
records, documents and documentation, whether computerized or not, as well as
authenticated copies thereof.
11. „Personal data“ shall mean all information
relating to an identified or identifiable individual.
SCOPE
OF AGREEMENT
Article
2
1. The
Contracting Parties agree to assist each other through their Customs
Authorities in order to ensure the correct application of the customs
legislation, in particular by preventing, investigating, repressing and
prosecuting any customs infringement in accordance with the provisions of this
Agreement.
2. All
assistance under this Agreement by either Contracting Party will be performed
in accordance with its domestic legislation. Assistance as provided for in
paragraph 1 shall be provided for use in all proceedings, in the applicant
Contracting Party, whether judicial, administrative or investigative and shall
include, but not be limited to, proceedings on classification, value, origin,
and other customs procedures relevant to the enforcement of the Customs
legislation and proceedings involving fines, penalties, forfeitures and
liquidated joint debts and guarantees.
3. Mutual
assistance under this agreement does not affect the provisions applicable
regarding mutual assistance in criminal matters, but the Customs
Administrations of the Contracting Parties may request or provide mutual
assistance in the course of any investigation or in connection with any
judicial or administrative proceedings carried out by a Customs Administration
of one of the Contracting Parties.
4. Mutual
assistance under this Agreement shall not cover the arrest of persons or the
recovery of duties or taxes on importation and exportation and of pecuniary
penalties or other charges.
ASSISTANCE ON
REQUEST
Article 3
1. The
Contracting Parties shall assist each other in the areas within their
competences, in the manner and under the conditions laid down in this
Agreement, to ensure that customs legislation is correctly applied and the
customs duties and taxes are assessed accurately, including all relevant
information regarding activities noted which are or could be operations which
may result in customs infringements.
2. At the
request of the applicant authority, the requested authority shall inform :
- whether goods exported from the territory of
one of the Contracting Parties have been properly imported into the territory
of the other Contracting Party, specifying where appropriate, the customs
procedure applied to the goods;
- whether goods imported into the territory of
one of the Contracting Parties have been properly exported from the territory
of the other Contracting Party, specifying where appropriate, the customs
procedure applied to the goods.
SPONTANEOUS
ASSISTANCE
Article
4
The Contracting
Parties shall assist each other, at their own initiative and in accordance with
their legal or regulatory provisions, if they consider that to be necessary for
the correct application of customs legislation and the accurate assessment of
customs duties and taxes, particularly by providing all relevant information
about:
- activities which are or appear to be an
infringement of customs legislation within the territory of the other Contracting Party;
- new means and methods used in comitting
customs infringements;
- goods known to be subject to a
infringement of customs legislation;
- means of transport in respect of which
there are reasonable grounds for believing that they have been, are, or may be used in
infringements of customs legislation.
SURVEILLANCE
OF PERSONS; GOODS; MEANS OF TRANSPORTS AND LOCALITITIES
Article
5
At the request
of the applicant authority, the requested authority shall, within the framework
of its legal or regulatory provisions and to the extent of its abilities, take
the necessary steps to ensure special surveillance of:
1. natural or legal persons in respect of whom
there are reasonable grounds for believing that they are or have been involved
in an infringement against the customs legislation within the territory of the
applicant Contracting Party;
2. goods that are or may be transported in such a
way that there are reasonable grounds for believing that they are intended to
be used in an infringement against the customs legislation in the territory of
the applicant Contracting Party;
3. means of transport suspected of being used in
customs infringements within the territory of the applicant Contracting Party;
4. places where goods have been or may be
assembled in such a way that there are reasonable grounds for believing that
they are connected with activities that may result in customs infringements in
the territory of the applicant Contracting Party.
FORM
AND SUBSTANCE OF REQUESTS
Article
6
1. Requests pursuant
to this Agreement shall be made in writing. Documents necessary for the
execution of such requests shall accompany the request. When required because
of the urgency of the situation, oral requests may also be accepted but shall
be promptly confirmed in writing. The documents provided for in this Agreement
may be replaced by computerized information produced in any form for the same
purpose.
2. Requests
pursuant to paragraph 1 of this Article shall include the following
information:
- the authority making the request;
- the measure requested;
- the object of and the reason for the request;
- the names and addresses of the natural or legal
person concerned in the proceedings, if known;
- a brief description of the matter under
consideration and the legal or regulatory provisions involved and
- a summary of the relevant facts and of the
enquiries already done.
3. Originals of
files, documents and other materials shall be requested only in cases where
copies would be insufficient. Upon specific request, copies of such files,
documents and other materials shall be appropriately authenticated.
4. Originals of
files, documents and other materials which have been transmitted shall be
returned at the earliest opportunity.
CHANNEL
OF COMMUNICATION
Article
7
1. Assistance
shall be carried out by direct communication between the respective Customs
Authorities.
2. In case the
Customs Authority of the requested Contracting Party is not the appropriate
authority to comply with a request, it shall, after appropriate consultation,
either promptly transmit the request to the appropriate authority, who shall
act upon the request according to its powers under the domestic legislation, or
advise the applicant authority of the appropriate procedure to be followed regarding
such a request.
EXECUTION
OF REQUESTS
Article
8
1. Requests for
assistance shall be executed in accordance with the legal or regulatory
provisions of the requested Contracting Party.
2. The
requested Authority shall proceed, within the limits of its competence and
available resources, as though it were acting on its own account.
3. The Customs
Authority of either Contracting Party shall, at the request of the Customs
Authority of the other Contracting Party, conduct any necessary investigation
within its competence , including the questioning of experts and witnesses or
persons suspected of having committed a customs infringement, and undertake
verifications, inspections and fact-finding inquiries in connection with the
matters referred to in this Agreement.
4. The
requested Authority may allow appointed officials of the applicant Authority to
be present in the territory of the requested Contracting Party, when its
officers are carrying out inquiries of interest to the applicant Authority,
including presence at such inquiries. The appointed officers shall be present
in an advisory role only and may not exercise the powers conferred on officials
of the requested Authority by the domestic law of the requested Contracting
Party. They shall, however, for the sole purpose of the inquiry being carried
out and in the presence of and through officials of the requested Authority,
have access to the same premises and same documents as those officials of the
requested Authority.
5. The
officials of the applicant Authority, authorized to investigate infringements
of customs legislation, may ask that officials of the requested Authority
review relevant books, registers and other documents or computerized data and
supply copies thereof or provide any information relating to the infringements.
6. When
officials of the applicant Authority are present in the territory of the
requested Contracting Party pursuant to this Agreement, they always have to be
able to identify themselves and shall be responsible for any offences they
might commit.
7. The
applicant Authority shall, if it so requests, be advised of the time and place
of the action to be taken in response to the request so that such action may be
co-ordinated.
EXPERTS
AND WITNESSES
Article
9
1. An official
of a requested Authority may be authorized to appear, within the limitations of
the authorization granted, as an expert or witness in judicial or
administrative proceedings regarding the matters covered by this Agreement in
the territory of the applicant Contracting Party, and produce such files,
documents or authenticated copies thereof, as may be needed for the
proceedings.
2. The request
for appearance shall indicate the type of the proceeding as well as the status
in which the official is called to testify.
DELIVERY OF DOCUMENTS
Article
10
1. At the
request of the applicant Authority the requested Authority shall, in accordance
with its legal and regulatory provisions take all necessary measures in order
to deliver any documents or to notify any decisions emanating from the
applicant Authority and falling within the scope of this Agreement, to an
addressee residing or established in the territory of the requested Contracting
Party.
2. Requests for
delivery of documents or notification of decisions shall be made in writing in
an official language of the requested Contracting Party or in an language
acceptable to the requested Authority. Additionally, the content of the
official document to be notified shall be accompanied by an authenticated
translation in an official language of the Contracting Party in which the
requested Authority is based.
3. Such
delivery shall be evidenced by a receipt of the addressee bearing the date of
delivery or by a certificate describing the manner and date of the delivery.
EXEMPTIONS
FROM ASSISTANCE
Article
11
1. In cases
where the requested Contracting Party is of the opinion that compliance with a
request would infringe upon its sovereignty, security, public policy or other
substantive national interest or would involve a violation of a commercial,
industrial or professional secret, assistance can be refused or compliance may
be made subject to the satisfaction of certain conditions or requirements.
2. Assistance
may be postponed by the requested Authority on the ground if it interferes with
an ongoing investigation, prosecution or proceeding. In such a case, the
requested Authority shall consult with the applicant Authority to determine if
assistance can be given subject to such terms or conditions as the requested
Authority may require.
3. Where the
applicant Authority asks for assistance which it would itself be unable to
provide if so asked by the Customs Authority of the other Contracting Party, it
shall draw attention to that fact in its request. It shall then be left over to
the requested Authority to decide how to respond to such a request.
4. Whenever
assistance is denied or postponed, reasons for the denial or postponement shall
be notified to the applicant Authority without delay.
COSTS
Article
12
1. The
Contracting Parties shall normally waive all claims for reimbursement of costs
incurred in the execution of this Agreement, with the exception of expenses for
witnesses, fees of experts, and costs of interpreters other than government
employees.
2. If expenses
of a substantial and extraordinary nature are or will be required to execute
the request, the Customs Authorities of the Contracting Parties shall consult
to determine the terms and conditions under which the request will be executed
as well as the manner in which the costs shall be borne.
CONFIDENTIALITY
AND USE OF INFORMATION
Article
13
1. Any
information communicated in whatsoever form pursuant to this Agreement shall be
of a confidential nature. It shall be covered by the obligation of official
secrecy and shall enjoy the protection extended to like information under the
relevant legal and regulatory provisions of the Contracting Party, which
received it, and the corresponding provisions applying to the authorities of
the other Contracting Party.
2. Personal
data may only be transmitted if the level of personal protection afforded by
the legislation of the Contracting Parties is equivalent. The Contracting
Parties shall ensure at least a level of protection based on the principles
mentioned in the Annex to this Agreement, which is an integral part of the
Agreement.
3. Information
received in the course of mutual assistance may only be used for the purposes
specified in this Agreement, including the use in judicial or administrative
proceedings concerning the respective customs infringement.
4. The
applicant Authority shall not use evidence or information obtained under this
Agreement for purposes other than those stated in the request without the prior
consent of the requested Authority.
5. The
provisions of this Agreement do not affect the provisions applicable to the
exchange of information between the European Commission and the customs
authorities of the Member States of the European Community relating to
customs infringements of the financial interests of the European Community.
CONTROLLED
DELIVERY
Article
14
1. The
Contracting Parties shall take the necessary measures, within their
possibilities, to permit the appropriate use of controlled delivery for the
purpose of criminal investigations.
2. Decisions to
carry out controlled deliveries shall be made on a case-by-case basis and shall
take place in accordance with the domestic law and procedures of the requested
Contracting Party and in accordance with any arrangements or agreements which
may have been reached concerning the particular case.
3. Illicit
consignments whose controlled delivery is agreed to may, by mutual consent of
the competent authorities, be intercepted and allowed to continue with the
narcotic drugs or psychotropic substances intact or removed or replaced in
whole or in part.
IMPLEMENTATION
Article
15
1. The
Contracting Parties agree that the Federal Ministry of Finance of the Republic
of Austria and the State Customs Committee of the Republic of Azerbaijan may
communicate directly for the purpose of dealing with matters arising out of
this Agreement or any other customs matter which may be of mutual interest.
2. The
Contracting Parties may issue coordinated administrative directives for the
implementation of this Agreement.
3. The Customs
Authorities undertake by mutual accord to resolve problems arising from the
application of this Agreement. This does not exclude the settlement of such
disputes by diplomatic means.
ENTRY
INTO FORCE AND TERMINATION
Article
16
1. This
Agreement shall enter into force on the first day of the second month following
the date on which the Contracting Parties have notified each other by an
exchange of diplomatic notes that all necessary national legal procedures for
its entry into force have been fulfilled.
2. The Contracting
Parties agree to meet in order to review this Agreement upon request.
Amendments to the present agreements and the annex thereto will enter into
force under the same conditions as laid down in paragraph 1 of this Article.
3. This
Agreement may be terminated by either Contracting Party upon receipt by the
other Contracting Party of a written notice through diplomatic channels. In
such case, it shall cease to be in force six months after such notice has been
given.
IN WITNESS
THEREOF, the undersigned, being duly authorized by their respective
governments, have signed this Agreement.
Done at Vienna,
on 19. November 2002 , in German, Azerbaijani and English language, all the
texts being equally authentic. In case of divergence of the interpretation the
English text shall prevail.
For the Government of the Republic of Austria |
For the Government of the Republic of
Azerbaijan |
Dr.
Finz |
Farhad
Alijev |
ANNEX
BASIC
PRINCIPLES OF DATA PROTECTION
1. The Authority that communicates data shall
ensure that they are accurate and up-to-date.
2. If it emerges that inaccurate data have been
communicated or data have been communicated which should not have been
communicated or that lawfully communicated data are required at a later stage
to be erased in accordance with the law of the communicating Contracting Party,
the recipient authority shall be informed immediately thereof. It shall be
obliged to correct such data or have them erased.
3. If the recipient authority has reason to
believe that communicated data are inaccurate or should be erased, it shall
inform the communicating Contracting Party.
4. According to national laws the data
communicated shall be kept in a database for a period not exceeding that
necessary for the purposes for which they are communicated.
5. The right of a person concerned to receive
information about the personal data communicated shall be determined in
accordance with the National laws, regulations and procedures of the Contracting
Party in whose territory the information is requested. Before any decision is
taken on providing information, the communicating authority shall be given the
opportunity of stating its position.
6. In cases where communicated data should,
according to the law of the communicating Contracting Party, be erased or
amended, the persons concerned must be given the effective right to correct the
data.
7. The Contracting Parties shall be liable, in
accordance with their own laws, regulations and procedures, for injury caused
to a person through processing of data communicated in the Contracting Party
concerned.
8. In addition to the above mentioned principles
the principles of the Council of Europe Convention No 108 of 28 January
1981 for the Protection of Individuals with regard to Automatic Processing of
Personal Data will be applied by the Republic of Azerbaijan upon the
ratification of this Convention.