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13061 South Africa - Treaty on Mutual Legal Assistance in Criminal Matters


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13061

 

 

MUTUAL LEGAL ASSISTANCE

 

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and SOUTH AFRICA

 

Signed at Washington September 16, 1999

 

 

 

 



 

 


NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”


 

 

 

 


SOUTH AFRICA

Mutual Legal Assistance

Treaty signed at Washington September 16, 1999;
Transmitted by the President of the United States of America
to the Senate July 13, 2000 (Treaty Doc. 106-36,
106th Congress, 2d Session);
Reported favorably by the Senate Committee on Foreign Relations
September 27, 2000 (Senate Executive Report No. 106-24,
106th Congress, 2d Session);
Advice and consent to ratification by the Senate
October 18, 2000;
Ratified by the President January 5, 2001;
Ratified by South Africa March 28, 2001;
Ratifications exchanged at Pretoria June 25, 2001;
Entered into force June 25, 2001.

TREATY BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
ON
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
TABLE OF CONTENTS
Article 1 Scope of Assistance
Article 2 Central Authorities
Article 3 Limitation on Assistance
Article 4 Form and Contents of Requests
Article 5 Execution of Requests
Article 6 Authentication or Certification
Article 7 Costs
Article 8 Limitations on Use
Article 9 Testimony or Evidence in the Requested State
Article 10 Official Records
Article 11 Testimony in the Requesting State
Article 12 Transfer of Persons in Custody
Article 13 Transit of Persons in Custody
Article 14 Location or Identification of Persons or Items
Article 15 Service of Documents
Article 16 Search and Seizure
Article 17 Return of Items
Article 18 Assistance in Forfeiture Proceedings
Article 19 Compatibility with Other Treaties
Article 20 Consultation
Article 21 Application
Article 22 Ratification, Entry Into Force, and Termination
The Government of the United States of America and the Government of the
Republic of South Africa,
Desiring to improve the effectiveness of the law enforcement authorities of both
countries in the investigation, prosecution, and prevention of crime through cooperation
and mutual legal assistance in criminal matters,
Hereby agree as follows:
-2-
Article 1
Scope of Assistance
1. The Contracting States shall provide mutual assistance, in accordance with
the provisions of this Treaty, in connection with the investigation, prosecution, and
prevention of offences, and in proceedings related to criminal matters.
2. Assistance shall include:
(a) taking the testimony or statements of persons;
(b) providing documents, records, and articles of evidence;
(c) locating or identifying persons;
(d) serving documents;
(e) transferring persons in custody for testimony or other purposes;
(f) executing requests for searches and seizures;
(g) assisting in proceedings related to restraint or immobilization and
confiscation or forfeiture of assets or property; compensation or
restitution; recovery or collection of fines; and
(h) any other form of assistance not prohibited by the laws of the
Requested State.
3. Assistance shall be provided without regard to whether the conduct which
is the subject of the investigation, prosecution, or proceeding in the Requesting State
would constitute an offence under the laws of the Requested State.
4. This Treaty is intended solely for mutual legal assistance between the
States. The provisions of this Treaty shall not give rise to a right on the part of any
private person to obtain, suppress, or exclude any evidence, or to impede the execution of
a request.
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Article 2
Central Authorities
1. Each Contracting State shall designate a Central Authority to make and
receive requests pursuant to this Treaty.
2. For the Government of the United States of America, the Central Authority
shall be the Attorney General or a person designated by the Attorney General. For the
Government of the Republic of South Africa, the Central Authority shall be the Director-
General: Department of Justice or a person designated by the Director-General.
3. The Central Authorities shall communicate directly with one another for
the purposes of this Treaty. Such communication may, in exceptional circumstances, be
effected through their diplomatic channels or through INTERPOL.
Article 3
Limitations on Assistance
1. The Central Authority of the Requested State may deny assistance if:
(a) the request relates to a political offence;
(b) the request relates to an offence under military law which would not
be an offence under ordinary criminal law;
(c) the execution of the request would prejudice the national security or
any other essential interests of the Requested State; or
(d) the request is not made in conformity with the Treaty.
2. For the purposes of paragraph 1(a) of this Article, the following offences
shall not be considered political offences:
-4-
(a) a murder or other violent crime against a Head of State or Deputy
Head of State of the Requesting or Requested State, or of or against
a member of such person's family;
(b) an offence for which both the Requesting or Requested State have an
obligation pursuant to a multilateral international agreement to
extradite the person sought or to submit the case to their respective
competent authorities for decision as to prosecution;
(c) murder;
(d) an offence involving kidnapping, abduction, or any other form of
unlawful detention, including the taking of hostages; and
(e) attempting or conspiring to commit, aiding, abetting, inducing,
counseling or procuring commission of, or being an accessory before
or after the fact to such offences.
3. Before denying assistance pursuant to this Article, the Central Authority of
the Requested State shall consult with the Central Authority of the Requesting State to
consider whether assistance can be given subject to such conditions as it deems necessary.
If the Requesting State accepts assistance subject to these conditions, it shall comply with
the conditions.
4. If the Central Authority of the Requested State denies assistance, it shall
inform the Central Authority of the Requesting State of that decision and the reasons
therefor.
Article 4
Form and Contents of Requests
1. A request for assistance shall be in writing except that the Central
Authority of the Requested State may accept a request in another form in emergency
situations. In any such case, the request shall be confirmed in writing within ten days
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thereafter unless the Central Authority of the Requested State agrees otherwise. The
request shall be in English.
2. The request shall include the following:
(a) the name of the authority conducting the investigation, prosecution,
or proceeding to which the request relates;
(b) a description of the subject matter and nature of the investigation,
prosecution, or proceeding, including the specific criminal offences
which relate to the matter;
(c) a description of the evidence, information, or other assistance
sought; and
(d) a statement of the purpose for which the evidence, information, or
other assistance is sought.
3. To the extent necessary and possible, a request shall also include:
(a) information on the identity and location of any person from whom
evidence is sought;
(b) information on 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;
(c) information on the identity and whereabouts of a person to be
located;
(d) a precise description of the place or person to be searched
and of the articles to be seized;
(e) a description of the manner in which any testimony or
statement is to be taken and recorded;
(f) a list of questions to be asked of a witness;
(g) a description of any particular procedure to be followed in executing
the request;
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(h) information as to the allowances and expenses to which a person
asked to appear in the Requesting State will be entitled;
(i) any requirements for confidentiality and the reasons therefor;
(j) a court order, if any, or a certified copy thereof, which is to be
enforced and a statement that such order is final; and
(k) any other information which may be brought to the attention of the
Requested State to facilitate its execution of the request.
Article 5
Execution of Requests
1. The Central Authority of the Requested State shall promptly execute the
request or, when appropriate, shall transmit it to the authority having jurisdiction to do
so. The competent authorities of the Requested State shall do everything in their power to
execute the request. The Courts of the Requested State have authority to issue subpoenas,
search warrants, or other orders necessary to execute the request.
2. The Central Authority of the Requested State shall make all necessary
arrangements for representation in the Requested State of the Requesting State in any
proceedings arising out of a request for assistance.
3 . Requests shall be executed in accordance with the laws of the Requested
State, including the terms of this Treaty. However, the method of execution specified in
the request shall be followed except insofar as it is prohibited by the laws of the Requested
State.
4. If the Central Authority of the Requested State determines that execution of
a request would interfere with an ongoing criminal investigation, prosecution, or
proceeding in that State, it may postpone execution, or make execution subject to
conditions determined to be necessary after consultations with the Central Authority of
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the Requesting State. If the Requesting State accepts the assistance subject to the
conditions, it shall comply with the conditions.
5. The Requested State shall use its best efforts to keep confidential a request
and its contents if such confidentiality is requested by the Central Authority of the
Requesting State. if the request cannot be executed without breaching such
confidentiality, the Central Authority of the Requested State shall so inform the Central
Authority of the Requesting State, which shall then determine whether the request should
nevertheless be executed.
6. The Central Authority of the Requested State shall respond to reasonable
inquiries by the Central Authority of the Requesting State concerning progress in
executing the request.
7. The Central Authority of the Requested State shall promptly inform the
Central Authority of the Requesting State of the outcome of the execution of the request.
If the request cannot successfully be executed in whole or in part, the Central Authority
of the Requested State shall inform the Central Authority of the Requesting State of the
reasons therefor.
Article 6
Authentication or Certification
1. Upon request by the United States, information or evidence furnished to the
United States shall be authenticated or certified in the following manner:
(a) Information or evidence provided pursuant to Articles 9, 10 or
16 shall be authenticated or certified in the manner indicated in
Form A for Article 9, Form B for Article 10 or Form E for
Article 16, appended to this Treaty, or in such other manner as
the Central Authority requests; and
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(b) The absence or non-existence of evidence requested pursuant to
Article 9 or 10 shall be certified in the manner indicated in Form C
for Article 9 or Form D for Article 10, appended to this Treaty.
(c) The following shall be admissible in the United States as proof of the
truth of the matters set forth therein:
(i) records authenticated by Form A or B or certified by
Form E; and
(ii) Forms C or D, certifying the absence of such records.
2. (a) Upon request by the Republic of South Africa, documents or
articles of evidence furnished to the Republic of South Africa
be authenticated or certified by attestation, affidavit, or other
affirmation covering or recording the required or requested
subject matter. The substantive form of the said attestation,
affidavit or declaration will be communicated by the Central
Authority of the Republic of South Africa to its counterpart in the
United States from time to time.
(b) Despite the provisions of subparagraph (a), in the case of court
records or records of judicial proceedings, it shall be sufficient if a
copy of such records is certified as a true copy of the original
recorded by the relevant judicial officer or another competent
authority in the United States.
(c) All documents referred to in this paragraph must be accompanied
by a certificate according to the example set out in Form F to this
Treaty.
(d) Despite the provisions of sub-paragraph (c), any document referred
to therein, may be authenticated or certified in the manner in
which foreign documents are authenticated or certified to enable
them to be produced in any court in the Republic of South Africa.
NOTE: Parties agreed by an Exchange of Notes that text of Article 6,
paragraph 2 (a) should be corrected to read: "...articles of evidence
furnished to the Republic of South Africa shall be authenticated or certified
by..." .
-9-
(e) In the case of documents contemplated in Article 10 of this Treaty it
shall be sufficient if such documents or certified copies thereof are
authenticated or certified in accordance with sub-paragraphs (c) or
(d).
Article 7
Costs
1. The Requested State shall pay all costs relating to the execution of the
request, except for the fees of expert witnesses, the costs of translation, interpretation, and
transcription, and the allowances and expenses related to travel of persons pursuant to
Articles 11, 12 and 13, which costs, fees, allowances, and expenses shall be paid by the
Requesting State.
2. If, during the execution of a request, it becomes apparent that fulfillment of
the request will entail expenses of an extraordinary nature, the Central Authorities shall
consult to determine the terms and conditions under which execution may continue.
Article 8
Limitations on Use
1. The Central Authority of the Requested State may require that the
Requesting State not use any information or evidence obtained under this Treaty in any
investigation, prosecution, or proceeding other than that described in the request without
the prior consent of the Central Authority of the Requested State. In such cases, the
Requesting State shall comply with the requirement.
2. The Central Authority of the Requested State may request that information
or evidence furnished under this Treaty be kept confidential or be used only subject to
terms and conditions it may specify. If the Requesting State accepts the information or
evidence subject to such conditions, the Requesting State shall use its best efforts to
comply with the conditions.
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3. Nothing in this Article shall preclude the use or disclosure of information or
evidence to the extent that there is an obligation to do so under the Constitution of the
Requesting State in criminal proceedings. The Requesting State shall notify the
Requested State in advance of any such proposed disclosure.
4. Information or evidence which has been made public in the Requesting
State in accordance with paragraph 1 or 2 may thereafter be used for any purpose.
Article 9
Testimony or Evidence in the Requested State
1. A person in the Requested State from whom testimony or evidence is
requested pursuant to this Treaty shall be compelled, if necessary, to appear and testify or
produce items, including documents, records, and articles of evidence.
2. Upon request, the Central Authority of the Requested State shall furnish
information in advance about the date and place of the taking of the testimony or
evidence pursuant to this Article.
3. The Requested State shall permit the presence of such persons as specified
in the request during the execution of the request, and shall allow such persons to
question, directly or indirectly, the person giving the testimony or evidence.
4. If the person referred to in paragraph 1 asserts a claim of immunity,
incapacity, or privilege under the laws of the Requesting State, the testimony or evidence
shall nonetheless be taken and the claim made known to the Central Authority of the
Requesting State for resolution by the authorities of that State.
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Article 10
Official Records
1. The Requested State shall provide the Requesting State with copies of
publicly available records, including documents or information in any form, in the
possession of organs of State and government departments and agencies in the Requested
State.
2. The Requested State may provide copies of any documents, records, or
information which are in the possession of an organ of State or a government department
or agency in that State, but which are not publicly available, to the same extent and under
the same conditions as such copies would be available to its own law enforcement or
judicial authorities. The Requested State may in its discretion deny a request pursuant to
this paragraph entirely or in part.
Article 11
Testimony in the Requesting State
1. When the Requesting State requests the appearance of a person in that
State, the Requested State shall invite the person to appear before the appropriate
authority in the Requesting State. The Requesting State shall indicate the extent to which
the expenses will be paid. The Central Authority of the Requested State shall promptly
inform the Central Authority of the Requesting State of the response of the person.
2. The Central Authority of the Requesting State may, in its discretion,
determine that a person appearing in the Requesting State pursuant to this Article shall
not be subject to service of process, or be detained or subjected to any restriction of
personal liberty, by reason of any acts or convictions which preceded his departure from
the Requested State.
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3. The safe conduct provided for by this Article shall cease seven days after
the Central Authority of the Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer required, or when the person,
having left the Requesting State, voluntarily returns. The Central Authority of the
Requesting State may, in its discretion, extend this period for up to fifteen days if it
determines that there is good cause to do so.
Article 12
Transfer of Persons in. Custody
A person in the custody of either State whose presence for purposes of assistance
under this Treaty is sought may be transferred from the custody of one State to the
custody of the other State for that purpose provided that:
(a) the person concerned and both Central Authorities to this Treaty agree
thereto; and
(b) any terms or conditions set by the State that will transfer such person for
the purposes of this Article will be adhered to by the receiving State,
including:
(i) the receiving State shall have the authority and the obligation to
keep the person transferred in custody unless otherwise authorized
by the sending State;
(ii) the receiving State shall return the person transferred to the custody
of the sending State as soon as circumstances permit or as otherwise
agreed by both Central Authorities;
(iii) the receiving State shall not require the sending State to initiate
extradition proceedings for the return of the person transferred; and
(iv) the person transferred shall receive credit for service of the sentence
imposed in the sending State for time served in the custody of the
receiving State.
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Article 13
Transit of Persons in Custody
1. The Requested State may authorize the transit through its territory of a
person held in custody by a third State whose personal appearance has been requested by
the Requesting State to give testimony or evidence or otherwise provide assistance in an
investigation, prosecution or proceeding.
2. Where such transit is authorized, the Requested State shall have the
authority and the obligation to keep the person in custody during transit in accordance
with the laws of the Requested State, including the terms of this Treaty.
Article 14
Location or Identification of Persons or Items
The Requested State shall use its best efforts to ascertain the location or identity of
persons or items specified in the request.
Article 15
Service of Documents
1. The Requested State shall use its best efforts to effect service of any
document relating, in whole or in part, to any request for assistance made by the
Requesting State under the provisions of this Treaty.
2. The Requesting State shall transmit any request for the service of a
document requiring the appearance of a person before an authority in the Requesting
State a reasonable time before the scheduled appearance.
3. The Requested State shall return a proof of service in the manner specified
in the request.
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Article 16
Search and Seizure
1. The Requested State shall execute a request for the search, seizure, and
delivery of any item to the Requesting State if the request includes the information
justifying such action under the laws of the Requested State.
2. Upon request, every official who has custody of a seized item shall certify
the continuity of custody, the identity of the item, and the integrity of its condition.
3. The Central Authority of the Requested State may require that the
Requesting State agree to the terms and conditions deemed to be necessary to protect
third party interests in the item to be transferred.
Article 17
Return of Items
The Central Authority of the Requested State may require that the Central
Authority of the Requesting State return any items, including documents, records, or
articles of evidence furnished to it in execution of a request under this Treaty, as soon as
possible.
Article 18
Assistance in Forfeiture Proceedings
1. If the Central Authority of one Contracting State becomes aware of
proceeds of crimes or instrumentalities or objects used in the commission of crimes that
are located in the other State and may be forfeitable or otherwise subject to seizure under
the laws of that State, it may so inform the Central Authority of the other State. If that
other State has jurisdiction in this regard, it may present this information to its
authorities for a determination whether any action is appropriate. These authorities shall
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issue their decision in accordance with the laws of their country, and shall, through their
Central Authority, report to the other State on the action taken.
2. The Contracting States shall assist each other to the extent permitted by
their respective laws in proceedings relating to:
(a) restraint or immobilization of proceeds of crimes and
instrumentalities or objects used in the commission of crimes;
(b) confiscation or forfeiture of proceeds of crimes and instrumentalities
or objects used in the commission of crimes;
(c) recovery or collection of fines imposed by courts as sentences in
criminal proceedings; and
(d) compensation or restitution to victims of crime.
3. The State that has custody over proceeds of crimes and instrumentalities or
objects used in the commission of crimes shall dispose thereof in accordance with its laws.
Either State may transfer all or part of such assets or property, or the proceeds of the sale
thereof, to the other State, to the extent permitted under the transferring State's laws and
upon such terms as it deems appropriate.
Article 19
Compatibility with Other Treaties
Assistance and procedures set forth in this Treaty shall not prevent either
Contracting State from granting assistance to the other State through the provisions of
other applicable international agreements, or through the provisions of its domestic law.
The States may also provide assistance pursuant to any bilateral arrangement, agreement,
or practice which may be applicable.
-16-
Article 20
Consultation
The Central Authorities shall consult, at times mutually agreed to by them, to
promote the most effective use of this Treaty. They may also agree on such practical
measures as may be necessary to facilitate the implementation of this Treaty.
Article 21
Application
This Treaty shall apply to any assistance contemplated in Article 1, whether the acts
were committed before, on, or after the date upon which this Treaty enters into force. Nothing
in this treaty shall be deemed to require or authorize any action by the Requested State that is
contrary to the constitution of that State.
Article 22
Ratification, Entry Into Force, and Termination
1. This Treaty shall be subject to ratification, and the instruments of
ratification shall be exchanged as soon as possible.
2. This Treaty shall enter into force upon the exchange of instruments of
ratification.
3. Either State may terminate this Treaty by means of written notice to the
other State through the diplomatic channel. Termination shall take effect six months
following the date of notification.
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IN WITNESS WHEREOF, the undersigned, being duly authorized by their
respective Governments have signed this Treaty.
DONE at Washington, in duplicate, this sixteenth day of September, 1999.
FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:
FOR THE GOVERNMENT OF THE
REPUBLIC OF SOUTH AFRICA:
FORM A
CERTIFICATE OF AUTHENTICITY OF
BUSINESS RECORDS
I, , attest on penalty of criminal
(Name)
punishment for false statement or false attestation that I am employed by
and that my official titile is
(name of business from which documents are sought)
I further state that each of the records attached hereto is the original or a duplicate
of the original records in the custody of
(name of business from which documents are sought)
I further state that:
(A) such records were made, at or near the time of the occurrence of the
matters set forth, by (or from information transmitted by) a person
with knowledge of those matters;
(B) such records were kept in the course of a regularly conducted
business activity;
(C) the business activity made such records as a regular practice; and
(D) if such record is not the original, such record is a duplicate of the
original.
(Signature)
Sworn to or affirmed before me, a
(Name)
this
(notary public, judicial officer, etc.)
day of
(Day) (Month) (Year)
(Date)
FORM B
ATTESTATION OF AUTHENTICITY OF FOREIGN PUBLIC DOCUMENTS
I , attest on penalty of
(Name)
criminal punishment for false statement or attestation that my position with the
Government of
(Country)
is and that in that position I
(Official Title)
am authorized by the law of
(Country)
to attest that the documents attached and described below are true and accurate copies of
original official records that are recorded or filed in
(Name of Office or Agency)
which is a government office or agency of
(Country)
Description of Documents:
(Signature)
(Title)
(Date)
FORM C
CERTIFICATION OF ABSENCE OR NON-EXISTENCE OF BUSINESS RECORDS
I, (name) , having been advised as a witness that a false attestation
subjects me to a penalty of criminal punishment, attest as follows:
I am employed by/associated with (name of business from which
documents are sought) in the position of (business position or
title) and by reason of my position am authorized and qualified to make this
attestation.
As a result of my employment/association with the above-named business, I am
familiar with the business records it maintains. The business maintains business records
that:
(A) are made, at or near the time of the occurrence of the matters set forth therein
by, or from information transmitted by, a person with knowledge of those
matters;
(B) are kept in the course of a regularly conducted business activity; and
(C) are made by the business as a regular practice.
Among the records so maintained are records of individuals and entities that have
accounts or otherwise transact business with the above-named business. I have made or
caused to be made a diligent search of those records. No records have been found
reflecting any business activity between the business and the following individuals and
entities:
If the business had maintained an account on behalf of or had participated in a
transaction with any of the foregoing individuals or entities, its business records would
reflect that fact.
(date of execution)
(place of execution)
(signature)
FORM D
CERTIFICATION OF ABSENCE OR NON-EXISTENCE
OF OFFICIAL RECORDS
I (name) , certify as follows:
1. (name of public authority) is a government office or
agency of (country) and is authorized by law to maintain official
records setting forth matters that are authorized by law to be reported and recorded or filed;
2. records of the type described below set forth matters that are authorized by
law to be reported and recorded or filed, and such matters regularly are recorded or filed by
the above-named public authority;
3. my position with the above-named public authority is (official title);
4. in my official capacity I have made, or caused to be made, a diligent search of the
above-named public authority's records for the records described below; and
5. no such records have been found to exist therein.
Description of records:
(signature)
(date) (Official Seal or Stamp)
FORM E
ATTESTATION WITH RESPECT TO SEIZED ARTICLES
I , attest on penalty of
(Name)
criminal punishment for false statements or attestation that my position with the
Government of
(Country)
is . I received the articles
(Official Title)
listed below from
on
, at
(Date)
in the following condition:
Description of Article:
Changes in Condition while in my custody:
Official Seal
(Place)
(Signature)
(Title)
(Date)
FORM F
APPOSTILLE
(Convention de la Haye du 5 Octobre 1961)
I. Country
This public document
2. has been signed by
3. acting in the capacity of
4. bears the seal/stamp of
Certified
5. at
6. the (date)
7. by
8. No.
9. Seal/stamp: 10. Signature:

 

 



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