[Senate Treaty Document 104-20]
[From the U.S. Government Publishing Office]
104th Congress 1st SENATE Treaty Doc.
Session
104-20
_______________________________________________________________________
TREATY WITH HUNGARY ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
__________
MESSAGE
FROM
THE PRESIDENT OF THE UNITED STATES
TRANSMITTING
THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND
THE GOVERNMENT OF THE REPUBLIC OF HUNGARY ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS, SIGNED AT BUDAPEST ON DECEMBER 1, 1994
September 6, 1995.--Treaty was read the first time and, together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate
LETTER OF TRANSMITTAL
----------
The White House, September 6, 1995.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Treaty Between
the Government of the United States of America and the
Government of the Republic of Hungary on Mutual Legal
Assistance in Criminal Matters, signed at Budapest on December
1, 1994. I transmit also, for the information of the Senate,
the report of the Department of State with respect to the
Treaty.
The Treaty is one of a series of modern mutual legal
assistance treaties that the United States is negotiating in
order to counter criminal activities more effectively. The
Treaty should be an effective tool to assist in the prosecution
of a wide variety of modern criminals, including members of
drug cartels, ``white-collar'' criminals, and terrorists. The
Treaty is self-executing.
The Treaty provides for a broad range of cooperation in
criminal matters. Mutual assistance available under the Treaty
includes: (1) taking testimony or statements of persons; (2)
providing documents, records, and articles of evidence; (3)
serving documents; (4) locating or identifying persons or
items; (5) transferring persons in custody for testimony or
other purposes; (6) executing requests for searches and
seizures; (7) assisting in forfeiture proceedings; and (8)
rendering any other form of assistance not prohibited by the
laws of the Requested State.
I recommend that the Senate give early and favorable
consideration to the Treaty and give its advice and consent to
ratification.
William J. Clinton.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, August 4, 1995.
The President,
The White House.
I have the honor to submit to you the Treaty between the
Government of the United States of America and the Government
of the Republic of Hungary on Mutual Legal Assistance in
Criminal Matters (the ``Treaty''), signed at Budapest on
December 1, 1994. I recommend that the Treaty be transmitted to
the Senate for its advice and consent to ratification.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, similar bilateral treaties have
entered into force with Argentina, The Bahamas, Canada, Italy,
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland,
Thailand, Turkey, the United Kingdom (concerning the Cayman
Islands), and Uruguay. Other similar treaties have been signed
and ratified by the United States (but have not yet entered
into force) with Belgium, Colombia, and Panama. In addition,
treaties with Nigeria, Korea, and the United Kingdom have been
transmitted to the Senate and await Senate consideration. This
Treaty contains many provisions similar to those in the other
treaties.
It will enhance our ability to investigate and prosecute a
variety of offenses, including violent crimes, drug
trafficking, and fraud and other white-collar crimes. The
Treaty is designed to be self-executing and will not require
implementing legislation.
Article 1 contains a non-exhaustive list of the major types
of assistance to be provided under the Treaty, including taking
the testimony or statements of persons; providing documents,
records, and articles of evidence; serving documents; locating
or identifying persons or items; transferring persons in
custody for testimony or other purposes; executing requests for
searches and seizures; assisting in forfeiture proceedings; and
any other form of assistance not prohibited by the laws of the
Requested State. The scope of the Treaty includes not only
criminal offenses, but also proceedings related to criminal
matters, which may be civil or administrative in nature.
Moreover, the article declares that dual criminality is not
required for assistance to be provided under the Treaty. In
other words, assistance shall be provided without regard to
whether the conduct involved would constitute an offense under
the laws of the Requested State. The article makes it clear
that the Treaty is designed to be utilized only by governmental
authorities who seek evidence for use in criminal
investigations and prosecutions. The Treaty is not intended to
create any right in a private person to seek, suppress or
exclude evidence.
Article 2 provides for the establishment of Central
Authorities and defines the Central Authorities for purposes of
the Treaty. For the United States, the Central Authority is the
Attorney General or a person designated by the Attorney
General. For the Republic of Hungary, the Central Authority is
the Minister of Justice and the Chief Public Prosecutor, or
persons designated by them. The Central Authorities shall
communicate directly between each other for purposes of the
Treaty. This dual Central Authority arrangement for Hungary
reflects the importance and independence of the Office of the
Chief Public Prosecutor in the Hungarian criminal justice
system. Although such an arrangement will be unique among U.S.
treaties in the mutual assistance field, no practical problems
with implementation of the Treaty are anticipated.
Article 3 sets forth the circumstances under which the
Requested State may deny assistance under the Treaty. A request
may be denied if it relates to a political offense, or a
military offense that would not be a crime under ordinary
criminal law. In addition, a request may be denied if its
execution would prejudice the sovereignty, security or similar
essential interests of the Requested State, or if the request
does not comply with the provisions of Article 4.
Before denying assistance under Article 3, the Central
Authority of the Requested State is required to consult with
its counterpart in 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 conditions, it shall comply with the conditions. If the
Central Authority of the Requested State denies assistance, it
shall inform the Central Authority of the Requesting State of
the reasons for the denial.
Article 4 prescribes the form and content of written
requests under the Treaty, specifying in detail the information
required in each request. The article specifies further
information to be provided to the extent necessary and possible
to assist in locating individuals and effecting particular
types of assistance. Unless otherwise agreed, all requests and
supporting documents shall be in the language of the Requested
State.
Article 5 requires the Requested State to comply promptly
with a request, or to transmit it to the authorities with
jurisdiction to do so. The competent authorities of the
Requested State shall do everything in their power to execute a
request. The judicial authorities of the Requested State shall
have the authority to issue subpoenas, search warrants, or
other orders necessary to execute the request.
Requests are to be executed in accordance with the laws of
the Requested State except to the extent the Treaty provides
otherwise. 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. If the Central Authority of
the Requested State determines that execution of the request
would interfere with an ongoing criminal investigation or
proceeding, it may postpone execution or, after consultations
with the Requesting State, impose conditions on such execution.
If the Requesting State accepts assistance subject to such
conditions, it shall comply with them.
Article 5 further requires the Requested State, if so
requested, to use its best efforts to keep confidential a
request and its contents, and to inform the Requesting State if
the request cannot be executed without breaching
confidentiality.
Article 6 apportions between the two States the costs
incurred in executing a request. Generally, the Requested State
pays all costs relating to the execution of the request, except
for the fees of expert witnesses, travel and subsistence
expenses for the travel of persons pursuant to Articles 10 or
11, and the costs of translation, interpretation, and
transportation.
Article 7 provides that the Central Authority of the
Requested State may require that any information or evidence
obtained under the Treaty not be used for investigations,
proceedings, or prosecutions other than those described in the
request without the prior consent of the Requested State. If
the Requested State requests that information or evidence
furnished be kept confidential or be used in accordance with
conditions specified by its Central Authority, the Requesting
State is required to use its best efforts to comply with the
conditions specified. Once information is made public in the
Requesting State in accordance with the Treaty, no further
limitations on use apply.
Article 8 provides that the Requested State may compel, if
necessary, the taking of testimony or production of documents
or other evidence in its territory on behalf of the Requesting
State. The article requires the Requested State, upon request,
to inform the Requesting State in advance of the date and place
of the taking of testimony.
Article 8 also requires the Requested State to permit the
presence of any persons specified in the request (such as the
accused, counsel for the accused, or other interested persons)
and to permit such persons to question the person whose
testimony is being taken or, if such direct questioning is not
permitted, to submit questions to the appropriate authority. In
the event that a person whose testimony or evidence is being
taken asserts a claim of immunity, incapacity, or privilege
under the laws of the Requesting State, the testimony or
evidence shall be taken and the claim made known to the
Requesting State for resolution by its authorities.
Finally, Article 8 provides a mechanism for authentication
of documentary evidence produced pursuant to this article and
provides that no further authentication of certification shall
be necessary in order for such information to be admissible in
evidence in proceedings in the Requesting State.
Article 9 requires that the Requested State provides the
Requesting State with copies of publicly available records or
information of government departments or agencies. The
Requested State may further provide copies of records or
information in the possession of a governmental or judiciary
authority in that State but not publicly available, to the same
extent and under the same conditions as it would to its own law
enforcement or judicial authorities, but the Requested State
has the discretion to deny such requests entirely or in part.
Article 9 provides that no further authentication is necessary
for admissibility into evidence in the Requesting State for
official records authenticated in accordance with the
provisions of the Convention Abolishing the Requirement of
Legalization for Foreign Public Documents dated October 5,
1961.
Article 10 provides a mechanism for the Requesting State to
invite the voluntary appearance and testimony in its territory
of a person located in the Requested State. The Central
Authority of the Requested State is required to invite the
person to appear and promptly to inform the Requesting State of
the person's response.
Article 11 provides for the voluntary transfer to one State
of a person in custody in the other State for purposes of
assistance under the Treaty, provided that the person in
question and both States agree. The article establishes the
express authority and the obligation of the Requesting State to
maintain the person transferred in custody unless otherwise
authorized by the Requested State. It further obligates the
Requesting State to return the person to the Requested State as
soon as circumstances permit or as otherwise agreed by both
Central Authorities, without the need for extradition
proceedings.
Article 12 provides that the Central Authority of the
Requesting State may, in its discretion, determine that a
person appearing in the Requesting State pursuant to Article 10
or 11 shall not be subject to service of process, or be
detained or subjected to any restriction of personal liberty.
This ``safe conduct'' is limited to acts or convictions that
preceded the person's departure from the Requested State. Any
safe conduct provided under this article shall cease 15 days
after the person's presence is no longer required in the
Requesting State or whenever the person voluntarily reenters
the Requesting State after leaving it.
Article 13 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items specified in a request.
Article 14 requires the Requested State to use its best
efforts to effect service of any documents relating to or
forming part of a request under the Treaty. The article further
requires that any request for the service of a document
inviting a person to appear in the territory of the Requesting
State be transmitted by the Requesting State a reasonable time
before the scheduled appearance. The Requested State is
required to return proof of service.
Article 15 obligates the Requested State to execute
requests for 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.
If required by the Central Authority of the Requesting State,
the article further provides for the certification (using Form
B appended to the Treaty) by every official of the Requested
State who has had custody of a seized item of the continuity of
custody, its identity, and the integrity of its condition. No
further certification is required under the Treaty, and any
such certificates shall be admissible in evidence in the
Requesting State as proof of the truth of the matters set forth
therein. In addition, Article 15 provides that the Central
Authority of the Requested State may impose conditions on the
transfer of the seized items to protect third-party interests
in the property.
Article 16 obliges the Requesting State to return to the
Requested State as soon as possible any documents, records, or
articles of evidence furnished under the Treaty, if the
Requested State so requests.
Article 17 provides that, if one State becomes aware of
proceeds or instrumentalities of offenses that are located in
the territory of the other State and may be forfeitable or
otherwise subject to seizure under the laws of the other State,
it may so inform the other State. Article 17 also obligates the
States to assist one another to the extent permitted by their
respective laws in proceedings involving the forfeiture of the
proceeds and instrumentalities of crime, restitution to the
victims of crime, and the collection of fines imposed as
sentences in criminal prosecutions. The article further permits
the States to agree to share forfeited assets, or the proceeds
of their sale, to the extent permitted by applicable laws and
upon such terms as they deem appropriate.
Article 18 states that assistance and procedures provided
in the Treaty shall not prevent the granting of assistance
under any other international agreement between the two States,
or through the provisions of its national laws. The article
also states that the Treaty shall not prevent the granting of
assistance pursuant to any bilateral arrangement, agreement, or
practice which may be applicable.
Article 19 provides that the Central Authorities of the
Contracting Parties shall consult, at times mutually agreed
upon, concerning the most effective means to implement the
provisions of the Treaty.
Article 20 provides that the Treaty shall be ratified and
shall enter into force upon the exchange of instruments of
ratification. In addition, Article 20 allows either Contracting
Party to terminate the Treaty with six months written notice to
the other Party.
A Technical Analysis explaining in detail the provisions of
the Treaty is being prepared by the United States negotiating
delegation, consisting of representatives from the Departments
of Justice and State, and will be transmitted separately to the
Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in
recommending approval of this Treaty by the Senate as soon as
possible.
Respectfully submitted.
Peter Tarnoff.