[Senate Treaty Document 104-21]
[From the U.S. Government Publishing Office]



   104th Congress 1st            SENATE              Treaty Doc.
         Session
                                                        104-21
_______________________________________________________________________



 
  TREATY WITH AUSTRIA 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 AUSTRIA ON MUTUAL LEGAL ASSISTANCE IN 
        CRIMINAL MATTERS, SIGNED AT VIENNA ON FEBRUARY 23, 1995




 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 Austria on Mutual Legal 
Assistance in Criminal Matters, signed at Vienna on February 
23, 1995. 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 being negotiated by the United States in 
order to counter criminal activity more effectively. The Treaty 
will enhance our ability to investigate and prosecute a wide 
variety of offenses, including drug trafficking, violent 
crimes, and ``white-collar'' crimes. 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 the 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.
    The President: 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 Austria on Mutual Legal 
Assistance in Criminal Matters (the ``Treaty''), signed at 
Vienna on February 23, 1995. 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 Korea, Nigeria, 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 mutual legal assistance treaties. It will enhance our 
ability to investigate and prosecute a variety of offenses, 
including violent crimes, drug trafficking, 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. The scope of the 
Treaty includes not only criminal offenses, but also forfeiture 
proceedings. Moreover, the article declares that dual 
criminality is not required for assistance to be provided under 
the Treaty, except that a request may be denied when there is 
no dual criminality and execution of the request would require 
a court order for search and seizure or other coercive 
measures. 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, except when the 
Requested State exercises its discretion to deny requests in 
cases involving coercive measures, bearing in mind the 
requirement that the Requested State make every effort to 
approve requests necessitating coercive measures. Furthermore, 
Article 1 requires the Requested State to grant assistance 
where the facts stated in the request ``establish a reasonable 
suspicion that the conduct described, if it had occurred in the 
Requested State, would constitute an offense under its laws.''
    Article 1 also provides that assistance requests in fiscal 
offense cases shall not be refused on the ground that the law 
of the Requested State does not impose the same kind of tax or 
duty, or does not contain tax, duty, customs or exchange 
regulations of the same kind as the law of the Requesting 
State. Finally, Article 1 makes clear that the Treaty is 
designed to be utilized only by governmental authorities or 
institutions 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 such persons as the Attorney General 
designates. For the Republic of Austria, the Central Authority 
is the Federal Minister of Justice or such persons as the 
Federal Minister of Justice designates. Article 2 provides that 
each Central Authority shall make and receive requests on 
behalf of authorities which by law are responsible for 
investigations or prosecutions related to criminal matters, 
that each Central Authority shall make only such requests as it 
considers and approves (with discretion to screen out minor 
cases), and that the Central Authorities shall communicate 
directly between each other for purposes of the Treaty.
    Article 3 sets forth the circumstances (in addition to 
those in Article 1) under which the Requested State may deny 
assistance under the Treaty. A request may be denied if it 
relates to a political offense, or 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 
security or other 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 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 additional 
information to be provided to the extent necessary and possible 
to assist in locating individuals and effecting particular 
types of assistance. All requests and supporting documents 
shall be in the language of the Requested State. In urgent 
situations, the Central Authority of the Requested State may 
accept a request that is not in writing, but such requests must 
be confirmed in writing within ten days unless the Central 
Authority agrees otherwise.
    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. Requests are to be executed in accordance with the 
laws of the Requested State except to the extent the Treaty 
provides otherwise, and the courts of the Requested State shall 
have authority to issue such orders to execute requests under 
the Treaty as are authorized under the law of the Requested 
State with respect to proceedings in domestic investigations 
and prosecutions. 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, jeopardize the security 
of a person, or impose an extraordinary burden on the resources 
of that State, it may postpone execution or, after 
consultations with the Requesting State, impose conditions on 
such execution.
    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 5 also requires a Requested State to provide a 
status report on a request in progress and promptly inform the 
Central Authority of the Requesting State of the outcome of the 
request. If execution of a request is delayed or denied, the 
Requested State must inform the Requesting State of the 
reasons.
    Article 6 approptions between the two States the costs 
incurred in executing a request. Generally, the Requested State 
shall pay all costs, except for the following items to be paid 
by the Requesting State: fees of expert witnesses, travel and 
subsistence expenses for the travel of persons pursuant to 
Articles 10 and 12, and costs of translation, interpretation, 
and transcription.
    Article 7 provides that the Central Authority of the 
Requested State may require that any information or evidence 
obtained under the Treaty may not be used for investigations, 
proceedings, or prosecutions other than those described in the 
request without prior consent of the Requested State. In the 
case of fiscal offenses, such use shall only be made with prior 
consent of the Requested State, except in related customs duty, 
excise, and tax proceedings. If the Requested State requests 
that information or evidence furnished be kept confidential 
subject to conditions specified by its Central Authority, the 
Requesting State is required to use its best efforts to comply 
with those conditions. 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 shall compel, 
if necessary, the appearance, testimony or production of 
documents or other evidence by a person 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 either to question the person whose 
testimony is being taken or, if such direct questioning is not 
permitted, to have questions posed in accordance with 
applicable procedures in the Requested State. In the event that 
a person whose testimony or evidence is being taken asserts a 
basis for not testifying under the laws of the Requesting 
State, which was not specified in the request, 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 mechanisms for authentication 
of documentary evidence produced pursuant to the article 
(including Form A appended to the Treaty) and provides that 
documents so authenticated shall be admissible in evidence in 
proceedings in the Requesting State as proof of the truth of 
the matters set forth therein.
    Article 9 requires that the Requested State provide the 
Requesting State with copies of publicly available documents, 
records, or information recorded in any form in the possession 
of a governmental or judicial authority in the Requested State. 
The Requested State may further provide copies of records in 
the possession of a government department or agency that are 
not publicly available to the same extent and under the same 
conditions as it would to its 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 as proof of the truth of the matters set forth therein 
for official records authenticated in accordance with the 
provisions of the Convention Abolishing the Requirement of 
Legalization for Foreign Public Documents, dated 5 October 
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 Requesting 
State shall indicate the extent to which the expenses will be 
paid and may, at the person's request, provide an advance of 
money to cover expenses through the Embassy or a consulate of 
the Requesting State.
    Article 11 provides that a person appearing in the 
Requesting State pursuant to the Treaty shall not be subject to 
any civil suit to which the person could not otherwise be 
subjected, but for the person's presence in the Requesting 
State, 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 seven days after notification to a person appearing 
pursuant to the Treaty that his presence is no longer required 
in the Requesting State or whenever the person voluntarily 
reenters the Requesting State after having left it.
    Article 12 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 Central Authorities agree. The article 
establishes the express authority and the obligation of the 
receiving State to maintain the person transferred in custody 
unless otherwise authorized by the sending State. It further 
obligates the receiving State to return the person to the 
sending State as soon as circumstances permit or as otherwise 
agreed by both Central Authorities without the need for 
extradition proceedings and with the person transferred given 
credit for time served in the custody of the receiving State.
    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 services 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 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. The article also declares that a 
person who is a national of the Requested State or has equal 
status and who does not answer a summons to appear in the 
Requesting State as a witness or expert pursuant to the Treaty 
shall not be liable to any penalty or be subject to any 
coercive measures.
    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. 
That information shall also include a statement that an 
appropriate authority in the Requesting State could compel 
production of the items in question if they were located in 
that State. The article further provides, upon request for the 
Central Authority of the Requesting State, for the 
certification 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. The certification 
shall be by means of Form B appended to the Treaty or a 
document containing the essential information required by the 
Requesting State. 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 a Central Authority of one Party 
which becomes aware of proceeds or instrumentalities of crime 
located in the territory of the other Party that may be 
forfeitable or otherwise subject to seizure under the laws of 
that Party may inform the Central Authority of that Party. If 
the Party so informed has jurisdiction in this regard, it is 
free to take appropriate action. It shall report to the Central 
Authority of the first Party on any action taken. Article 17 
further obligates the Parties to assist one another to the 
extent permitted by their respective laws in proceedings 
involving the forfeiture of the proceeds and instrumentalities 
of offenses, restitution to the victims of crime, and the 
collection of fines imposed as sentences in criminal 
prosecutions. The article further permits a Requested State in 
control of forfeited assets to dispose of them in accordance 
with its law, and permits either Party to transfer to the other 
Party forfeited assets, or the proceeds of their sale, to the 
extent permitted by applicable laws and upon such terms as the 
Parties deem appropriate.
    Article 18 states that assistance and procedures provided 
in the Treaty shall not prevent a Party from granting 
assistance under any other international agreement to which it 
may be a party, or through the provisions of its national laws. 
The article also states that the Treaty shall not prevent the 
granting of assistance available under any bilateral 
arrangement, agreement, or practice which may be applicable.
    Article 19 provides that the Central Authorities of the two 
Parties shall consult, at times mutually agreed upon, 
concerning the most effective use to be made of the Treaty.
    Article 20 declares that the Treaty is subject to 
ratification, the instruments of ratification shall be 
exchanged as soon as possible, and the Treaty shall enter into 
force on the first day of the third month following the month 
of the exchange of the instruments. The article also states 
that the Treaty applies to requests whether or not the relevant 
offenses occurred prior to the entry into force of the Treaty. 
In addition, Article 20 allows either Party to terminate the 
Treaty by means of written notice to the other Party which 
takes effect six months following the date of receipt of 
notification.
    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.


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