[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.