[Senate Treaty Document 105-11]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.

                                SENATE
 1st Session                                                     105-11
_______________________________________________________________________


 
             MUTUAL LEGAL ASSISTANCE TREATY WITH LUXEMBOURG

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG ON MUTUAL LEGAL ASSISTANCE 
      IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON MARCH 13, 1997





 July 8, 1997.--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, July 8, 1997.
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 Grand Duchy of Luxembourg on Mutual Legal 
Assistance in Criminal Matters, signed at Washington on March 
13, 1997, and a related exchange of notes. 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 activity more effectively. The Treaty 
should be an effective tool to assist in the prosecution of a 
wide variety of modern criminals, including those involved in 
drug trafficking, terrorism, other violent crime, and money 
laundering, fiscal fraud, and other ``white-collar'' crime. The 
Treaty is self-executing.
    The Treaty provides for a broad range of cooperation in 
criminal matters. Mutual assistance available under the Treaty 
includes: taking testimony or statements of persons; providing 
documents, records, and articles of evidence; transferring 
persons in custody for testimony or other purposes; locating or 
identifying persons and items; serving documents; executive 
requests for searches and seizures; immobilizing assets; 
assisting in proceedings related to forfeiture and restitution; 
and 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, June 18, 1997.
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 Grand Duchy of Luxembourg on Mutual Legal 
Assistance in Criminal Matters (``the Treaty''), signed at 
Luxembourg on March 13, 1997, and a related exchange of notes 
signed the same date. I recommend that the Treaty and the 
related exchange of notes 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 a number of other countries. This 
Treaty contains many provisions similar to those in the other 
treaties.
    The Treaty will enhance our ability to investigate and 
prosecute a variety of offenses, including drug trafficking, 
terrorism, money laundering, fiscal fraud, and other violent 
and 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 the 
taking of testimony or statements of persons; providing 
documents, records, and articles of evidence; transferring 
persons in custody for testimony or other purposes; locating or 
identifying persons and items; serving documents; executing 
requests for searches and seizures; immobilizing assets; 
assisting in proceedings related to forfeiture and restitution; 
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 forfeiture and restitution 
proceedings related to criminal matters, which may be civil or 
administrative in nature.
    Moreover, under the Treaty, assistance is to be provided 
without regard to whether the conduct involved would constitute 
an offense under the laws of the Requested State. However, if 
execution of the request would require a court order for search 
and seizure or other coercive measures, the Requested State may 
refuse such assistance if the facts stated in the request fail 
to establish a reasonable suspicion that the conduct would 
constitute an offense for which the maximum penalty under its 
laws would be deprivation of liberty for a period of at least 
six months. The Requested State is required to make every 
effort to approve a request for assistance requiring court 
orders or other coercive measures.
    Article 1 specifies, and the exchange of diplomatic notes 
accompanying the Treaty further clarifies, the scope of 
coverage regarding tax offenses. The requested State is 
required to provide assistance for offenses concerning value 
added taxes, sales taxes, excise taxes, customs duties, and any 
other taxes that may be agreed to by the Contracting Parties 
through an exchange of diplomatic notes. For other tax 
offenses, the Requested State must provide assistance only 
where the facts in a request establish a reasonable suspicion 
of ``fiscal fraud'' as that term is defined in the Treaty and 
interpreted in the exchange of diplomatic notes. As used in 
this article, the term ``fiscal fraud'' means a criminal 
offense in which: (1) the tax involved, either as an absolute 
amount or in relation to an annual amount due, is significant; 
and (2) the conduct involved constitutes a systematic effort or 
a pattern of activity designed or tending to conceal pertinent 
facts from or provide inaccurate facts to the tax authorities.
    The Requested State may not refuse assistance because its 
law does not impose the same kind of tax, or does not contain 
the same kind of tax regulations, as does the law of the 
Requesting State.
    Finally, Article 1 makes it clear that the Treaty is 
intended only for mutual assistance between specified 
authorities that by law are responsible for investigations, 
prosecutions, or proceedings related to criminal offenses. It 
is not intended or designed to provide such assistance to 
private parties. The Treaty provisions neither create a new 
right nor affect a pre-existing right on the part of a private 
party to impede the execution of a request or to suppress or 
exclude any evidence.
    Article 2 provides for the designation of Central 
Authorities to make and receive requests pursuant to the 
Treaty. For the United States, the Central Authority is the 
Attorney General or another prosecutor designated by the 
Attorney General. For Luxembourg, the Central Authority is the 
Parquet General. The Central Authorities shall communicate 
directly with one another for purposes of the Treaty.
    Article 3 sets forth the circumstances under which the 
Central Authority of the Requested State may deny assistance 
under the Treaty. A request may be denied if it relates to a 
military offense that would not be a crime under ordinary 
criminal law or to an offense for which the maximum penalty in 
the Requesting State is deprivation of liberty for a period of 
a year or less. Assistance may be denied if the person whose 
conduct is the subject of the request has been prosecuted and 
either convicted and sentenced or acquitted in the Requested 
State based upon identical conduct. In addition, a request may 
be denied if its execution would prejudice the sovereignty, 
security, ordre public, or similar essential interests of the 
Requested State, or if the request is not made in conformity 
with Article 4.
    Finally, a request may be denied if it involves a political 
offense. This exception does not apply to any offense that the 
Contracting Parties consider not to be a political offense 
under any international agreement to which they are parties.
    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 these 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 contents 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. The article permits other forms of request in emergency 
situations, but requires written confirmation within ten days 
thereafter unless the Central Authority of the Requested State 
agrees otherwise.
    Article 5 provides that the Requested State shall promptly 
execute a request or 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 a 
request.
    Requests are to be executed in accordance with the laws of 
the Requested State except to the extent the Treaty provides 
otherwise. The courts of the Requested State shall have the 
authority to issue such orders to execute requests under the 
Treaty as are authorized under the laws of the Requested State 
with respect to proceedings in domestic investigations and 
prosecutions. The preferred method of execution specified in 
the request shall be followed except insofar as it is 
prohibited under 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 in the Requested State, 
jeopardize the security of a person, or impose an extraordinary 
burden on the State's resources, it may postpone execution or, 
after consultations with the Requesting State, impose 
conditions on such execution. Ifthe Requesting State accepts 
assistance subject to such conditions, it shall comply with them.
    Article 5 further requires the Requested State, if so 
requested by the Central Authority of the Requesting State, to 
use its best efforts to keep confidential a request and its 
contents, and to inform the Central Authority of the Requesting 
State if the request cannot be executed without breaching 
confidentiality.
    Article 5 specifies that the Central Authority of the 
Requested State may permit the presence during execution of a 
request of persons specified in the request.
    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 experts, the costs of translation, 
interpretation and transcription, and allowances and expenses 
related to travel of persons travelling either in the Requested 
State for the convenience of the Requesting State or pursuant 
to Articles 10 and 12. If, during execution of a request, it 
becomes apparent that complete execution will entail 
extraordinary expenses, the Central Authorities shall consult 
to determine the terms and conditions under which execution may 
continue.
    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 any investigation, 
proceeding or prosecution other than that described in the 
request without the prior consent of the Central Authority of 
the Requested State. Information or evidence obtained regarding 
a tax offense shall also be available for specified uses, 
including assessment and collection in relation to the taxes 
underlying that offense.
    Article 7 specifies that nothing therein shall preclude the 
use or disclosure in a criminal prosecution of information or 
evidence to the extent that there is an obligation to do so for 
the United States under its Constitution or for Luxembourg 
under the European Convention for the Protection of Human 
Rights and Fundamental Freedoms. Prior notification to the 
Requested State is required.
    Once information or evidence has been made public in the 
Requesting State in the normal course of the proceeding for 
which it was provided, it may be used for any purpose other 
than prosecution of: a military offense that would not be an 
offense under ordinary criminal law; a political offense; a 
capital offense; or a tax offense for which assistance is not 
available pursuant to the Treaty. For such offenses, 
information or evidence shall not be used without the prior 
consent of the Central Authority of the Requested State.
    Article 8 provides that a person in the Requested State 
whose statement is requested shall be required to appear, 
testify and produce items to the same extent as in criminal 
investigations or proceedings in the Requested 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 that when the Requesting State 
requests that testimony be taken under oath for use in a 
proceeding, the Requested State shall permit the presence 
during the execution of the request of persons specified in the 
request and shall allow such persons 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 
claim of immunity, incapacity or privilege under the laws of 
the Requesting State, the evidence shall be taken and the claim 
shall be made known to the Central Authority of the Requesting 
State for resolution by the authorities of that State.
    Finally, Article 8 provides a mechanism for certifying 
items, including business records, produced pursuant to this 
article and provides that documents so certified shall be 
admissible in evidence 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 accessible records of 
any nature and in any form that are inpossession of its 
judicial authorities or government departments or agencies. The 
Requested State may further provide copies of records of any nature, 
and in any form, in the possession of its judicial authorities or 
government departments or agencies, but that are no publicly 
accessible, to the same extent and under the same conditions that would 
apply 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 official records produced and certified 
pursuant to the article shall be admissible in evidence as proof of the 
truth of the matters set forth therein.
    Article 10 provides a mechanism for the Requesting State to 
invite a person located in the Requested State to appear in the 
Requesting State to assist in investigations and proceedings in 
that State. The Requested State is required to invite the 
person to appear and to inform the Requesting State of the 
person's response.
    Article 11 provides that, unless otherwise specified in the 
request, a person appearing as a witness or expert in the 
Requesting State pursuant to the Treaty shall not be subject to 
any civil suit to which the person could not be subjected but 
for the person's presence in the Requesting State, or be 
prosecuted, punished or subjected to any restriction of 
personal liberty by reason of any acts or omissions that 
preceded the person's departure from the Requested State. Any 
safe conduct provided under this article shall cease to apply 
if, after the person appearing has been notified that the 
person's presence is no longer required, that person, being 
free to leave, has not left the Requesting State within seven 
days or, having left, has voluntarily returned.
    Article 12 provides for the voluntary transfer to one State 
(and, in some circumstances, to a third State) of a person in 
custody in the other State for purposes of assistance under the 
Treaty, provided that the person in question and the Central 
Authorities of both States 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 sending State being required 
to initiate proceedings for the return of the person. 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.
    Article 13 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items when such information is sought in a request.
    Article 14 requires the Requested State to use its best 
efforts to effect service of any document relating to a request 
for assistance under the Treaty. Any request for the service of 
a document inviting a person to appear in the territory of the 
Requesting State must be transmitted by the Requesting State a 
reasonable time before the scheduled appearance. The Requested 
State is required to return proof of service.
    Article 14 specifies that a person who is not a national or 
resident of the Requesting State and who does not answer a 
summons to appear in the Requesting State as a witness or 
expert pursuant to the treaty shall not by reason thereof be 
liable to any penalty or be subjected to any coercive measures.
    Article 15 obligates the Requested State to execute 
requests for search, seizure, and transfer of any item to the 
Requesting State if a judicial authority of the Requesting 
State issues, approves, or otherwise authorizes the request and 
if the request includes the information justifying such action 
under the laws of the Requested State. For purposes of this 
paragraph, a judicial authority shall be, as appropriate, a 
prosecutor, court, or examining magistrate. The article further 
provides a mechanism for the certification, upon request, by 
every official of the Requested State who has had custody of a 
seized item, of the identity of the item, the continuity of its 
custody, and the integrity of its condition. This certification 
is by means of Form B appended to the Treaty, or a document 
containing the essential information required by the Requesting 
State. If certified in accordance with this article, no further 
certification is required 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 seized items to protect 
third party interests in the property.
    Article 16 provides that the Central Authority of the 
Requested State may require that the Central Authority of the 
Requesting State return as soon as possible any items furnished 
under the Treaty.
    Article 17 provides that, upon request and to the extent 
permitted by its laws, the Requested State may take protective 
measures, such as temporary immobilization or seizure, to 
ensure that proceeds, objects and instrumentalities of crime 
that are located in the Requested State are available for 
forfeiture or restitution to victims of crime. Article 17 also 
obligates the Contracting Parties to assist one another to the 
extent permitted by their respective laws in proceedings 
relating to forfeiture of the proceeds, objects and 
instrumentalities of offenses or restitution to victims of 
crime. The article further permits the Contracting Parties to 
assist each other to the extent permitted by their respective 
laws to give effect to either State's final decisions 
forfeiting proceeds, objects, and instrumentalities of crime or 
independently to initiate legal action for the forfeiture of 
such assets. Article 17 provides for disposition of forfeited 
assets in accordance with the laws of the Party enforcing its 
decision. Finally, it permits the Parties to share forfeited 
assets, or the proceeds of their sale, to the extent permitted 
by the transferring Party's laws and upon such terms as the 
transferring Party deems appropriate.
    Article 18 provides that the Central Authorities of the 
Contracting Parties shall consult, at times mutually agreed 
upon, to promote the most effective use of the Treaty and to 
agree on such practical measures as may be necessary to 
facilitate implementation of the Treaty.
    Article 19 provides that the Treaty shall be subject to 
ratification and shall enter into force on the first day of the 
second month after the exchange of instruments of ratification. 
In addition, Article 19 allows either Contracting Party to 
terminate the Treaty upon six months written notice to the 
other Party. Termination shall take effect six months following 
the date 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.
                                                Madeleine Albright.




