[Senate Treaty Document 105-22]
[From the U.S. Government Publishing Office]
105th Congress Treaty Doc.
SENATE
1st Session 105-22
_______________________________________________________________________
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS WITH TRINIDAD AND TOBAGO
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF TRINIDAD AND TOBAGO ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS, SIGNED AT PORT OF SPAIN ON MARCH 4, 1996
September 3, 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, September 3, 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 Trinidad and Tobago on Mutual Legal Assistance in
Criminal Matters, signed at Port of Spain on March 4, 1996. 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 activities more effectively. The
Treaty should be an effective tool to assist in the prosecution
of a wide variety of crimes, including drug trafficking
offenses. 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 of testimony or statements of persons;
providing documents, records, and articles of evidence; serving
documents; locating or identifying persons; transferring
persons in custody for testimony or other purposes; executing
requests for searches and seizures; assisting in proceedings
related to restraint, confiscation, forfeiture of assets,
restitution, and collection of fines; examining objects and
sites; and 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: I have the honor to submit to you the Treaty
Between the Government of the United States of America and the
Government of Trinidad and Tobago on Mutual Legal Assistance in
Criminal Matters (``the Treaty''), signed at Port of Spain on
March 4, 1996. 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 a number of other countries.
The Treaty with Trinidad and Tobago contains all essential
provisions sought by the United States. It will enhance our
ability to investigate and prosecute a variety of offenses,
including drug trafficking offenses of particular interest to
the U.S. law enforcement community with respect to Trinidad and
Tobago. The Treaty is designed to be self-executing and will
not require implementing legislation.
Article 1 sets forth a non-exclusive 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; transferring persons in
custody for testimony or other purposes; executing requests for
searches and seizures; assisting in proceedings related to
restraint, confiscation, forfeiture of assets, restitution, and
collection of fines; examining objects and sites; and rendering
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.
Article 1(3) states that assistance shall be provided
without regard to whether the conduct involved would constitute
an offense under the laws of the Requested State. The Requested
State does, however, have discretion to refuse to comply in
whole or in part with a request concerning conduct for which
dual criminality is lacking.
Article 1(4) states explicitly that the Treaty is not
intended to create rights in private parties to obtain,
suppress, or exclude any evidence, or to impede the execution
of a request.
Article 2 provides for the establishment of Central
Authorities and defines Central Authorities for purposes of the
Treaty. For the United States, and likewise for Trinidad and
Tobago, the Central Authority is the Attorney General or a
person designated by the Attorney General. The article provides
that the Central Authorities shall communicate directly with
one another for the purposes of the Treaty.
Article 3 sets forth the circumstances under which a
Requested State's Central Authority 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.
In addition, a request may be denied if its execution would
prejudice the security or similar essential interests of the
Requested State, or if it is not made in conformity with the
Treaty.
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 the
Central Authority of the Requested State deems necessary. If
the Requesting State accepts assistance subject to these
conditions, it is required to comply with them. If the Central
Authority of the Requested State denies assistance, it is
required to 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 permits other forms of
requests in emergency situations but requires written
confirmation within ten days thereafter unless the Central
Authority of the Requested State agrees otherwise.
Article 5 requires the Central Authority of the Requested
State to execute the request promptly or to transmit it to the
authority having jurisdiction to do so. It provides that the
competent authorities of the Requested State shall do
everything in their power to execute a request, and that courts
of the Requested State shall have authority to issue subpoenas,
search warrants, or other orders necessary to execute the
request. The Central Authority of the Requested State must make
all arrangements for and meet the costs of representation of
the Requesting State in any proceedings arising out of an
assistance request.
Under Article 5(3), requests are to be executed in
accordance with the laws of the Requested State except to the
extent that the Treaty provides otherwise. However, the method
of execution specified in the request is to 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, prosecution, or proceeding in that
State, it may postpone execution or, after consulting with the
Central Authority of the Requesting State, impose conditions on
execution. If the Requesting State accepts assistance subject
to conditions, it shall comply with them.
Article 5(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's
Central Authority if the request cannot be executed without
breaching confidentiality. This provides the Requesting State
an opportunity to decide whether to pursue the request or to
withdraw it in order to maintain confidentiality.
This article additionally requires the Requested State's
Central Authority to respond to reasonable inquiries by the
Requesting State's Central Authority regarding the status of
the execution of a particular request; to report promptly to
the Requesting State's Central Authority the outcome of its
execution; and, if the request is denied, to inform the
Requesting State's Central Authority of the reasons for the
denial.
Article 6 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State shall pay all costs, except for the following items to be
paid by the Requesting State: fees of expert witnesses, costs
of translation, interpretation, and transcription, and
allowances and expenses related to travel of persons pursuant
to Articles 10 and 11.
Article 7 requires the Requesting State to comply with any
request by the Central Authority of the Requested State that
information or evidence obtained under the Treaty not be used
for proceedings other than those described in the request
without its prior consent. Further, if the Requested State's
Central Authority asks that information or evidence furnished
under this Treaty be kept confidential or be used in accordance
with specified conditions, the Requesting State must use its
best efforts to comply with the conditions. Once information is
made public in the Requesting State in accordance with either
of these provisions, no further limitations on use apply.
Nothing in the article prevents the use or disclosure of
information to the extent that there is an obligation to do so
under the Constitution of the Requesting State in a criminal
prosecution. The Requesting State is obliged to notify the
Requested State in advance of any such proposed use or
disclosure.
Article 8 provides that a person in the Requested State
from whom testimony or evidence is requested pursuant to the
Treaty shall be compelled, if necessary, to appear and testify
or produce items and articles of evidence. The article requires
the Central Authority of the Requested State, upon request, to
furnish information in advance about the date and place of the
taking of testimony or evidence pursuant to this Article.
Article 8(3) further requires the Requested State to permit
the presence of persons specified in the request (such as the
accused, counsel for the accused, or other interested persons)
and to permit them to question the person giving the testimony
or evidence. 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, Article 8(4) provides that the testimony or evidence
shall be taken and the claim made known to the Central
Authority of the Requesting State for resolution by its
authorities.
Finally, in order to ensure admissibility in evidence in
the Requesting State, Article 8(5) provides a mechanism for
authenticating evidence that is produced pursuant to or that is
the subject of testimony taken in the Requested State.
Article 9 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of government departments and agencies in the
Requested State. The Requested State may further provide copies
of any documents, records or information in the possession of a
government department or agency, but not publicly available, to
the same extent and under the same conditions as it would
provide them to its own law enforcement or judicial
authorities. The Requested State has the discretion to deny
such requests pursuant to this paragraph, entirely or in part.
Article 9 also provides that no further authentication shall be
necessary for admissibility into evidence in the Requesting
State of official records pursuant to this Article where the
official in charge of maintaining them authenticates the
records through the use of Form B appended to this Treaty.
Article 10 provides a mechanism for the Requesting State to
invite the voluntary appearance 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. It also
states that the Central Authority of the Requesting State has
discretion to 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 that preceded his departure from the Requested
State. Any safe conduct provided for by this article ceases
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 if the person
has left the Requesting State and voluntarily returns to it. An
extension of up to fifteen days may be granted by the
Requesting State's Central Authority if, in its discretion,
there is good cause to do so.
Article 11 provides for transfer of a person in custody in
the Requested State to the Requesting State for purposes of
assistance under the Treaty (for example, a witness
incarcerated in the Requested State may be transferred to the
Requesting State to have his deposition taken in the presence
of the defendant), provided that the person in question and the
Central Authorities of both States agree. The article also
provides for voluntary transfer of a person in the custody of
the Requesting State to the Requested State for purposes of
assistance under the Treaty (for example, a defendant in the
Requesting State may be transferred for purposes of attending a
witness deposition in the Requested State), if the person
consents and if the Central Authorities of both States agree.
Article 11(3) further establishes both the express
authority and the obligation of the receiving State to maintain
the person transferred in custody unless otherwise authorized
by the sending State. The return of the person transferred is
subject to terms and conditions agreed to by the Central
Authorities, and the sending State is not required to initiate
extradition proceedings for return of the person transferred.
The person transferred receives credit for time served in the
custody of the receiving State.
Article 12 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items specified in a request.
Article 13 obligates the Requested State to use its best
efforts to effect service of any document relating, in whole or
in part, to any request for assistance under the Treaty. A
request for the service of a document requiring a person to
appear in the Requesting State must be transmitted a reasonable
time before the scheduled appearance. Proof of service is to be
provided in the manner specified in the request.
Article 14 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.
It provides that, upon request, every official who has custody
of a seized item is required to certify, through the use of
Form C appended to the Treaty, the continuity of custody, the
identity of the item, and the integrity of its condition. No
further certification is required. The certificate is
admissible in evidence in the Requesting State. The article
further provides that the Central Authority of the Requested
State may impose terms and conditions deemed necessary to
protect bona fide third party interests in items to be
transferred.
Article 15 requires the Requesting State's Central
Authority, upon request of its counterpart in the Requested
State, to return items any articles of evidence furnished to it
in the execution of a request as soon as possible.
Article 16 provides that, if the Central Authority of one
Contracting Party becomes aware of proceeds or
instrumentalities of offenses that are located in the other
Party and may be restrainable, forfeitable or otherwise subject
to seizure, it may so inform the Central Authority of that
other Party. If the Party receiving such information has
jurisdiction in this regard, it may present this information to
its authorities for a determination whether any action is
appropriate. The Central Authority of the Party receiving such
information is required to inform the Central Authority that
provided the information of any action taken.
Article 16 also obligates the Contracting Parties to assist
each other to the extent permitted by their respective laws in
proceedings relating to restraint, forfeiture and confiscation
of the proceeds and instrumentalities of offenses, restitution
to victims of crime, and collection of fines imposed as
sentences in criminal prosecutions. The Party having custody
over proceeds or instrumentalities of offenses is required to
dispose of them in accordance with its laws. Either party may
share forfeited assets, or the proceeds of their sale, to the
extent not prohibited by the transferring party's laws and upon
such terms as it deems appropriate.
Article 17 states that assistance and procedures provided
in the Treaty shall not prevent either Contracting Party from
granting assistance to the other Party through the provisions
of other applicable international agreements or through the
provisions of its national laws. The Parties may also provide
assistance pursuant to any bilateral arrangement, agreement, or
practice which may be applicable.
Article 18 provides that the Central Authorities shall
consult, at times mutually agreed, to promote the most
effective use of the Treaty, and may agree upon such practical
measures as may be necessary to facilitate the Treaty's
implementation.
Article 19 provides that the Contracting Parties shall
exchange diplomatic notes notifying one another of the
completion of their respective requirements for entry into
force, whereupon the Treaty shall enter into force. Article 19
further provides that either party may terminate the Treaty by
written notice of the other party, termination to be effective
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
favoring approval of this Treaty by the Senate as soon as
possible.
Respectfully submitted.
Madeleine Albright.