[Senate Treaty Document 105-23]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 1st Session                                                     105-23
_______________________________________________________________________


 
       MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS WITH BARBADOS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
GOVERNMENT OF BARBADOS ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, 
               SIGNED AT BRIDGETOWN ON FEBRUARY 28, 1996





  September 3, 1997.--Agreement 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 Barbados on Mutual Legal Assistance in Criminal 
Matters, signed at Bridgetown on February 28, 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 forfeiture of assets, restitution, and collection of 
fines; 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 Barbados on Mutual Legal Assistance in Criminal 
Matters (``the Treaty''), signed at Bridgetown on February 28, 
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. This 
Treaty contains many provisions similar to those in the other 
treaties.
    The Treaty with Barbados contains all essential provisions 
sought by the United States. It will enhance our ability to 
investigate and prosecute a variety of offenses, including 
white collar crime and drug trafficking offenses of particular 
interest to the U.S. law enforcement community with respect to 
Barbados. The Treaty is designed to be self-executing and will 
not require new 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 
immobilization and forfeiture of assets, restitution and the 
collection of fines; 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 states that, except as otherwise provided in the 
Treaty, assistance shall be provided without regard to whether 
the conduct involved would constitute an offense under the laws 
of the Requested State.
    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, the Central Authority is the 
Attorney General or a person designated by the Attorney 
General. For Barbados, 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 an offense under ordinary criminal 
law. In addition, a request may be denied if its execution 
would prejudice the security or similar essential public 
interests of the Requested State, or if it is not made in 
conformity with the Treaty. Further grounds for denial are that 
the request relates to a political offense (a term expected to 
be defined on the basis of that term's usage in extradition 
treaties) or that execution of the request would be contrary to 
the Constitution of the Requested State. This latter provision 
is similar to clauses in other United States mutual legal 
assistance treaties, e.g., Jamaica.
    A final ground for denial of assistance is that the request 
is made pursuant to provisions of the treaty governing search 
and seizure (Article 14) or asset forfeiture (Article 16) and 
relates to conduct which would not be an offense if it had 
occurred in the Requested State. Thus, while ``dual 
criminality'' in general is not a prerequisite for assistance 
under this treaty, the Requested State does retain discretion 
to deny a request relating to assistance sought under Article 
14 or 16.
    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 the conditions. 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 detailthe information 
required in each request. 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 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 the 
judicial or other competent authorities 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 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 
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 items and articles of evidence.
    Article 8(3) further requires the Requested State to permit 
the presence of persons specified in the request 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 through 
the use of Form A appended to the Treaty 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. TheRequested State may further provide copies 
of records or information in the possession of a government department 
or agency, but not publicly available, to the 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 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 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 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 for good cause may be granted by the Requesting 
State's Central Authority in its discretion.
    Article 11 provides for temporary 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 service of the 
sentence imposed in the sending State 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 upon the Requesting State terms and conditions 
deemed necessary to protect 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 documents, records or articles of evidence 
obtained in the execution of a request under the Treaty 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 forfeitable or otherwise subject to seizure 
under the laws of that Party, it may so inform the Central 
Authority of that other Party. If the Party receiving such 
information has jurisdiction, 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 Authorityof the 
Party that provided the information of the 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 forfeiture of proceeds and 
instrumentalities of offenses, restitution to victims of crime, 
and collection of fines imposed as sentences in criminal 
prosecutions. This may include action to temporarily immobilize 
the proceeds or instrumentalities pending further proceedings. 
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 all or part of such forfeited 
assets or the proceeds of their sale with the other Party, 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 of the 
Contracting Parties 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 Treaty shall be subject to 
ratification and the instruments shall be exchanged at 
Washington, whereupon the Treaty shall enter into force. 
Article 19(3) provides that the treaty shall apply to requests 
presented after the date of its entry into force whether the 
relevant acts or omissions occurred prior to or after that 
date. Article 19 further provides that either party may 
terminate the Treaty by written notice to the other party, 
termination to take effect six months following the date of 
receipt of such notice.
    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.




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