[Senate Treaty Document 105-37]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 2d Session                                                      105-37
_______________________________________________________________________


 
   TREATY WITH SAINT KITTS AND NEVIS ON MUTUAL LEGAL ASSISTANCE IN 
                           CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
   GOVERNMENT OF SAINT KITTS AND NEVIS ON MUTUAL LEGAL ASSISTANCE IN 
  CRIMINAL MATTERS, SIGNED AT BASSETERRE ON SEPTEMBER 18, 1997, AND A 
RELATED EXCHANGE OF NOTES SIGNED AT BRIDGETOWN ON OCTOBER 29, 1997, AND 
                            FEBRUARY 4, 1998





March 20, 1998.--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, March 20, 1998.
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 Saint Kitts and Nevis on Mutual Legal Assistance 
in Criminal Matters, signed at Basseterre on September 18, 
1997, and a related exchange of notes signed at Bridgetown on 
October 29, 1997, and February 4, 1998. 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 immobilization and forfeiture of assets; 
restitution; collection of fines; 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 related exchange of notes, and 
gives its advice and consent to ratification.

                                                William J. Clinton.


                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                         Washington, March 3, 1998.
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 Saint Kitts and Nevis on Mutual Legal Assistance 
in Criminal Matters (``the Treaty''), signed at Basseterre on 
September 18, 1997, and a related exchange of notes signed at 
Bridgetown on October 29, 1997, and February 4, 1998. 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 Saint Kitts and Nevis 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 United States law enforcement community. 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; 
collection of fines; 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 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.
    This Treaty, like the MLAT with Antigua and Barbuda, 
includes an exchange of diplomatic notes which confirms that 
assistance under the Treaty includes criminal tax matters, 
notwithstanding that Saint Kitts and Nevis has no income tax 
legislation at this time. The United States stated in its note 
that it does not intend to seek assistance under the Treaty for 
civil and administrative income tax matters that are unrelated 
to any criminal matter. This merely restates what is in any 
event true by virtue of Article 1(1), which is a standard MLAT 
provision. The exchange of notes is an integral part of the 
Treaty.
    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 St. Kitts and 
Nevis, 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 other 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 the meaning 
of which is well-defined in the extradition context and 
expected to be defined on that basis in connection with mutual 
assistance) or that execution of the request would be contrary 
to the Constitution of the Requested State. This latter 
provision is similar to clauses in United States mutual legal 
assistance treaties with other countries in the region, 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 has 
occurred in theRequested 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 on this basis under Articles 14 and 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 detail the 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 must do everything 
in their power to execute a request, and that courts of the 
Requested State must 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 not to use 
information or evidence obtained under the Treaty for 
proceedings other than those described in the request without 
the prior consent of the Requested State. 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 requestedpursuant 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 provided 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(1) 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. Article 
10(2) 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. Under Article 10(3), 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 person transferred must be returned 
to the sending State as soon as possible and as 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 underthe 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. Article 14(3) 
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 items, including documents, records, or 
articles of evidence furnished to it in the execution of a 
request as soon as possible.
    Article 16(1) 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, 
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 Authority that provided the information of any action 
taken.
    Article 16(2) obligates the Contracting Parties to assist 
each other to the extent permitted by their respective laws in 
proceedings relating to restraint, forfeiture of the proceeds 
and instrumentalities of offenses, restitution to victims of 
crime, and collection of fines imposed as sentences in criminal 
prosecutions. Under Article 16(3), 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 with the 
other Party, to the extent not prohibited by the transferring 
party's laws and upon such terms as it deems appropriate. To 
the extent permitted by law, a conviction in the Requesting 
State may serve as a basis for forfeiture in the Requested 
State.
    Article 17 states that assistance and procedures provided 
in the Treaty will 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, including training and technical 
assistance, as may be necessary to facilitate the Treaty's 
implementation.
    Article 19 provides that the Treaty is subject to 
ratification and the instruments are to be exchanged at 
Washington, whereupon the Treaty enters into force. Article 
19(3) provides that the Treaty applies 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(4) further provides that either party may terminate the 
Treaty by written notice of the other party, termination to be 
effective six months after 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 and related exchange of notes 
by the Senate as soon as possible.
    Respectfully submitted,
                                                Madeleine Albright.





                              
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