[Senate Treaty Document 105-38]
[From the U.S. Government Publishing Office]
105th Congress Treaty Doc.
SENATE
2d Session 105-38
_______________________________________________________________________
TREATY WITH VENEZUELA 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 THE REPUBLIC OF VENEZUELA ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS, SIGNED AT CARACAS ON OCTOBER 12, 1997
March 27, 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 27, 1998.
To the Senate of the United States:
With a view of 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 Venezuela on Mutual Legal
Assistance in Criminal Matters, signed at Caracas on October
12, 1997. 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 for
the purpose of countering criminal activities 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 terrorism, other violent crimes, drug
trafficking, and money laundering and other white collar crime.
The Treaty is self-executing, and will not require new
legislation.
The Treaty provides for a broad range of cooperation in
criminal matters. Mutual assistance available under the Treaty
includes: (1) locating or identifying persons or items; (2)
serving documents; (3) taking testimony or statements of
persons; (4) transferring persons in custody, or persons
subject to criminal proceedings, for testimony or other
purposes; (5) providing documents, records, files, and articles
of evidence; (6) executing requests for searches and seizures;
(7) assisting in proceedings related to immobilization and
forfeiture of assets, restitution, and collection of fines; (8)
executing procedures involving experts; and (9) any other form
of assistance appropriate under 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, March 12, 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 the Republic of Venezuela on Mutual Legal
Assistance in Criminal Matters (``the Treaty''), signed at
Caracas on October 12, 1997. 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 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, other violent crimes, and money laundering and other
white-collar crime. The Treaty is designed to be self-executing
and will not require new legislation.
Article I contains a non-exhaustive list of the major types
of assistance to be provided under the Treaty, including taking
the testimony or statements of persons; providing documents,
records, files, and articles of evidence; locating or
identifying persons or items; serving documents; transferring
persons in custody, or persons subject to criminal proceedings,
for testimony or other purposes; executing requests for
searches and seizures; assisting in proceedings related to
immobilization and forfeiture of assets, restitution, and
collection of fines; executing procedures involving experts;
and any other form of assistance appropriate under the laws of
the Requested State. The scope of the Treaty includes not only
the investigation, prosecution, and prevention of criminal
offenses, but also proceedings related to criminal matters,
which may be civil or administrative in nature, including
proceedings relating to the immobilization and forfeiture of
assets, restitution, and collection of fines.
Assistance under the Treaty is to be provided without
regard to dual criminality (i.e., whether the conduct involved
would constitute an offense under the laws of both States).
However, assistance or cooperation relating to searches,
seizures, and forfeitures will only be provided if the Central
Authority of the Requested State determines that the act to
which the request relates in the Requesting State is also
punishable as an offense under the laws of the Requested State.
Article I(4) states explicitly that the Treaty is intended
solely for mutual legal assistance between the Parties of the
purpose ofinvestigations or prosecutions of acts punishable in
the Requesting State, the prevention of such acts, or proceedings
related to criminal matters ancillary to such acts. The Treaty
provisions shall not give rise to a right on the part of any private
person to obtain, suppress, or exclude any evidence, or to impede the
execution of a request for assistance.
Article II provides for the establishment of Central
Authorities and defines the Central Authorities for purposes of
the Treaty. For the United States, the Central Authority shall
be the Attorney General or a person designated by the Attorney
General. For Venezuela, the Central Authority shall be the
Attorney General of the Republic. This Article specifies that
the Central Authorities will make and receive requests pursuant
to the Treaty, and that the Central Authorities will
communicate directly with one another for purposes of the
Treaty. The Article also provides that, if appropriate, the
Central Authority of the Requested State may transmit the
request to other competent authorities for the purpose of its
execution. The Article requires that requests be promptly
executed by the authorities of the Requested State.
Article III sets forth the circumstances under which the
Requested State's Central Authority may deny assistance under
the Treaty. A request may be denied if it relates to a
political offense, or to a military offense that would be a
crime under ordinary criminal law. A request may also be denied
if its execution would prejudice the public order, security or
similar essential interests of the Requested State, or if the
request is not made in conformity with the provisions of the
Treaty.
Before denying assistance under Article III, the Central
Authority of the Requested State is required to consult with
its counterpart in the Requested State to consider whether
assistance can be given subject to such conditions as the
Central Authority of the Requested State deems necessary. If
the Requested State accepts assistance subject to conditions,
it is required to comply with them. If the Central Authority of
the Requested State denies assistance, it must inform the
Central Authority of the Requesting State of the reasons for
the denial.
Article IV prescribes the form and contents of requests
under the Treaty, specifying the detail the information
required in each request. The Article provides that requests
for assistance must be in writing, except that the Central
Authority of the Requested State may accept a request in
another form in urgent situations, subject to written
confirmation within ten days thereafter. All requests must be
accompanied by a translation in the language of the Requested
State.
Article V requires the competent authorities of the
Requested State to do everything in their power to execute
requests. The Article provides that the Courts of the Requested
State shall have the authority to issue subpoenas, search
warrants, or other orders necessary to execute the request.
The Central Authority of the Requested State is required to
make all necessary arrangements for,and meet the costs of, the
representation in the Requested State of the Requesting State in any
proceedings arising out of a request for assistance pursuant to the
Treaty. Under Article V(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 a request would interfere with an ongoing
criminal investigation, prosecution, or proceeding in that
State, it may postpone execution or, after consultations with
the Central Authority of the Requesting State, make execution
subject to conditions. If the Requesting State accepts
assistance subject to such conditions, it is required to comply
with them.
Article V(5) further requires the Requested State to use
its best efforts to keep confidential a request and its
contents if confidentiality is requested by the Central
Authority of the Requesting State. If the request cannot be
executed without breaching such confidentiality, the Central
Authority of the Requested State must so inform the Central
Authority of the Requesting State, which will then determine
whether the request should nevertheless be executed.
Finally, Article V(6) requires the Central Authority of the
Requested State to promptly inform its counterpart from the
Requesting State of the outcome of the execution of the
request, and, if the execution of the request is denied,
delayed, or postponed, of the reasons therefor.
Article VI apportions between the States the costs
associated with the execution of requests. The Article provides
that the Requested State is responsible for paying all costs
relating to the execution of a request, except that the
Requesting State must pay for the fees of expert witnesses, the
costs of translation, interpretation, and transcription, and
the allowances and expenses related to the travel of persons
pursuant to Articles X and XI. The Article also provides that,
in cases in which extraordinary expenses arise, the Central
Authorities are to consult with one another to establish the
terms and conditions under which the assistance may be
provided.
Article VII provides that the Central Authority of the
Requested State may request that the Requesting State not use
any information or evidence obtained under the Treaty in any
investigation, prosecution, or proceeding other than that
described in the request without the prior consent of the
Central Authority of the Requested State. The Requesting State
is required to take all possible legal measures to comply with
such limitation.
Article VII(2) provides that the Central Authority of the
Requested State may request that information or evidence
furnished under the Treaty be kept confidential or be used only
subject to terms and conditions it may specify. If the
Requesting State accepts the information or evidence subject to
such conditions, it is requiredto take all possible legal
measures to comply with the conditions. The reference to ``all possible
legal measures'' was not intended by the negotiating delegations to
preclude a constitutionally required disclosure or use of information
in a criminal prosecution, and it was the understanding of the
negotiators that in such cases the obligation of confidentiality would
not apply. This point was discussed at length between the negotiating
delegations, and expressly agreed upon.
Article VII(3) states that once information or evidence has
been made public in the Requesting State in a manner consistent
with the other provisions of the Article, it may thereafter be
used for any purpose.
Article VIII provides that a person in the Requested State
from whom testimony or evidence is requested pursuant to the
Treaty shall be summoned and, if necessary, compelled to appear
and testify or produce items, including documents, records, and
articles of evidence. The Article requires the Central
Authority of the Requested State, upon request, to inform the
Requesting State in advance about the date and place of the
taking of the testimony or production of the evidence pursuant
to this Article.
Article VIII(3) also requires the Requested State, unless
it is prohibited from doing so by its domestic law, to permit
the presence of persons designated in the request, and to allow
such persons 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, the testimony or evidence shall nonetheless be taken and
the claim made known to the Central Authority of the Requesting
State for resolution by authorities of that State.
Article IX 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 also provide copies of
any records that are in the possession of authorities in that
State but that are not publicly available, to the same extent
and under the same conditions as such copies would be available
to its own law enforcement, administrative, or judicial
authorities. However, the Requested State has the discretion to
deny such requests entirely or in part.
Article X 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 is
required to indicate the extent to which the expenses of the
person will be paid. The Central Authority of the Requested
State is required to invite the person to appear and promptly
to inform the Requesting State of the person's response.
Article X further provides that, upon request by the person
invited to appear, the Requesting State may consider providing
security guarantees for that person during the period that his
or her presence is required in that State. The CentralAuthority
of the Requesting State may, in its discretion, determine that such
person shall not be subject to service of process, detained, or
subjected to any restriction of personal liberty by reason of acts or
convictions that preceded the person's departure from the Requested
State. In addition, such person may not be required by the Requesting
State to give statements or testify in proceedings other than those
specified in the request, unless the person consents in writing and the
Central Authorities of both Parties agree. The safe conduct ceases ten
days after notification by the Central Authority of the Requesting
State to its counterpart in the Requested State that the person's
presence is no longer required, or when the person, having left the
Requesting State, voluntarily returns.
Article XI provides for the temporary transfer to one State
Party, for purposes of assistance under the Treaty, of a person
in custody in the other State Party, provided that the person
in question consents in writing and the Central Authorities of
both States agree. Article XI(3) 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 custody of the sending State as
soon as circumstances permit or as otherwise agreed by the
Central Authorities of both States, without the need for
extradition proceedings. The person transferred is to receive
credit toward service of the sentence imposed in the sending
State for time served in the custody of the receiving State.
Article XII requires the Requesting State to take all
necessary measures to ascertain the location or identity of
persons or items specified in a request.
Article XIII requires the Requesting State to take all
necessary measures to effect service of any documents relating,
in whole or in part, to a request under the Treaty. The Article
further requires that any request for the service of a document
requiring the appearance of a person before an authority in the
Requesting State must be transmitted within a reasonable time
prior to the scheduled appearance. The Requested State is
required to return proof of service in the manner specified in
the request.
Article XIV 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.
In addition, this Article provides that the Central Authority
of the Requested State may impose terms and conditions on the
transfer of the seized items to protect third party interests
in the property.
Article XV requires the Requesting State's Central
Authority, upon request of its counterpart in the Requested
State, to return as soon as possible any items (including
documents, records, or articles of evidence) furnished to it in
execution of a request under the Treaty.
Article XVI provides that the Central Authority of either
Party may contact that of the other Party when it has reason to
believe that proceeds, fruits, or instrumentalities of offenses
are located in the territory of the other Party. The Article
obligates the Parties to assist each other, to the extent
permitted by their respective laws, in procedures relating to
the immobilization, securing, and forefeiture of the proceeds,
fruits, and instrumentalities of offenses, restitution to
victims of crime, and the collection of fines imposed as
sentences in criminal proceedings. The Party with custody over
proceeds, fruits, or instrumentalities of offenses is required
to dispose of them in accordance with its laws. Either Party
may transfer all or part of such assets, or the proceeds of
their sale, to the other Party, to the extent permitted by the
transferring Party's laws and upon such terms as it deems
appropriate.
Article XVII contains provisions regarding authentication
and certification. Notwithstanding any authentication or
certification necessary under its law, the Requested State
shall authenticate any document, record, or copy thereof, or
provide a certification regarding any article, in the matter
requested by the Requesting State, if such is not incompatible
with the laws of the Requested State. For the purpose of
facilitating the use of such authentications or certifications,
the Requesting State is required to enclose in the request the
appropriate forms or describe the particular procedure to be
followed.
Article XVIII states that the assistance and procedures set
forth in the Treaty shall not prevent either Party from
granting assistance to the other Party through the provisions
of other applicable international agreements to which they are
parties, or pursuant to any bilateral arrangement, agreement,
or practice that may be applicable, consistent with their
respective domestic laws.
Article XIX provides that the Central Authorities of the
Parties shall consult, at times mutually agreed, to promote the
most effective use of the Treaty, and may agree on such
practical measures as may be necessary to facilitate
implementation of the Treaty.
Article XX provides that the Treaty shall enter into force
upon written notification between the Parties, through
diplomatic channels, of compliance with their respective legal
requirements necessary for its approval. The Treaty shall apply
to any request presented after the date of its entry into
force, even if the relevant acts or omissions occurred before
that date.
Article XX also provides that the Treaty shall have
indefinite duration, but it allows either Party to terminate
the Treaty by written notice to the other Party, through the
diplomatic channel. Such termination would take effect six
months following the date of notification, and requests for
assistance that may be pending at the time of termination of
the Treaty may be executed if agreed by both Parties.
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,
Strobe Talbot.