[Senate Treaty Document 105-40]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 2d Session                                                      105-40
_______________________________________________________________________


 
   TREATY WITH ISRAEL 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 STATE OF ISRAEL ON MUTUAL LEGAL ASSISTANCE IN 
CRIMINAL MATTERS, SIGNED AT TEL AVIV ON JANUARY 26, 1998, AND A RELATED 
                 EXCHANGE OF NOTES SIGNED THE SAME DATE





 April 2, 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, April 2, 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 the State of Israel on Mutual Legal Assistance in 
Criminal Matters, signed at Tel Aviv on January 26, 1998, and a 
related exchange of notes signed the same date. 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, money laundering, 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 the testimony or statements of persons; 
providing documents, records, and articles of evidence; serving 
documents; locating or identifying persons or items; 
transferring persons in custody for testimony or for other 
assistance; executing requests for searches and seizures; 
assisting in proceedings related to seizure, immobilization and 
forfeiture of assets, restitution, and collection of fines; 
executing procedures involving experts; and providing 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 5, 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 State of Israel on Mutual Assistance in 
Criminal Matters (``the Treaty''), signed at Jerusalem on 
January 26, 1998, 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 countries. This Treaty 
contains many provisions similar to those in the other treaties 
and all of the essential provisions sought by the United 
States. 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-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 or items; transferring persons in 
custody for testimony or other assistance under this treaty; 
executing requests for searches and seizures; assisting in 
proceedings related to seizure, immobilization and forfeiture 
of assets; and providing any other form of assistance not 
prohibited under the laws of the Requested State.
    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).
    Article 1(4) states explicitly that the Treaty is intended 
solely for mutual assistance between the Parties. The Treaty 
provisions shall not give rise to any right, that does not 
otherwise exist, 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 2 provides for the establishment of Central 
Authorities and defines the Central Authorities for purposes of 
the Treaty. For the United States, the Central Authority is the 
Attorney General or an official designated by the Attorney 
General. For Israel, the Central Authority is the Minister of 
Justice or an official designated by the Minister of Justice. 
Article 2 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.
    Article 3 sets forth the circumstances under which the 
Requested State's Central Authority may deny assistance under 
the Treaty. A request may be denied if the request, if granted, 
would prejudice the sovereignty, security, important public 
policy, ordre public, or other essential interest of the 
Requested State, if it relates to a political offense, or to an 
offense under military law which would not be an offense under 
ordinary criminal law; or if the request 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 the conditions. If 
the Central Authority of the Requested States denies 
assistance, it must 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 provides that requests 
for assistance must be inwriting, except that the Central 
Authority of the Requested State may, in its discretion, accept a 
request in another form in urgent situations, but requires written 
confirmation within the time period determined by the Central Authority 
of the Requested State. All requests must be accompanied by a 
translation in the language of the Requested State unless otherwise 
agreed.
    Article 5 requires the competent authority of the Requested 
State to promptly execute the request or, where appropriate, to 
transmit it to the authority having jurisdiction to do so. The 
competent authorities of the Requested State must 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. In the case of Israel this authority will 
be derived from its domestic law. The Central Authority of the 
Requested State is required to make all necessary arrangements 
for the representation in the Requested State of the Requesting 
State in any proceeding arising out of a request for 
assistance.
    Under Article 5(3), requests are to be executed as 
empowered by the Treaty or by applicable law. 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 of that State, it may 
postpone execution or make execution subject to conditions 
determined to be necessary after consultation with the Central 
Authority of the Requesting State. If the Requesting State 
accepts assistance subject to such conditions, it must comply 
with them.
    Article 5(5) states that the Requesting State may request 
that the request for assistance, the contents of the request 
and its supporting documents, and the fact of granting such 
assistance be kept confidential, and discusses consequences of 
such a request for confidentiality. Article 5(6) requires the 
Central Authority of the Requested State to respond to 
reasonable requests by its counterpart concerning progress 
toward execution of the request. Article 5(7) 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.
    Article 6 apportions between the two 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 10 and 11. The Article also provides that, 
in cases in which extraordinary expenses arise, the Central 
Authorities of the Parties are to consult with one another to 
determine the manner in which the expenses shall be borne. 
Finally, the Article provides that the Parties shall also 
consult to determine the manner in which costs shall be borne 
in certain cases including requests for seizure, immobilization 
or forfeiture of assets or restraining orders.
    Article 7(1) provides that the Requested State shall not 
use evidence or information obtained under the Treaty for 
purposes other than those stated in the request without prior 
consent of the Central Authority of the Requested State.
    Article 7(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 required to comply with the conditions 
to the fullest extent possible. Under Article 7(3), nothing in 
the Article precludes the United States from using or 
disclosing information in a criminal prosecution if it is the 
Requesting State and is required to do so under its 
Constitution, or precludes Israel from using or disclosing the 
information in a criminal prosecution if it is the Requesting 
State and is obligated to do so under the fundamental rights 
provided under it law.
    Article 7(4) states, finally, that unless otherwise 
indicated by the Requested Party when executing the request, 
information or evidence, the contents of whichhave been 
disclosed in a public judicial or administrative proceeding related to 
the request, may thereafter be used for any purpose.
    Article 8 provides that the Requested State must, upon 
request, endeavor to obtain a statement of a person for the 
purpose of an investigation, prosecution or proceeding of the 
Requesting State. The Requested State, if necessary, must 
compel the appearance of a person for taking testimony and 
producing documents, records, and articles to the same extent 
as would be permitted in investigations, prosecutions, and 
proceedings of that State. 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 statement, testimony or evidence pursuant to this 
Article.
    Article 8(4) requires the Requested State to permit the 
presence of such persons as specified in the request during the 
execution of the request, and to allow such persons to question 
the person giving the statement, testimony or evidence, 
provided that they would be competent to do so in the 
Requesting States. Under Article 8(5), 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 statement, 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.
    Finally, in order to ensure admissibility in evidence in 
the Requesting State, Article 8(6) provides that evidence 
provided by the Requested State pursuant to this Article or 
which is the subject of testimony taken under this Article may 
be authenticated by an attestation, or in another manner 
specified by the Requesting State, which may include, in the 
case of business records, authentication in the manner 
indicated in Form A appended to the Treaty, if so requested. No 
further authentication or certification shall be necessary in 
order for such documentary information to be admissible in 
proceedings of the Requesting 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 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 or judicial authorities. However, 
the Requested State has the discretion to deny such requests 
entirely or in part.
    Official records produced pursuant to Article 9 may be 
authenticated under the provisions of the Convention Abolishing 
the Requirement of Legalization for Foreign Public Documents, 
dated 5 October 1961, or they may be authenticated by the 
official in charge of maintaining them in the manner specified 
by the Requesting State, which may include the use of Form B 
appended to the Treaty, if so requested. No further 
authentication or certification shall be necessary in order for 
such records to be admissible in evidence in proceedings of the 
Requesting State.
    Article 10 provides that when the Requesting State requests 
the voluntary appearance of a person before authorities of that 
State, the Requested State shall invite the person to appear 
before the appropriate authority of the Requesting 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 shall promptly inform the Central 
Authority of the Requesting State of the response of the 
person.
    Article 11 provides for the temporary transfer to one 
State, for purposes of assistance under the Treaty, of a person 
in custody in the other State, provided that the person in 
question consents and the Central Authorities of both States 
agree. Article 11(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 for 
service of the sentence imposed inthe sending State for time 
served in the custody of the receiving State. Article 11(4) provides 
that if the sending State notifies the receiving State that the 
transferred person is no longer required to be held in custody that 
person must be either expeditiously returned to the sending State or be 
set at liberty. A person so set at liberty is entitled to the cost of 
his return travel to the sending State, if he returns to that State.
    Article 12 provides that a person appearing before 
authorities of the receiving State pursuant to a request under 
Article 10 or 11 will not, with respect to criminal 
proceedings, be subject to service of process, or be detained 
or subjected to any other restriction of liberty, with respect 
to any acts or conviction which preceded that person's 
departure from the sending State, except as provided by Article 
11. The Central Authority of the Requesting State may, in its 
discretion, determine that a person appearing before its 
authorities pursuant to a request under Article 10 or 11 will 
not, with respect to civil proceedings, be detained or 
subjected to any restriction of personal liberty, with respect 
to any acts or omissions which preceded his departure from the 
Requested State. Where not inconsistent with its domestic laws, 
the Central Authority of the receiving States may, in its 
discretion, determine that a person appearing before its 
authorities pursuant to a request under Article 10 or 11 will 
not, with respect to civil proceedings, be subject to service 
of process with respect to any acts or omissions which preceded 
his departure from the sending State. Safe conduct, as provided 
in Article 12, ceases fifteen days after the person has been 
notified that his presence is no longer required, and being 
physically able to depart, he has not left the receiving State, 
or when the person, having left the Requesting State, 
voluntarily returns.
    Article 13 obligates the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items specified in a request.
    Article 14 obligates the Requested State to use its best 
efforts to execute a request to effect service of a document, 
and to the extent possible to effect such service in the manner 
specified by the Requesting State. A request for the service of 
a document seeking the appearance of a person before any 
authority in the Requesting State must be transmitted 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. If services cannot be 
effected, or cannot be effected in the manner specified, the 
Requesting State must be informed and advised of the reasons.
    Article 15 obligates the Requested States to execute 
requests for search, seizure, and delivery of any article 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, and to the extent possible, 
every official who has custody of a seized item is required to 
certify in a manner specified by the Requesting State, which 
may include the use of Form C appended to this Treaty, the 
continuity of custody, the identity of the item, and the 
integrity of its condition. No further authentication or 
certification is required for a certification under this 
paragraph to be admissible as proof of the truth of the matters 
asserted therein.
    Finally, Article 15 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 16 requires the Requesting State's Central 
Authority, upon request of its counterpart in the Requested 
State, to return as soon as possible any documents, records, or 
articles of evidence furnished to it in execution of a request 
under the Treaty.
    Article 17 addresses issues relating to assistance in 
forfeiture and other proceedings. It obligates the Parties to 
assist each other, to the extent permitted by their respective 
laws, in procedures relating to the forfeiture of the proceeds 
and instrumentalities of offenses, which may include action to 
temporarily seize or immobilize the proceeds or 
instrumentalities pending further proceedings. If the Central 
Authority of either Party becomes aware of proceeds or 
instrumentalities of offenses which may be forfeitable or 
otherwise subject to seizure or immobilization under the laws 
of the otherParty, it may so inform the Central Authority of 
the other Party. A Party that has custody over proceeds or 
instrumentalities of offenses shall 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. The Parties are required to assist each other, to the 
extent permitted by their respective laws, in connection with 
restitution to victims of crime, and the imposition or collection of 
fines in criminal proceedings. However, they are not obligated to 
enforce orders of restitution or to collect fines or to enforce 
judgments imposing fines.
    Article 18 provides that if the authorities of one Party 
become aware of criminal acts which the other Party may have 
jurisdiction to investigate or prosecute, the Central Authority 
of the first Party may refer the matter and, upon request , 
submit any relevant evidence to the Central Authority of the 
other Party.
    Article 19 states that assistance and procedures provided 
in this Treaty shall not prevent either Party from granting 
assistance to the other Party through the provisions of other 
applicable international agreements, or through the provisions 
of its domestic laws. The Parties may also provide assistance 
pursuant to any applicable bilateral arrangement or agreement, 
provided that such assistance is not prohibited by the laws of 
the Requested State.
    Article 20 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 the 
Treaty's implementation.
    Article 21 provides that the Treaty is subject to 
ratification, and the instruments of ratification will be 
exchanged as soon as possible. The Treaty will enter into force 
upon the exchange of instruments of ratification. The Treaty 
applies to any request presented after the date of its entry 
into force, even if the request relates to offenses which 
occurred before that date. Either Party may terminate the 
Treaty by means of written notice to the other Party, 
termination to take effect six months following the date of 
notification.
    When the Treaty was signed on January 26, 1998, the United 
States and Israel exchanged diplomatic notes, which was an 
integral part of the Treaty, addressing the relationship of the 
Treaty and Convention Between the Government of the United 
States of America and the Government of the State of Israel 
with Respect to Taxes on Income, signed on November 20, 1975, 
with Protocols signed on May 30, 1980 and on January 26, 1993, 
which entered into force on December 30, 1994 (the ``Tax 
Convention''). In those notes, the Parties express their 
understanding that this Treaty applies to ``fiscal offenses'', 
defined as criminal tax offenses, but assistance will not be 
requested under this Treaty with respect to a fiscal offense if 
the case concerned would, by its nature, come within the scope 
of the provision for cooperation between tax authorities 
contained in the Tax Convention, unless the form of assistance 
requested is not included within the framework of the Tax 
Convention or the case concerned also includes additional 
serious non-fiscal offenses. In any event, a request for 
assistance under this Treaty with regard to a fiscal offense 
should specify whether assistance under the Tax Convention has 
been previously requested or granted. The Parties also 
expressed their understanding in these notes that requests for 
assistance in the form of bank records with respect to a fiscal 
offense will be made only in connection with serious offenses 
involving willful, fraudulent conduct. Serious offenses would 
include, for example, cases involving substantial sums of money 
or involving a pattern of criminal conduct.
    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.





                                
