[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.