[Senate Treaty Document 105-41]
[From the U.S. Government Publishing Office]
105th Congress Treaty Doc.
SENATE
2d Session 105-41
_______________________________________________________________________
TREATY WITH LITHUANIA 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 LITHUANIA ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS, SIGNED AT WASHINGTON ON JANUARY 16, 1998
April 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, April 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 the Republic of Lithuania on Mutual Legal
Assistance in Criminal Matters, signed at Washington on January
16, 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 activity more effectively. The Treaty
should be an effective tool to assist in the prosecution of a
wide variety of crimes, including ``white-collar'' crime and
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 the testimony or statements of persons;
providing documents, records, and articles of evidence;
locating or identifying persons or items; serving documents;
transferring persons in custody for testimony or other
purposes; executing requests for searches and seizures;
assisting in proceedings related to immobilization and
forfeiture of assets, restitution, and collection of fines; and
rendering any other form of assistance not prohibited by the
laws of the Requested State.
I recommend that the Senate give early and favorable
consideration to the Treaty and give its advice and consent to
ratification.
William J. Clinton.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, March 24, 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 Lithuania on Mutual Legal
Assistance in Criminal Matters (the ``Treaty''), signed at
Washington, on January 16, 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 countries. This Treaty
contains many provisions similar to those in the other
treaties.
The Treaty with Lithuania contains all essential provisions
sought by the United States and, indeed, resembles closely the
model U.S. text. It will enhance our ability to investigate and
prosecute a variety of offenses, including white-collar crime
and drug-trafficking offenses of particular interest to the
U.S. law enforcement community with respect to Lithuania. 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; locating or
identifying persons or item; serving documents; transferring
persons in custody for testimony or other purposes; executing
requests for searches and seizures; assisting in proceedings
related to immobilization and forfeiture of assets,
restitution, and collection of fines; and rendering any other
form of assistance not prohibited by the laws of the Requested
State. The cope of the Treaty includes not only criminal
matters, which may be civil or administrative in nature.
Article 1 states that assistance shall be provided without
regard to whether the conduct involved would constitute an
offense under the laws of the Requested State.
Article 1(4) states explicitly that the Treaty is not
intended to create rights of private parties to obtain,
suppress, or exclude any evidence, or to impede the execution
of a request.
Article 2 provides for the establishment of Central
Authorities and defines Central Authorities for purposes of the
Treaty. For the United States, the Central Authority is the
Attorney General or such persons in the Department of Justice
as the Attorney General designates. For Lithuania, the Central
Authority is the Office of the Prosecutor General and the
Ministry of Justice. The Central Authority for the Requesting
State is required to use its best efforts to ensure that a
request is not made where, in its view, the offense on which
the request is based does not have serious consequences, or the
extent of the assistance to be requested is unreasonable in
view of the sentence expected upon conviction.
The article also provides that the Central Authorities may
communicate directly with one another for purposes of the
Treaty.
Article 3(1) 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 related to a military
offense that would be an offense under ordinary criminal law.
In addition, a request may be denied if its execution would
prejudice the sovereignty, security or similar essential
interests of the Requested State, or if it is not made in
substantial compliance with the requirements set forth in
Article 4. Further grounds for denial are that the request
relates to a political offense (a term expected to be defined
on the basis of the term's usage in extradition treaties).
Before denying assistance, the Central Authority of the
Requested State is required under Article 3(2) 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 Requested State accepts assistance subject to these
conditions, it is requested to comply with the conditions. If
the Central Authority of the Requested State denies assistance,
it is required under Article 3(3) 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. Unless
otherwise agreed, the request shall be in the language or
translated into the language of the Requested State.
Article 5 requires the Central Authority of the Requested
State to execute the request promptly or to transmit it to the
authority having jurisdiction to do so. It provides that the
competent authorities of the Requested State shall do
everything in their power to execute a request, and that the
judicial or other competent authorities of the Requested State
shall have authority to issue subpoenas, search warrants, or
other orders necessary to execute the request. The Central
Authority of the Requested State must represent or make
arrangements for representation of the Requesting States in the
execution of a request for assistance.
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 contradicts or 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.
Article 5 additionally requires the Requested State's
Central Authority to respond to reasonable inquiries by the
Requesting State's Central Authority regarding the status of
the execution of a request; to report promptly to the
Requesting State's Central Authority the outcome of its
execution; and, if the request is delayed or postponed, to
inform the Requesting State's Central Authority of the reasons
for the delay or postponement.
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 experts, costs of
interpretation, translation and transcription, and the
allowances and expenses related to travel of persons either in
theRequested States for the convenience of the Requesting State
or pursuant to Articles 10 and 11.
Article 7 requires the Requesting State to comply with any
request by the Central Authority of the Requested State that
information or evidence obtained under the Treaty not be used
for any investigation, prosecution, or proceeding other than
those described in the request without its prior consent.
Further, if the Requested State's Central Authority asks that
information or evidence furnished be kept confidential or be
used in accordance with specified conditions, and the
Requesting State accepts the information subject to such
conditions, the Requesting State must use its best efforts to
comply with the conditions. Nothing in the article prevents the
use or disclosure of information to the extent that such
information is exculpatory to a defendant in a criminal
prosecution. The Requesting State is obliged to notify the
Requested State in advance of any such proposed use or
disclosure. Once information is made public in the Requesting
State in accordance with either of these provisions, no further
limitations on use apply.
Article 8 provides that a person in the Requested State
from whom testimony or evidence is requested pursuant to the
Treaty shall be compelled, if necessary, to appear and testify
or produce items, including documents, records, and other
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 and to permit
them to question the person giving the testimony or evidence.
In the event that a person whose testimony or evidence is being
taken asserts a claim of immunity, incapacity or privilege
under the laws of the Requesting State, Article 8(4) provides
that the testimony or evidence shall be taken and the claim
made known to the Central Authority of the Requesting State for
resolution by its authorities.
Finally, in order to ensure admissibility in evidence in
the Requesting State, Article 8(5) provides a mechanism through
the use of Forms A and B appended to the Treaty for
authenticating evidence that is produced pursuant to or that is
the subject of testimony taken in the Requested State (or
certifying its absence or nonexistence).
Article 9 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of executive,legislative or judicial authority
in the Requested State. The Requested State may further provide copies
of records or information in the possession of an executive,
legislative or judicial authority in that State, but not publicly
available, to the extent and under the same conditions as it would
provide them to its own law enforcement or judicial authorities. The
Requested State has the discretion to deny such requests entirely or in
part. Article 9 also provides that no further authentication shall be
necessary for admissibility into evidence in the Requesting State of
official records where the official in charge of maintaining them
authenticates the records through the use of Form C appended to the
Treaty. In like manner, the absence or nonexistence of such records is,
upon request, to be certified by the use of Form D, which shall be
admissible in evidence in the Requesting State.
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. Article 10(2) provides that the
Requesting State shall indicate the extent to which the
expenses will be paid. Article 10(3) provides 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 the person's
departure from the Requested State. Under Article 10(4), any
safe conduct provided for by this article ceases seven days
after the Central Authority of the Requesting State has
notified the person appearing that their presence is no longer
required, and the person being free to leave has not left, or
having left, has voluntarily returned.
Article 11 provides for temporary transfer of a person in
custody in the Requested State to the Requesting State or a
third State for purposes of assistance under the Treaty (for
example, a witness incarcerated in the Requested State may be
transferred to the Requesting State or to a third 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 agreed by
both Central Authorities. The return of the person transferred
is subject to terms and conditions agreed to by the Central
Authorities, and the sending State is not required to initiate
extradition proceedings for return of the person transferred.
The person transferred receives credit for service of the
sentence imposed in the sending State for time served in the
custody of the receiving State.
Article 12 requires the Requested State to use its best
efforts to ascertain the location or identity of person or
items specified in a request.
Article 13 obligates the Requested State to use its best
efforts to effect service of any document relating, in whole or
in part, to any request for assistance under the Treaty. A
request for the service of a document requiring a person to
appear in the Requesting State must be transmitted a reasonable
time before the scheduled appearance. Proof of service is to be
provided in the manner specified in the request.
Article 14 obligates the Requested State to execute
requests for search, seizure, and transfer 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 by the Central Authority of the
Requesting State, every official who has custody of a seized
item is required to certify, through the use of Form E 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 documents, records or other articles of
evidence obtained in the execution of a request under the
Treaty 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
Contracting Party and may be forfeitable or at least subject to
seizure under the laws of that Party, it may so inform the
Central Authority of that other Party. If the Party receiving
such information has jurisdiction, it maypresent 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 of the Party
that provided the information of the action taken.
Article 16(2) also obligates the Contracting Parties to
assist each other to the extent permitted by their respective
laws in proceedings relating to forfeiture of proceeds and
instrumentalities of offenses, restitution to victims of crime,
and collection of fines imposed as sentences in criminal
prosecutions. 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 all or part of such forfeited assets, or the proceeds of
their sale, with the other party, to the extent not prohibited
by the transferring party's laws and upon such terms as it
deems appropriate.
Article 17 states that assistance and procedures provided
in the Treaty shall not prevent either Contracting Party from
granting assistance to the other Contracting 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 shall
consult, at times mutually agreed, to promote the most
effective use of the Treaty, and may agree upon such practical
measures as may be necessary to facilitate the Treaty's
implementation.
Article 19 provides that the Treaty shall be subject to
ratification and the instruments shall be exchanged at Vilnius,
whereupon the Treaty shall enter into force. Article 19 further
provides that either party may terminate the Treaty by written
notice to the other party, termination to take effect six
months after the date of notification.
A Technical Analysis explaining in detail the provisions of
the Treaty is being prepared by the United States negotiating
delegation, consisting of representatives from the Departments
of Justice and State, and will be transmitted separately to the
Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate as soon as
possible.
Respectfully submitted.
Strobe Talbot.