[Senate Treaty Document 105-47]
[From the U.S. Government Publishing Office]
105th Congress Treaty Doc.
SENATE
2d Session 105-47
_______________________________________________________________________
TREATY WITH CZECH REPUBLIC ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL
MATTERS
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE CZECH REPUBLIC ON
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON
FEBRUARY 4, 1998
May 22, 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, May 22, 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 United States of America and the Czech Republic on Mutual
Legal Assistance in Criminal Matters, signed at Washington on
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 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: locating or identifying persons or items; serving
documents; taking testimony or statements of persons;
transferring persons in custody for testimony or other
purposes; providing documents, records, and articles of
evidence; executing requests for searches and seizures;
immobilizing assets; assisting in proceedings related to
forfeiture of assets, restitution, and criminal fines; and
providing any other assistance consistent with 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, April 14, 1998.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
between the United States of America and the Czech Republic on
Mutual Legal Assistance in Criminal Matters (the ``Treaty'')
signed at Washington on 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 countries.
The Treaty with the Czech Republic 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, terrorism, other violent crime, and
money laundering and other white collar crime. The Treaty is
designed to be self-executing and will not require implementing
legislation.
Article 1 sets forth a non-exclusive list of the major
types of assistance to be provided under the Treaty, including
locating or identifying persons or items; serving documents;
taking the testimony or statements of persons; transferring
persons in custody for testimony or other purposes; providing
documents, records, and articles of evidence; executing
requests for searches and seizures; immobilizing assets;
assisting in proceedings related to forfeiture of assets,
restitution, and criminal fines; and rendering any other
assistance consistent with the laws of the Requested State. The
scope of the Treaty includes not only criminal offenses, but
also forfeiture and other proceedings related to criminal
offenses, 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, except that the
Requested State may refuse to comply in whole or in part with a
request to the extent that the conduct would not constitute an
offense under its laws and the execution of the request would
require a court order. The Requested State must make every
effort to approve a request for assistance requiring such a
court order and grant assistance where the request establishes
a reasonable suspicion that the conduct, had it occurred in
that state, would constitute an offense under its laws. Article
1(4) states explicitly that the Treaty is not intended to
create rights on the part of any private person 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 the Czech Republic, the
Central Authority is the Office of the Prosecutor General and
the Ministry of Justice. This dual Central Authority
arrangement for the Czech Republic reflects the importance and
independence of the Office of the Prosecutor General in the
Czech Republic's criminal justice system. Although such an
arrangement is very rare among U.S. treaties in the mutual
assistance field, no practical problems with implementation of
the Treaty are anticipated.
Article 2 specifies on whose behalf each Central Authority
will make requests and it provides that the Central Authorities
will communicate directly with one another for purposes of the
Treaty.
Article 2 also requires each Central Authority to use its
best efforts to ensure that a request is not made where, in its
view, the offense does not have serious consequences or the
extent of assistance requested is unreasonable in view of the
sentence expected upon conviction.
Article 3 sets forth the limited 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
military offense that would not be an offense under ordinary
criminal law applicable generally or to a political offense (a
term expected to be defined on the basis of its usage in
extradition treaties). In addition, a request may be denied if
its execution would prejudice the sovereignty, security, order
public, or similar essential interests of the Requested State,
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 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. Unless
otherwise agreed, a request, including any attachments, shall
be in the language of the Requested State. The Requested State
has no obligation to translate the response, including any
attachments.
Article 5 requires that the Central Authority of the
Requested State execute the request promptly or transmit it to
the authority having jurisdiction to do so. It provides that
the competent authorities of the Requested State, including
courts, must have the authority to issue such orders to execute
a request under the Treaty as are authorized under the laws of
the Requested State with respect to domestic proceedings and
must do everything in their power to execute the request.
Under Article 5(3), requests are to be executed in
accordance with the laws of the Requested State except to the
extent 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 proceeding in that State, it may postpone execution
or, after consulting with the Central Authority of the
Requesting State, impose conditions on such execution. If the
Requesting State accepts assistance subject to such 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(6) requires the Central Authority of the
Requested State to respond to reasonable inquiries by the
Central Authority of the Requesting State regarding the status
of the execution of a request. Article 5(7) requires the
Central Authority of the Requested State to report promptly to
the Central Authority of the Requesting State on the outcome of
the execution of a request and, if the request is delayed or
postponed, to inform the Requesting State's Central Authority
of the reasons therefor.
Article 6 apportions between the two States the cost
incurred in executing a request. It provides that the Requested
State must pay all costs relating to the execution of the
request, except for the following items to be paid by the
Requesting State: fees of experts, the costs of translation,
interpretation, and transcription, and allowances and expenses
related to the travel of persons travelling either in the
Requested State for the convenience of the Requesting State or
pursuant to Articles 11, 12, and 13. If completeexecution will
entail expenses of an extraordinary nature, the Central Authorities are
to consult to determine the terms and conditions under which execution
may continue.
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
other than in the proceeding described in the request without
its prior consent.
Article 8 establishes a procedure for consultation between
Central Authorities in situations where a condition imposed by
the Requested State conflicts with a constitutional obligation
in the requesting State to disclose information. The Central
Authority of the Requested State is required to use its best
efforts to permit disclosures; with respect to a condition
imposed pursuant to Article 7, it is required to permit
disclosure unless prohibited by its law.
While Articles 7 and 8 vary from the U.S. model text, which
permits disclosure to meet constitutional obligations, the
flexibility they afford in allowing initial production of
information is viewed as benefiting U.S. interests overall. The
Department of State understands that the only circumstance in
which Czech law would not permit release is when information is
obtained from use of a wiretap. In that situation, federal and
state prosecutors in the U.S. in principle would face
limitations in their ability to pursue prosecution with respect
to a defendant who is denied access to the information obtained
from the Czech Republic.
Article 8(2) provides that information or evidence that has
been made public in the course of being used appropriately in
the proceeding for which it was provided may be used thereafter
for any purpose.
Article 9 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 provide a statement, 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
items and articles of evidence.
Article 9(3) further requires the Requested State to allow
the presence of persons specified in the request and to allow
them to specify questions to be posed to the person giving the
testimony or statement or producing the 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 9(4) provides that the
testimony, statement, or other evidence shall be taken and
provided, together with the claim, to the Central Authority of
the Requesting State for resolution by competent authorities of
that State.
Finally, in order to ensure admissibility in evidence in
the Requesting State, Article 9(5) provides a mechanism,
through the use of Form A appended to the Treaty, for
authenticating evidence that is produced pursuant to this
Article or that is the subject of testimony taken in the
Requested State, as well as a mechanism for attesting to the
absence of such records through the use of Form B appended to
the Treaty.
Article 10 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of a government department or agency or a court
in the Requested State. The Requested State may further provide
copies of records or information in the possession of a
government department or agency or a court in that State, 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 entirely or in part. Article 10(3) 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 or the
absence of such records through use of Form D appended to the
Treaty.
Article 11 provides a mechanism for the Requesting State to
invite the voluntary appearance in the Requesting State or in a
third State of aperson located in the Requested State. The
Requesting State shall indicate the extent to which the expenses will
be paid.
Article 11 further provides that an invited person may not
be prosecuted, detained, or subjected to any restriction of
personal liberty in the Requesting State by reason of acts or
convictions that preceded the person's departure from the
Requested State. The Central Authority of the Requesting State
has discretion to extend safe conduct to the effects of service
of process or to limit the application of the safe conduct. Any
such extension or limitation of safe conduct is required to be
communicated to the invited person before the person travels to
the Requesting State. Any safe conduct provided for by this
Article ceases seven days after the person has been notified
that the person's presence is no longer required, or when the
person has left the Requesting State and voluntarily returns to
it.
Article 12 provides for the temporary transfer of a person
in custody in the Requested State to the Requesting State or to
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 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. Article 12(3) establishes both the express authority and
the obligation of the receiving State to maintain the person
transferred in custody unless otherwise agreed by the Central
Authorities of both States. 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 13 facilitates transit through the Requested
State's territory of a person held in custody in a third State
whose personal appearance has been requested by the Requesting
State to give testimony or evidence or otherwise provide
assistance in criminal proceedings or other proceedings related
to criminal offenses. Article 13(3) also provides that the
Requested State has both the authority and the obligation to
keep the person in custody during transit. Each Contracting
State may refuse to grant transit of its nationals.
Article 14 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items specified in a request.
Article 15 requires the Requested State to use its best
efforts to effect service of any document relating, in whole or
in part, to a request for assistance under the Treaty. Any
request for the service of a document inviting 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 15
includes a description of two acceptable means of providing
service, but does not preclude use of other means.
Article 16 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 person 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. The certificate is
admissible in evidence in the Requesting State. Article 16
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 the item
to be transferred.
Article 17 provides that, at or before the time of
transfer, the Central Authority of the Requested State may
require that the Requesting State return as soon as possible
any item furnished under the Treaty. A request for return not
made until after the transfer shall be complied with to the
extent feasible.
Article 18 requires the Requested State, upon request, to
use its best efforts to ascertain whether proceeds or
instrumentalities of an offense, potentially forfeitable or
otherwise subject to seizure under either State's laws, are
located in the Requested State. To the extent permitted by its
laws, the Requested State may take protective measures,
including seizure and temporary immobilization, to ensure that
such proceeds or instrumentalities are available for
forfeiture, and may give effect to a final forfeiture
determination in the Requesting State or initiate its own legal
action for the forfeiture of such assets. A Contracting State
that enforces a final legal determination regarding such assets
shall dispose of them in accordance with its laws. Either
Contracting State may share all or part of such forfeited
assets, or the proceeds of their sale, with the other State to
the extent permitted by the transferring State's laws and upon
such terms as it deems appropriate, giving due consideration to
relevant factors including the extent of cooperation provided
by the other Contracting State.
Article 19 obligates the Contracting States to assist each
other to the extent permitted by their respective laws to
facilitate restitution, including transfer of items obtained
through criminal activity.
Article 20 obligates the States to assist each other to the
extent permitted by their respective laws in proceedings
regarding criminal fines, excluding collection of such fines.
Article 21 states that the Treaty is not intended to
prevent the Contracting States from seeking and granting
assistance to each other through provisions of other
international agreements or domestic laws.
Article 22 provides that the Central Authorities of the
Contracting States shall consult, at times mutually agreed, to
promote the most effective use of the Treaty and to agree on
practical measures as may be necessary to facilitate the
Treaty's implementation.
Article 23 provides that the Treaty shall be subject to
ratification and that the instruments of ratification shall be
exchanged at Prague. The Treaty shall enter into force two
months after the exchange of instruments of ratification.
Article 23(3) provides that the Treaty shall apply to requests
presented after its entry into force even if the relevant acts
or omissions occurred before that date. In addition, Article 23
allows either Contracting State to terminate the Treaty with
six months written notice to the other Contracting State,
termination to take effect six months following 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
recommending approval of this Treaty by the Senate as soon as
possible.
Respectfully submitted.
Madeleine Albright.