[Senate Treaty Document 106-16]
[From the U.S. Government Publishing Office]



106th Congress                                              Treaty Doc.
                                 SENATE                                
 1st Session                                                  106-16
_______________________________________________________________________

                                     



 
  TREATY WITH UKRAINE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

TREATY BETWEEN THE UNITED STATES OF AMERICA AND UKRAINE ON MUTUAL LEGAL 
 ASSISTANCE IN CRIMINAL MATTERS WITH ANNEX, SIGNED AT KIEV ON JULY 22, 
1998, AND WITH AN EXCHANGE OF NOTES SIGNED ON SEPTEMBER 30, 1999, WHICH 
                PROVIDES FOR ITS PROVISIONAL APPLICATION




 November 10, 1999.--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.

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
79-118                     WASHINGTON : 1999


                         LETTER OF TRANSMITTAL

                              ----------                              

                                The White House, November 10, 1999.
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 Ukraine on Mutual Legal 
Assistance in Criminal Matters with Annex, signed at Kiev on 
July 22, 1998. I transmit also, for the information of the 
Senate, an exchange of notes which was signed on September 30, 
1999, which provides for its provisional application, as well 
as 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 drug trafficking 
offenses. The Treaty is self-executing. It provides for a broad 
range of cooperation in criminal matters. Mutual assistance 
available under the Treaty includes: taking of testimony or 
statements of persons; providing documents, records, and 
articles of evidence; serving documents; locating or 
identifying persons; transferring persons in custody for 
testimony or other purposes; executing requests for searches 
and seizures; assisting in proceedings related to restraint, 
confiscation, forfeiture of assets, restitution, and collection 
of fines; and 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, October 19, 1999.
The President,
The White House.
    The President: I have the honor to submit to you the Treaty 
Between the United States of America and Ukraine on Mutual 
Legal Assistance in Criminal Matters with Annex (``the 
Treaty''), signed at Kiev on July 22, 1998. I recommend that 
the Treaty be transmitted to the Senate for its advice and 
consent to ratification.
    Also enclosed, for the information of the Senate, is an 
exchange of notes under which the Treaty is being provisionally 
applied to the extent possible under our respective domestic 
laws, in order to provide a basis for immediate mutual 
assistance in criminal matters. Provisional application would 
cease upon entry into force of the Treaty.
    The Treaty covers mutual legal assistance in criminal 
matters. In recent years, similar bilateral treaties have 
entered into force with a number of other countries. The Treaty 
with Ukraine contains all essential provisions sought by the 
United States. It will enhance our ability to investigate and 
prosecute a range of offenses. 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 other items 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. The scope of the Treaty includes not only criminal 
offenses, but also proceedings related to criminal matters, 
which may be civil or administrative in nature.
    Article 1(3) 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 in 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 shall be 
the Attorney General or a person designated by the Attorney 
General. For Ukraine, the Central Authority shall be the 
Ministry of Justice and the Office of the Prosecutor General. 
The article provides that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty.
    Article 3 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 relates to a military 
offense that would not be an offense under ordinary criminal 
law. A further ground for denial is that the request relates to 
a political offense (a term expected to be defined on the basis 
of that term's usage in extradition treaties). In addition, a 
request may be denied if its execution would prejudice the 
security or similar essential interests of the Requested State, 
or if it 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 RequestedState 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 
requests in emergency situations but requires written 
confirmation within ten days thereafter unless the Central 
Authority of the Requested State agrees otherwise.
    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 
courts or other competent authorities of the Requested State 
shall have authority to issue subpoenas, search and arrest 
warrants, or other orders necessary to execute the request. The 
Central Authority of the Requested State must make all 
arrangements for representation of the Requesting State in any 
proceedings arising out of an assistance request.
    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 is prohibited by the laws of the Requested State.
    Article 5(4) provides that 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 the conditions, it shall comply 
with such conditions.
    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.
    This article 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 particular request; to report promptly to 
the Requesting State's Central Authority the outcome of its 
execution; and, if the request is denied, to inform the 
Requesting State's Central Authority of the reasons for the 
denial.
    Article 6 apportions between the two States the costs 
incurred in executing a request. It provides that the Request 
State shall pay all costs, except for the following items to be 
paid by the Requesting State: fees of expert witnesses, costs 
of interpretation, translation and transcription, and 
allowances and expenses related to travel of persons pursuant 
to Articles 10 and 11. If during the execution of the request, 
it becomes apparent that extraordinary expenses will be 
entailed, the Central Authorities shall 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 
for proceedings other than those described in the request 
without its priorconsent. Further, if the Requested State's 
Central Authority asks that information or evidence furnished under 
this Treaty be kept confidential or be used in accordance with 
specified conditions, the Requesting State must use its best efforts to 
comply with the conditions. Once information is made public in the 
Requesting State in accordance with either or these provisions, no 
further limitations on use apply. Nothing in the article prevents the 
use or disclosure of information to the extent that there is an 
obligation to do so under the Constitution of the Requesting State in a 
criminal prosecution. The Requesting State is obliged to notify the 
Requesting State in advance of any such proposed use or disclosure.
    Article 8 provides that a person in the Requesting State 
from whom testimony or evidence is requested pursuant to the 
Treaty shall be compelled, if necessary, to appear and testify 
or produce items, documents and records. 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 by written notification to the Central Authority of 
the Requesting State for resolution by its competent 
authorities. Finally, in order to ensure admissibility of 
evidence in the Requesting State, Article 8(5) provides a 
mechanism for authenticating evidence that is produced pursuant 
to or that is the subject of testimony taken in the Requested 
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 
Requesting State. The Requested State may further provide 
copies of any documents, records or information in the 
possession of a government department or agency, 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 refuse to execute, entirely or in part, such requests for 
records not publicly available. Article 9(3) provides that 
records produced pursuant to this Article shall, upon request, 
be certified by the appropriate form attached to the request. 
Article 9(3) also provides that no further authentication shall 
be necessary for admissibility into evidence in the Requesting 
State of official records pursuant to this Article.
    Article 10 provides a mechanism for the Requesting State to 
invite the voluntary appearance in its territory of a person 
located in the Requested State shall indicate the extent to 
which the expenses will be paid. It also states 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 his departure from the Requested State. Any safe 
conduct provided for by this article ceases seven days after 
the Central Authority of the Requesting State has notified the 
Central Authority of the Requested State that the person's 
presence is no longer required, or if the person has left the 
Requesting State and voluntarily returns to it.
    Article 11 provides for temporary transfer of a person in 
custody in the Requested State or in a third State to the 
Requesting State for purposes of assistance under the Treaty 
(for example, a witness incarcerated in the Requested State may 
be transferred 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 Requesting 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 time served in the 
custody of the receiving State.
    Article 12 establishes the authority of the Requested State 
to authorize transit through its territory of a person held in 
custody by a third State whose appearance has been requested by 
the Requesting State. The Requested State further has the 
authority and the obligation to keep the person in custody 
during transit. The Parties retain discretion to refuse to 
grant transit of their own nationals, however.
    Article 13 requires 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 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 15 obligates the Requested State to execute 
requests for search, seizure, and delivery of any item to the 
Requesting State if the request includes the information 
justifying such action under the laws of theappropriate. The 
Central Authority of the State receiving such information is required 
to inform the Central Authority that provided the information of any 
action taken.
    Article 17 also obligates the Contracting States to assist 
each other to the extent permitted by their respective laws in 
proceedings relating to forfeiture of the proceeds and 
instrumentalities of offenses, restitution to victims of crime, 
and collection of fines imposed as sentences in criminal 
prosecutions. This may include action to temporarily immobilize 
the proceeds or instrumentalities pending further proceedings. 
The Contracting State having custody over proceeds or 
instrumentalities of offenses is required to dispose of them in 
accordance with its laws. Either Contracting State may transfer 
all or part of such assets, or the proceeds of their sale, to 
the extent permitted by the transferring State's laws and upon 
such terms as it deems appropriate.
    Article 18 states that assistance and procedures provided 
in the Treaty shall not prevent either Contracting State from 
granting assistance to the other Contracting State through the 
provisions of other applicable international agreements or 
through the provisions of its national law. The Contracting 
States may also provide assistance pursuant to any bilateral 
arrangement, agreement, or practice which may be applicable.
    Article 19 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 may agree 
upon such practical measures as may be necessary to facilitate 
the Treaty's implementation.
    Article 20 provides that the Treaty is subject to 
ratification and the instruments shall be exchanged at 
Washington as soon as possible. The Treaty enters into force 
upon the exchange of instruments of ratification. Article 20 
further provides that either Contracting State may terminate 
the Treaty by written notice to the other Contracting State, 
with termination to be effective 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 
favoring approval of this Treaty by the Senate as soon as 
possible.
    Respectfully submitted,
                                                    Strobe Talbott.


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