[Senate Treaty Document 106-17]
[From the U.S. Government Publishing Office]
106th Congress Treaty Doc.
SENATE
2d Session 106-17
_______________________________________________________________________
TREATY WITH FRANCE 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 FRANCE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS,
SIGNED AT PARIS ON DECEMBER 10, 1998
January 31, 2000.--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 : 2000
LETTER OF TRANSMITTAL
----------
The White House, January 31, 2000.
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 France on Mutual Legal Assistance in Criminal
Matters, signed at Paris on December 10, 1998. I transmit also,
for the Senate's information, an explanatory note agreed
between the Parties regarding the application of certain
provisions. The report of the Department of State with respect
to the Treaty is enclosed.
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 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: obtaining the testimony or statements of persons;
providing documents, records, and 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.
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, December 14, 1999.
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 France on Mutual Legal Assistance in Criminal
Matters (the ``Treaty''), signed at Paris on December 10, 1998.
I recommend that the Treaty be transmitted to the Senate for
its advice and consent to ratification. Accompanying the Treaty
is an explanatory note between the Parties regarding the
application of certain provisions. I recommend that this note
be transmitted for the information of the Senate.
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 all of the essential provisions sought by the United
States. It will enhance our ability to investigate and
prosecute a variety of offenses, including terrorism and drug-
trafficking offenses of particular interest to the U.S. law
enforcement community with respect to France. The Treaty is
designed to be self-executing and will not require new
legislation.
Article 1(1) establishes the Parties' obligation to afford
each other the widest measure of mutual assistance in criminal
investigations or proceedings. Article 1(2) limits the scope of
the treaty, setting forth the circumstances under which the
Treaty does not apply. These circumstances include: the
execution of requests for provisional arrest and extradition,
the enforcement of criminal judgments except for forfeiture
decisions referred to in Article 11, or offenses under military
law that do not constitute offenses under ordinary criminal
law.
Article 1(3) states explicitly that the Treaty is not
intended to affect the exercise of rights otherwise available
to private persons under the laws of the State presented with a
claim based on rights. In the explanatory note on the Treaty,
the Parties agreed that, for the United States, the Treaty does
not create a new right for private persons to obtain
assistance, to suppress or exclude any testimony or evidence,
or to impede the execution of a request.
Article 2(1) 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 a person designated by the Attorney
General. For France, the Central Authority is the Ministry of
Justice. The Central Authorities shall communicate directly
with one another for the purposes of the Treaty.
Article 2(2) states that the Central Authorities are
obligated to 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, in particular those related to the
implementation of Article 9.
Under Article 2(3), the Central Authorities are required to
provide each other with information regarding the execution of
requests, and to respond to inquiries regarding progress toward
execution of specific requests.
Article 3 provides that the requests from Central
Authorities shall emanate from competent authorities. For the
United States, the competent authorities are prosecutors and
authorities with statutory or regulatory responsibility for
investigations of criminal offenses, including the referral of
matters to proseuctors for criminal prosecution. During the
negotiation of Article 3, the Parties agreed not to attempt to
list exhaustively in the Treaty the numerous state and federal
authorities in the United States that fall under the definition
of ``competent authorities,'' particularly because the
inadvertent omission of one from the list could diminish the
value of the Treaty to the United States. The explanatory note
does set forth an illustrative short list of such authorities,
however. To facilitate the identification of competent
authorities of the United States by France, Article 3 provides
that the presentation by the U.S. Central Authority of a
request coming from a competent authority establishes the
competence of those authorities. Article 3 further states that
the competent authorities for France are the judicial
authorities including the public prosecutor.
Article 4 prescribes the form and content of requests under
the Treaty, specifying in detail the information required in
each request. Requests for assistance shall be in writing.
Where appropriate, the Requesting State may indicate any time
limit within which the assistance should be provided.
Article 5 establishes a mechanism for transmission of
requests. The Central Authority of the Requesting State is
required to send requests to the Central Authority of the
Requested State. The results of execution shall be returned
through the same channel unless the Central Authorities agree
otherwise. In urgent situations, an advance copy of a request
may be transmitted by any means, including Interpol.
Thereafter, the Central Authority of the Requesting State is
required to transmit the original request to the Central
Authority of the Requested State.
Article 6(1) sets forth the circumstances under which the
Requested State may deny legal assistance. A request may be
denied if: (i) the offense to which the request relates is a
political offense or an offense related to a political offense;
or (ii) execution of the request would prejudice its
sovereignty, security, public order, or other essential
interests.
Before denying assistance, 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 Central Authority
of the Requested State denies assistance, it is required under
Article 6(3) to inform the Central Authority of the Requesting
State of the reason for denial.
Under Article 7, if the Central Authority of the Requested
State determines that execution of the request would interfere
with an ongoing criminal investigation or proceeding in that
State, it may, after consulting with the Central Authority of
the Requesting State, postpone execution or impose conditions
on it. If the Requesting State accepts assistance subject to
the conditions, it shall comply with them.
Article 8 establishes a mechanism for execution of
requests, which, in accordance with Article 8(1), is to occur
in accordance with the provisions of the Treaty and the laws of
the Requested State. Article 8(2) states that the Central
Authority of the Requested State is required to make all
necessary arrangements for a request to be presented to its
competent administrative and judicial authorities for
execution. Administrative and judicial authorities charged with
the execution of a request are obligated to use all necessary
measures available under the laws of the Requested State to
provide necessary or useful forms of assistance that are not
prohibited by its laws.
Article 8(3) provides that a person giving testimony or
evidence in the Requested State may assert such claims of
immunity, incapacity, or privilege as are available under the
Requested State's laws. The testimony of a person who asserts a
claim under the laws of the Requesting State shall be taken and
the claim recorded and preserved for consideration by the
judicial authorities of the Requesting State. If, within a
reasonable time prior to giving testimony or evidence, the
person notifies the executing authority of the Requested State
of the intention to assert such a claim, the Central
Authorities may consult with respect to it.
Under Article 8(4), a person who gives false testimony in
the execution of a request shall be subject to prosecution and
punishment in the Requested State in accordance with its laws.
Article 9(1) provides that, if the Requesting State
requests, the Requested State shall inform it of the dates and
places of the execution of the request. It further provides
that the Requested State may permit the authorities and persons
designated by the Requesting State to be present at, and assist
in, the execution of the request, including the taking of
depositions for use in a judicial proceeding in the Requesting
State, subject to Articles 6 and 7.
According to the explanatory note on the Treaty, Article
9(1) sets forth the principle that, with the consent of the
Requested State, persons designated by the Requesting State are
allowed to travel to the territory of the Requested State to be
present and to assist during the execution of a request. The
request for legal assistance should request the presence of
these persons. This paragraph also commitsthe two Parties to
accommodate such a request so that the deposition obtained in the
Requested State may be used in the Requesting State in compliance with
its internal procedure. This commitment does not preclude that, in
certain cases, which in practice shall be most exceptional, the
authority entrusted with the execution of the request may determine
that the presence and assistance of the designated persons are not
possible in a specific case.
Article 9(2) sets forth in detail certain procedures for
execution of a request, which are to be carried out as outlined
in the request insofar as they are not contrary to the
fundamental principles of a judicial proceeding in the
Requested State. Article 9(3) states that, upon request by the
Requesting State, the Requested State shall transmit original
documents or records to the extent possible; otherwise, the
Requested State shall transmit true copies. Article 9(4)
provides that business records shall be produced together with
a certificate or proces-verbal following the requirements of
Form A appended to the Treaty, and that such records shall be
admissible in evidence in the Requesting State.
Article 10 obligates the Requested State to execute
requests for the search, seizure, and delivery 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, if the Requesting State requests, a competent
authority in the Requested State shall provide a certificate or
proces-verbal that: (i) identifies the item seized; (ii)
identifies every official who has had custody of the item
seized; and (iii) describes the circumstances of custody.
Article 10 further provides that if, after seizure, any
transfer of custody of or material change in the item seized
occurs, the competent authority in the Requested State is
required to provide an additional certificate or proces-verbal
that describes the circumstances of such transfer of custody or
material change. No further proof of the identity of the item,
the continuity of custody, or the integrity of its condition is
required. The certificates or proces-verbaux shall be
admissible in evidence in the Requesting State as proof
thereof.
Article 11 establishes a mechanism for providing assistance
for proceedings related to the forfeiture of proceeds or
instrumentalities of criminal offenses. Article 11(2) provides
that, upon the request of the Requesting State, the Requested
State is obligated to take appropriate measures to locate and
identify proceeds or instrumentalities of offenses within the
Requested State. The request must specify the reasons for
believing that proceeds or instrumentalities are within the
Requested State. The Requested State is required to inform the
Requesting State of the results of its inquiry. Article 11(3)
states that, at the request of the Requesting State, the
Requested State may take protective measures to immobilize
temporarily proceeds or instrumentalities to ensure their
availability for forfeiture. Article 11(4) provides that, at
the request of the Requesting State, the Requested State may
execute a final decision of forfeiture pronounced by judicial
authorities of the Requesting State. The execution of such a
request shall be in accordance with the laws of the Requested
State.
Under Article 11(5), the Requested State that executes a
final forfeiture decision shall dispose of the forfeited
proceeds and instrumentalities in accordance with its laws. As
it determines appropriate, the Requested State also may
transfer all or part of such assets, or the proceeds of their
sale, to the Requesting State. Article 11 further provides
that, insofar as cooperation between the two States contributed
to a final forfeiting decision, the forfeiture State, to the
extent permitted by its laws and upon such terms as
it deems to be appropriate, may transfer all or part of such
assets, or the proceeds of their sale, to the other State.
Article 12 permanently transfers to the Requesting State
articles of evidence, including original documents and records,
that are transmitted pursuant to a request, unless the
Requested State asks at the time of transmission for their
return. Article 12 provides further that the Requested State
may require that the Requesting State agree to terms and
conditions for the care and return of articles of evidence
deemed to be necessary to protect third-party interests.
Article 13 obligates the States to assist each other to
facilitate restitution to the extent permitted by their
respective laws.
Article 14(1) requires the Requested State to use its best
efforts to keep confidential arequest and its contents if such
confidentiality is requested by the Central Authority of the Requesting
State. If the request cannot be executed without a breach of
confidentiality, the Central Authority of the Requested State shall
inform the Central Authority of the Requesting State, which will then
determine whether the request should nevertheless be executed.
Under Article 14(2), 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,
the Requesting State must use its best efforts to comply with
the conditions.
Article 14(3) further permits the Central Authority of the
Requested State to request that the Requesting State not use
any information or evidence obtained under this Treaty in any
investigation or proceeding other than that described in the
request without the prior consent of the Requested State. Under
such circumstances, the Requesting State shall comply with the
condition.
Article 14(4) states that nothing in Article 14 shall
preclude the use or disclosure of information or evidence to
the extent that an obligation to do so in a criminal proceeding
exists, for the United States under its Constitution or for
France under its Constitution and general principles of its law
having Constitutional value. To the extent possible, the
Requesting State shall notify the Requested State in advance of
any such use or disclosure.
Under Article 14(5), information and evidence obtained
under the conditions referred to in Articles 14(2) or 14(3) may
be used for any purpose if they have been made public within
the framework of the proceeding for which they were transmitted
to the Requesting State.
Article 15 establishes a mechanism for service of
procedural documents and judicial decisions. Under Article
15(2), service may be effected by simple transmission of the
document or decision to its addressee. If the Requesting State
requests, the Requested State shall serve the document using a
method provided by or compatible with its laws. Article 15(3)
provides that proof of service consists of a receipt dated and
signed by the addressee or a statement by the Requested State
noting the fact, the method, and the date of service. Either of
these documents shall be sent immediately to the Requesting
State. If service could not be effected, the Requested State
shall inform the Requesting State immediately of the reason.
Article 15(4) further requires the Central Authority of the
Requesting State to transmit a document requiring the
appearance of a person in the Requesting State to the Central
Authority of the Requested State at least 50 days before the
date of the scheduled appearance. Upon the request of the
Requesting State, the Central Authority of the Requested State
may waive this requirement for persons other than defendants.
Article 16(1) provides a mechanism for inviting the
voluntary appearance of a person in the Requested State's
territory. Article 16(2) requires such a request to mention the
approximate amount of the invited person's travel and
subsistence costs to be reimbursed. Upon the person's request,
the Requesting State may advance part or all of the funds to
pay those expenses through its diplomatic or consular missions
in the Requested State. Article 16(3) states that a witness or
expert who has been served and who fails to comply with a
document requiring an appearance in the Requesting State shall
not be subjected to any sanction or measure of restraint,
unless the person subsequently travels voluntarily to the
Requesting State, is duly served, and again fails to comply.
Article 17(1) provides that a witness or expert appearing
in the Requesting State in response to a request shall not be
subject to service of process, prosecuted, detained, or
subjected to any other restriction of personal liberty in that
State based on any prior acts or convictions unless the
Requesting State's Central Authority limits such safe conduct.
Any such limitation of safe conduct shall be communicated to
the witness or expert at the time the witness or expert is
invited to appear.
Under Article 17(2), a person appearing in the Requesting
State in response to a document served to answer for acts for
which that person is the subject of a criminal investigation or
prosecution, shall not be prosecuted, detained,or subjected to
any other restriction of personal liberty for any prior acts or
convictions.
Article 17(3) provides that the safe conduct provided for
by this Article ceases if the person, being free to leave, has
not left the Requesting State within a period of fifteen
consecutive days after being officially advised that the
person's presence was no longer necessary, or, having left, has
returned.
Article 18 provides that, upon the request of either State,
a person who is in custody in either State may be temporarily
transferred to the receiving State to give testimony or
evidence or other assistance in investigations or proceedings
in relation to a criminal matter. Article 18(2) sets forth the
circumstances under which a transfer may be denied: (i) if the
person in custody does not consent; (ii) if the person's period
of detention might be thereby extended; (iii) if the person's
presence is required for ongoing criminal proceedings; or (iv)
for reasons of safety, security, or other imperative concerns.
Article 18(3) establishes both the express obligation and the
authority of the receiving State to maintain the person
transferred in custody unless the sending State authorizes the
person's release.
Article 18(4) provides that the receiving State shall
require no proceeding to effect the return to the sending State
of the person transferred. The return is required to occur by
the date specified by the sending State. This period may be
extended by agreement between both States. Article 18(5)
obligates the sending State to deduct from the transferred
person's sentence any time that the person serves in the
custody of the receiving State. Article 18(6) provides that a
person appearing in either State pursuant to Article 18 may
receive the safe conduct authorized under Article 17.
Article 19 provides that, upon the request of the
Requesting State, the Requested State may authorize the transit
through its territory of a person held in custody by the
Requesting State or a third State whose personal appearance has
been requested by the Requesting State to give testimony or
evidence or otherwise provide assistance in investigations or
proceedings in relation to a criminal matter. The Requested
State shall have the obligation and the authority to keep the
person in custody during transit.
Article 20(1) requires that the Requested State, upon
request, provide copies of records that are in the possession
of its judicial or government authorities and that are
accessible to the public. Under Article 20(2), the Requested
State may provide copies of records that are in the possession
of its judicial authorities or government departments or
agencies but that are not accessible to the public, to the same
extent and under the same conditions that would apply to its
own competent authorities in obtaining such copies. The
Requested State has discretion to deny a request with respect
to the latter category entirely or in part.
Article 20(3) further provides that official records
produced pursuant to this Article and certified by a competent
authority of the Requested State as official records or copies
shall be admissible in evidence in the Requesting State. No
further authentication shall be necessary.
Article 21 obligates the Requesting State to translate the
request and any supporting documents into the language of the
Requested State.
Under Article 22, except as otherwise provided by the
Treaty, evidence, in whatever form, transmitted pursuant to the
Treaty shall be exempt from all legalization formalities.
Article 23 apportions between the two States the costs
incurred in executing a request. It requires the Requested
State to meet the costs of executing requests except for: (i)
the allowances and expenses related to travel of witnesses and
experts pursuant to Article 16 and the travel of persons in
custody pursuant to Articles 18 and 19; (ii) the costs of
interpretation and translation; (iii) the costs of services
provided by private parties at the request of the Requesting
State; (iv) and the fees of experts needed to fulfill a
request. If during the execution of a request it becomes
apparent that execution will entail expenses of an
extraordinary nature, the Central Authorities are obligated to
consult to determine the terms and conditions according to
which execution may continue.
According to the explanatory note on the Treaty, in order
to minimize the expense ofobtaining depositions in the United
States, the United States Government will arrange and pay for audio
recordings of depositions requested by French authorities and their
transmission to French authorities. On the other hand, the costs of
services furnished by private parties, such as those resulting from the
transcription of depositions by a court reporter, will be paid by
French authorities.
Under Article 24, each State may provide to the other State
information and evidence relating to criminal acts and may
request that the other State submit the information and
evidence to its competent authorities for criminal
investigation and prosecution where both States have
jurisdiction to investigate and prosecute those acts. Such
requests shall be transmitted through the respective Central
Authorities. The Requested State shall consider initiating an
investigation or prosecution as appropriate under its laws. The
Requested State is required to notify the Requesting State of
any action taken pursuant to the request and to transmit a copy
of any decision rendered.
Article 25 states that each State shall notify the other of
the completion of the procedures required for the entry into
force of the Treaty. The Treaty shall enter into force on the
first day of the second month following the date of receipt of
the latter of these notifications.
Article 26 provides that either State may terminate the
Treaty at any time by forwarding through the diplomatic channel
written notice of termination. Termination takes effect six
months after receipt 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,
Madeleine Albright.