[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.


                                  
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