[Senate Treaty Document 106-19]
[From the U.S. Government Publishing Office]





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106th Congress                                              Treaty Doc.
 2d Session                      SENATE                          106-19

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   TREATY WITH EGYPT ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS    

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
GOVERNMENT OF THE ARAB REPUBLIC OF EGYPT ON MUTUAL LEGAL ASSISTANCE IN 
CRIMINAL MATTERS, SIGNED AT CAIRO ON MAY 3, 1998 AND A RELATED EXCHANGE 
                          OF DIPLOMATIC NOTES




 February 2, 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, February 2, 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 the Arab Republic of Egypt on Mutual Legal 
Assistance in Criminal Matters, signed at Cairo on May 3, 1998. 
I transmit also a related exchange of diplomatic notes for the 
information of the Senate. 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 taking 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 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, November 23, 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 the Arab Republic of Egypt on Mutual Legal 
Assistance in Criminal Matters (the ``Treaty''), signed at 
Cairo on May 3, 1998. I recommend that the Treaty be 
transmitted to the Senate for its advice and consent to 
ratification. Accompanying the Treaty is a related exchange of 
diplomatic notes. I recommend that these notes 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 many provisions similar to those in the other treaties 
and 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 Egypt. The Treaty is 
designed to be self-executing and will not require new 
legislation.
    Article 1(2) 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 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 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 in 
connection with any conduct that is the subject of an 
investigation, prosecution, or proceeding under the laws of the 
Requesting State.
    Article 1(4) states explicitly that the Treaty is not 
intended to create rights of private parties to obtain, 
suppress, or exclude any evidence, or to impede the execution 
of a request.
    Article 2 provides for the establishment of Central 
Authorities and defines Central Authorities for purposes of the 
Treaty. For the United States, the Central Authority is the 
Attorney General or a person designated by the Attorney 
General. For Egypt, the Central Authority is the Minister of 
Justice or a person designated by the Minister of Justice.
    The article also provides that the Central Authorities 
shall communicate directly with one another for the purposes of 
the Treaty.
    Article 3(1) sets forth the circumstances under which a 
Requested State's Central Authority may deny assistance under 
the Treaty. A request may be denied if: (i) it relates to an 
offense under military law that would not be an offenseunder 
ordinary criminal law, (ii) its execution would prejudice the security 
or similar essential interests of the Requested State, or (iii) it is 
not made in conformity with the Treaty. In a diplomatic note dated 
April 22, 1998, the United States restated the understanding of the 
negotiating delegations that the ``security or similar essential 
interests'' provision in Article 3(1) provided an adequate basis upon 
which to deny assistance requests in cases the United States would 
consider political offenses. A reply note from Egypt acknowledges the 
Parties' understanding on this issue.
    Before denying assistance, the Central Authority of the 
Requested State is required under Article 3(2) to consult with 
its counterpart in the Requesting State to consider whether 
assistance can be given subject to such conditions as the 
Central Authority of the Requested State deems necessary. If 
the Requesting State accepts assistance subject to such 
conditions, it is required to comply with the conditions. If 
the Central Authority of the Requested State denies assistance, 
it is required under Article 3(3) to inform the Central 
Authority of the Requesting State of the reasons for the 
denial.
    Article 4 prescribes the form and content of requests under 
the Treaty, specifying in detail the information required in 
each request. The Article permits requests to be made in other 
forms in urgent situations but requires written confirmation 
within ten days unless the Central Authority of the Requested 
State agrees otherwise. Unless otherwise agreed, the request 
must be in the language of the Requested State.
    Article 5 requires the Central Authority of the Requested 
State to execute the request promptly or, where appropriate, to 
transmit it to the authority having jurisdiction to do so. It 
provides that the competent authorities of the Requested State 
must do everything in their power to execute a request, and 
that the courts of the Requested State shall have authority to 
issue orders necessary to execute the request. The Central 
Authority of the Requested State is required to make all 
necessary arrangements for and meet the costs of representation 
of the Requesting State in any proceedings arising out of a 
request for assistance.
    Under Article 5(3), requests are to be executed in 
accordance with the laws of the Requested State except to the 
extent that the Treaty provides otherwise. However, the method 
of execution specified in the request is to be followed except 
insofar as it is prohibited by the laws of the Requested State. 
Under Article 5(4), 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 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 such 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) additionally requires the Requested State's 
Central Authority to respond to reasonable inquiries by the 
Requesting State's Central Authority regarding the status of 
the execution of a request; to report promptly to the 
Requesting State's Central Authority the outcome of its 
execution; and, if execution of the request is denied, delayed 
or postponed, to inform the Requesting State's Central 
Authority of the reasons for the denial, delay or postponement.
    Article 6 apportions between the two States the costs 
incurred in executing a request. It provides that the Requested 
State shall pay all costs, except for the following items to be 
paid by the Requesting State: fees of expert witnesses, costs 
of translation, interpretation, and transcription, and the 
allowances and expenses related to travel of persons pursuant 
to Articles 10 and 11.
    Article 7 requires the Requesting State to comply with any 
request by the Central Authority of the Requested State that 
information of evidence obtained under the Treaty not be used 
for any investigation, prosecution, or proceeding other than 
that described in the request without its prior consent. 
Further, if the Requested State's Central Authority asks that 
information or evidence furnished be kept confidential or be 
used in accordance with specified conditions, and the 
Requesting State accepts the information subject to such 
conditions, the Requesting State must use its best efforts to 
comply with the conditions. Nothing in the article prevents the 
use or disclosure of information to the extent that there is an 
obligation to do so under the constitution of the Requested 
State in a criminal prosecution. The Requesting State is 
obliged to notify the Requested State in advance of any such 
proposed use or disclosure. Once information is made public in 
the Requesting State in accordance with the provisions of the 
article, no further limitations on use apply.
    Article 8(1) provides that a person in the Requested State 
from whom testimony or evidence is requested pursuant to the 
Treaty shall be compelled, if necessary, to appear and testify 
or produce items, including documents, records, and other 
articles of evidence. The article requires the Central 
Authority of the Requested State, upon request, to furnish 
information in advance about the date and place of the taking 
of testimony or evidence pursuant to this Article.
    Article 8(3) further requires the Requested State to permit 
the presence of persons specified in the request, except when 
the presence of such persons would be prohibited under the laws 
of the Requested State, and to permit them to question directly 
or indirectly the person giving the testimony or evidence. The 
Egyptian negotiating delegation confirmed that Egyptian law 
authorized the presence of the defendant during the taking of 
testimony and that Egyptian authorities would permit a 
U.S.prosecutor or other official to be present during the taking of 
such evidence or testimony in Egypt when such official could provide 
information relevant to the execution of the request. In the event that 
a person whose testimony or evidence is being taken asserts a claim of 
immunity, incapacity or privilege under the laws of the Requesting 
State, Article 8(4) provides that the testimony or evidence shall be 
taken and the claim made known to the Central Authority of the 
Requesting State for resolution by its authorities.
    Finally, in order to ensure admissibility in evidence in 
the Requesting State, Article 8(5) provides a mechanism, 
through the use of Forms A and B append to the Treaty, for 
authenticating evidence that is produced pursuant to or that is 
the subject of testimony taken in the Requested State (or 
certifying its absence or nonexistence).
    Article 9 requires that the Requested State provide the 
Requesting State with copies of publicly available records in 
the possession of government departments and agencies in the 
Requested State. The Requested State may further provide copies 
of records or information in the possession of a government 
department or agency in that State, but not publicly available, 
to the extent and under the same conditions as it would provide 
them to its own law enforcement or judicial authorities. The 
Requested State has the discretion to deny such requests 
entirely or in part. Article 9 also provides that no further 
authentication shall be necessary for admissibility into 
evidence in the Requesting State of official records where the 
official in charge of maintaining them authenticates the 
records through the use of form C appended to the Treaty. In 
like manner, the absence or nonexistence of such records is, 
upon request, to be certified by the use of Form D, which shall 
be admissible in evidence in the Requesting State.
    Article 10(1) provides a mechanism for the Requesting State 
to invite the voluntary appearance in its territory of a person 
located in the Requested State. The Requesting State shall 
indicate the extent to which the expenses will be paid. Article 
10(2) provides that the Central Authority of the Requesting 
State has discretion to determine that a person appearing in 
the Requesting State pursuant to this Article shall not be 
subject to service of process, or be detained or subjected to 
any restriction of personal liberty by reason of any acts or 
convictions that preceded the person's departure from the 
Requested State. Under Article 10(3), any safe conduct provided 
for by this article ceases seven days after the Central 
Authority of the Requesting State has notified the person 
appearing in the Requesting State that their presence is no 
longer required, and the person being free to leave has not 
left, or having left, has voluntarily returned. The Central 
Authority may extend this safe conduct period for up to fifteen 
days if it determines that there is good cause to do so.
    Article 11 provides that a person who is in the custody of 
a Contracting Party and whose presence is requested in the 
State of the other Contracting Party for purposes of assistance 
under the Treaty, shall be transferred to thatState if the 
person consents and the Central Authorities of both States agree. Under 
this article, for example, a witness incarcerated in the Requested 
State could be transferred to the Requesting State to have his 
deposition taken in the presence of the defendant or a defendant in the 
Requesting State could be transferred to attend a witness deposition in 
the Requested State.
    Article 11(2) further establishes both the express 
authority and the obligation of the receiving State to maintain 
the person transferred in custody unless otherwise authorized 
by the Sending 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 12 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items in the Requested State specified in a request.
    Article 13 obligates the Requested State to use its best 
efforts to effect service of any document relating, in whole or 
in part, to a request under the Treaty. A request for the 
service of a document requiring a person to appear in the 
Requesting State must be transmitted a reasonable time before 
the scheduled appearance. Proof of service is to be provided in 
the manner specified in the request.
    Article 14 obligates the Requested State to execute 
requests for search, seizure, and 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, upon request by the Central Authority of the 
Requesting State, every official who has custody of a seized 
item is required to certify, through the use of Form E appended 
to the Treaty, the identity of the item, the continuity of the 
item's custody and any changes in its condition. No further 
certification is required and the certificate is admissible in 
evidence in the Requesting State. Article 14(3) further 
provides that the Central Authority of the Requested State may 
impose upon the Requesting State terms and conditions deemed 
necessary to protect third-party interests in items to be 
transferred.
    Article 15 requires the Requesting State's Central 
Authority, upon request of its counterpart in the Requested 
State, to return documents, records or other articles of 
evidence obtained in the execution of a request under the 
Treaty as soon as possible.
    Article 16(1) provides that, if the Central Authority of 
one Contracting Party becomes aware of proceeds or 
instrumentalities of offenses that are located in the other 
Contracting Party and may be forfeitable or otherwise subject 
to seizure under the laws of that Party, it may so inform the 
Central Authority of that other Party. If the Party receiving 
such information has jurisdiction, it may present this 
information to its authorities for a determination whether any 
action is appropriate. The Central Authority of the Contracting 
Partyreceiving such information is required to inform the 
Central Authority of the Contracting Party that provided the 
information of the action taken.
    Article 16(2) also obligates the Contracting Parties to 
assist each other to the extent permitted by their respective 
laws in proceedings relating to forfeiture of proceeds and 
instrumentalities of offenses, restitution to victims of crime, 
and collection of fines imposed as sentences in criminal 
prosecutions. Under Article 16(3), the Contracting Party having 
custody over proceeds or instrumentalities of offenses is 
required to dispose of them in accordance with its laws. Either 
Contracting Party may share all or part of such forfeited 
assets, or the proceeds of their sale, with the other 
Contracting party, to the extent not prohibited by the 
transferring Contracting Party's laws and upon such terms as it 
deems appropriate.
    Article 17 states that assistance and procedures provided 
in the Treaty shall not prevent either Contracting Party from 
granting assistance to the other Contracting Party through the 
provisions of other applicable international agreements or 
through the provisions of its national laws. The Contracting 
Parties may also provide assistance pursuant to any bilateral 
arrangement, agreement or practice that may be applicable.
    Article 18 provides that the Central Authorities shall 
consult, at times mutually agreed, to promote the most 
effective use of the Treaty, and may agree upon such practical 
measures as may be necessary to facilitate the Treaty's 
implementation.
    Article 19 provides that the Treaty and its Appendices, 
which are integral parts of the Treaty, are subject to 
ratification. Article 19(3) provides that the Treaty applies to 
requests presented after the date of its entry into force, 
whether the relevant acts or omission occurred prior to or 
after that date. Article 19 further provides that either 
Contracting Party may terminate the Treaty by written notice to 
the other Contracting Party,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 
favoring approval of this Treaty by the Senate as soon as 
possible.
    Respectfully submitted,
                                                    Strobe Talbott.



                                 

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