[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
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U.S. GOVERNMENT PRINTING OFFICE
79-118 WASHINGTON : 2000
LETTER OF TRANSMITTAL
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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
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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.