[Senate Treaty Document 106-22]
[From the U.S. Government Publishing Office]





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106th Congress                                              Treaty Doc.
 2d Session                      SENATE                          106-22

_______________________________________________________________________




 
   TREATY WITH RUSSIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS   

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE RUSSIAN FEDERATION 
ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON 
             JUNE 17, 1999, AND A RELATED EXCHANGE OF NOTES




 February 10, 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 10, 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 United States of America and the Russian Federation on 
Mutual Legal Assistance in Criminal Matters, signed at Moscow 
on June 17, 1999. I transmit also, for the information of the 
Senate, a related exchange of notes and the report of the 
Department of State with respect to the Treaty.
    The Treaty is one of the 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, money 
laundering, organized crime 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 other items; serving 
documents; locating or identifying persons and items; executing 
requests for searches and seizures; transferring persons in 
custody for testimony or other purposes; locating and 
immobilizing assets for purposes of forfeiture, restitution, or 
collection of fines; and any other form of legal assistance not 
prohibited by the laws of the Requested Party.
    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 30, 1999.
The President,
The White House.
    The President: I have the honor to submit to you the Treaty 
Between the United States of America and the Russian Federation 
on Mutual Legal Assistance in Criminal Matters (the 
``Treaty''), signed at Moscow on June 17, 1999. 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 notes that I recommend 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 crimes, including terrorism, money 
laundering, organized crime and drug-trafficking offenses of 
particular interest to the U.S. law enforcement community with 
respect to the Russian Federation.
    The Treaty is designed to be self-executing and will not 
require new legislation.
    Article 1 states that the Parties shall provide to each 
other, in accordance with the Treaty, comprehensive mutual 
legal assistance in criminal matters. Article 1(2) defines 
legal assistance in criminal matters for purposes of the Treaty 
as assistance provided by the Parties in connection with: 
prevention, suppression, and investigation of crimes; criminal 
prosecutions; and other proceedings related to such criminal 
matters. Article 1(3) provides for legal assistance where the 
conduct that is the subject of the request constitutes a crime 
under the laws of both Parties. The Requested Party may, in its 
discretion, also provide legal assistance where the conduct 
that is the subject of the request would not constitute a crime 
under the laws of the Requested Party. Article 1(4) states 
explicitly that the Treaty is intended to apply solely between 
the Parties; it does not give rights to any other persons to 
obtain or exclude any evidence, or to impede the execution of a 
request. Article 1(5) defines the term ``person'' to include 
both individuals and legal entities in Article 1(4), Article 
2(4), Article 5(3) subparagraphs 1-5, Article 10(1), Article 
14), and Article 15(2).
    Article 2 sets forth a non-exclusive list of the major 
types of assistance to be provided under the Treaty, including 
obtaining testimony and statements; providing documents, 
records, and other items; serving documents; locating and 
identifying persons and items; executing requests for searches 
and seizures; transferring persons in custody for testimony or 
other purposes under the Treaty; locating and immobilizing 
assets for purposes of forfeiture, restitution, or collection 
of fines; and providing any other legal assistance not 
prohibited by the laws of the Requested Party.
    Article 3 provides for the establishment of Central 
Authorities and defines Central Authorities for purposes of the 
Treaty. Each Party must implement the provisions of the Treaty, 
including the making and receiving of requests, through its 
Central Authority. For the United States, the Central Authority 
is the Attorney General or persons designated by the Attorney 
General. For the Russian Federation, the Central Authority is 
the Office of the Procurator General of the Russian Federation 
or persons designated by the Procurator General.Article 3(3) 
provides that the Central Authorities will communicate directly with 
one another for the purposes of the Treaty, and may agree upon such 
practical measures as may be necessary to facilitate the implementation 
of the Treaty.
    Article 4 deals with the denial of legal assistance. 
Article 4(1) sets forth the circumstance under which a 
Requested Party's Central Authority may deny assistance under 
the Treaty. A request may be denied if: (i) it relates to a 
crime under military law that is not a crime under general 
criminal law, (ii) its execution would prejudice the security 
or other essential interests of the Requested Party, or (iii) 
it does not conform to the requirements of the Treaty. In an 
exchange of diplomatic notes dated June 17, 1999, September 22, 
1999, and October 20, 1999, the Parties restated the 
understanding of the negotiating delegations that the 
``security or other essential interests'' provision in Article 
4(1) provides an adequate basis upon which to deny assistance 
requests in cases the United States would consider political 
offenses. Under Article 4(2), the Requested Party may not 
decline execution of a request on the grounds of bank secrecy.
    Before denying assistance, the Central Authority of the 
Requested Party is required under Article 4(3) to consult with 
its counterpart in the Requesting Party to consider whether 
legal assistance can be given subject to such conditions as the 
Central Authority of the Requested Party deems necessary. If 
the Requesting Party accepts assistance subject to such 
conditions, it is required to comply with the conditions. If 
the Central Authority of the Requested Party denies assistance, 
it is required under Article 4(4) to inform the Central 
Authority of the Requesting Party of the reasons for the 
denial.
    Article 5 prescribes the form and content of written 
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 Party agrees otherwise.
    Article 6 provides that, except as otherwise agreed by the 
Central Authority of the Parties, requests for legal assistance 
and documents attached to them must be accompanied by a 
translation into the language of the Requested Party.
    Article 7 addresses the execution of requests. Article 7(1) 
requires the Central Authority of the Requested Party to 
execute a request promptly or to transmit it to the authority 
having jurisdiction to do so. It obligates the competent 
authorities of the Requested Party to do everything in their 
power to execute a request in a timely manner. Article 7(2) 
requests the Central Authority of the Requested Party to 
represent the interests of the Requesting Party in executing 
the requests.
    Under Article 7(3), requests are to be executed in 
accordance with the laws of the Requested Party except if the 
Treaty provides otherwise. It provides that the competent 
authorities of the Requesting Party will have the authority to 
issue subpoenas, search warrants, or other orders necessary for 
the execution of requests. Except if prohibited by its laws, 
the Requested Party must follow procedures specified in the 
request. Under Article 7(4), if the Central Authority of the 
Requested Party considers that execution of a request will 
interfere with a criminal investigation, criminal prosecution, 
or proceeding related to a criminal matter ongoing in that 
State, it may postpone execution or impose conditions on 
execution after consultation with the Central Authority of the 
Requesting Party. If the Requesting Party accepts legal 
assistance subject to such conditions, it must comply with 
them.
    Article 7(5) further requires the Requested Party, if so 
requested, to use its best efforts to keep confidential a 
request and its contents, and to inform the Requesting Party's 
Central Authority if the request cannot be executed without 
breaching such confidentiality. This provides the Requesting 
Party an opportunity to decide whether to pursue the request or 
to withdraw it in order to maintain confidentiality.
    Article 7(6) requires the Requested Party's Central 
Authority to respond to inquiries by the Requesting Party's 
Central Authority regarding the status of the execution of a 
request. Article 7(7) states that, upon request of the Central 
Authority of the Requesting Party, the Central Authority of the 
Requested Party must furnish information in advance about the 
date and place of the execution of a request. During the 
execution of a request, the Requested Party must permit the 
presence of such persons as are specified therein.
    Article 7(8) requires the Central Authority of the 
Requested Party to inform promptly the Central Authority of the 
Requesting Party of the outcome of the execution of the 
request. If the request is not executed, or if execution is 
delayed or postponed, the Central Authority of the Requested 
Party must inform the Central Authority of the Requesting Party 
of the reasons for non-execution, delay, or postponement.
    Article 8 apportions between the two Parties costs incurred 
in executing a request. It provides that the Requested Party 
pay all costs, except for the following items to be paid by the 
Requesting Party: fees of experts, costs of translation, 
interpretation, and transcription, and the allowances expense 
related to travel of persons pursuant to Articles 11 and 12. If 
it becomes apparent that the execution of the request requires 
expenses of an extraordinary nature, the Central Authorities of 
the Parties must consult to determine the terms and conditions 
under which legal assistance can be provided.
    Article 9 requires the Requesting Party to comply with any 
request by the Central Authority of the Requested Party not to 
use the results of the execution of a request obtained under 
the Treaty for purposes other than those described in the 
request without its prior consent. Nothing in the Article 
prevents the use or disclosure of the results of an executed 
request to the extent that there is an obligation to do so 
under the Constitution of the Requesting Party in a chemical 
prosecution. The Central Authority of the Requesting Party is 
obliged to notify the Central Authority of the Requested Party 
in advance of any such possible or proposed use or disclosure. 
Once the results of an executed request have been used for the 
purpose for which they were provided, and in the course of such 
use have been made public in the Requesting Party in accordance 
with the Treaty, no further limitations on use apply.
    Article 10 addresses the procedures for obtaining testimony 
and evidence in the Requested Party. Article 10(1) provides 
that a person requested to testify and produce documents, 
records, or items in the Requested Party be summoned, if 
necessary by subpoena or order, to appear and testify and 
produce such documents, records, or items, in accordance with 
the requirements of the law of the Requested Party. Article 
10(2) further states that, in accordance with procedures used 
in the Requested Party, persons present at the execution of a 
request must be permitted to pose questions directly or to 
formulate questions to be posed to the person being questioned, 
and to make a verbatim transcript of the proceeding using, if 
necessary, technical means. 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 Party, Article 10(3) provides that the evidence will still 
be taken and the claim made known to the Requesting Party for 
resolution by its authorities.
    Article 11 addresses the procedures for obtaining testimony 
in the Requesting Party. Article 11(1) provides a mechanism for 
the Requesting Party to invite the voluntary appearance in its 
territory of a person located in the Requested Party. As part 
of its invitation, the Requesting Party must indicate the 
extent to which the expenses and allowances will be paid. The 
Central Authority of the Requested Party is required to inform 
promptly the Central Authority of the Requesting Party of the 
response of the person. A person who agrees to appear may ask 
that the Requesting Party advance money to cover these 
expenses. This advance may be provided through the Embassy or a 
consulate of the Requesting Party. Article 11(2) provides that 
a person appearing in the Requesting Party pursuant to this 
Article will 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 Party. If this guarantee cannot be 
provided for any reason, the Central Authority of the 
Requesting Party is obligated to indicate this in the request 
to inform the invited person and to allow that person to decide 
whether to appear taking these circumstances into account.
    Under Article 11(3), any safe conduct provided for by this 
Article ceases seven days after the Central Authority of the 
Requesting Party has notified the Central Authority of the 
Requested Party that the person's presence is no longer 
required, or if the person has left the Requesting Party and 
has voluntarily returned to it. The Central Authority of the 
Requesting Party may, in its discretion, extend this safe 
conduct period up to fifteen days if it determines that there 
is good cause to do so.
    Article 12 provides that a person who is in the custody of 
either Party and whose presence in the other Party is sought 
for purposes of legal assistance under the Treaty will be 
transferred to that Party for that purpose if the person 
consents and the Central Authorities of both Parties agree. 
Under this article, for example, a witness incarcerated in the 
Requested Party could be transferred to the Requesting Party to 
have his deposition taken in the presence of the defendant or a 
defendant in the Requesting Party could be transferred to 
attend a witness deposition in the Requested Party.
    Article 12(2) further establishes both the express 
authority and the obligation of the receiving Party to maintain 
the person transferred in custody unless otherwise authorized 
by the sending Party. The return of the person transferred is 
to occur as soon as circumstances permit or as otherwise agreed 
by both Central Authorities, and the sending Party 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 Party for time 
served in the custody of the receiving Party. Where the 
sentence imposed expires, or where the sending Party advises 
the receiving Party that the transferred person is no longer 
required to be held in custody, the person is to be treated as 
a person invited pursuant to Article 11 or returned to the 
sending Party.
    Article 13 requires that, upon request, the Requested Party 
Provide the Requesting Party with copies of publicly available 
records, including documents or information of any nature and 
in any form that are in the possession of an executive, 
legislative, or judicial authority in the RequestedParty. The 
Requested Party may further provide copies of records, including 
documents or information of any nature and in any form that are in the 
possession of an executive, legislative, or judicial authority in that 
Party, but that are not publicly available, but only to the same extent 
and under the same conditions as these records would be available to 
the competent authorities of that Party. The Requested Party has the 
discretion to deny the latter type of request entirely or in part.
    Article 14 requires the Requested Party to use its best 
efforts to ascertain the location or identity of persons or 
information about items in the Requested Party specified in a 
request.
    Article 15 obligates the Requested Party to use its best 
efforts to effect service of documents pursuant to a request. A 
request for the service of a document requiring a person to 
appear in the Requesting Party 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 16 provides the conditions through which items can 
be located, seized and transferred. Article 16(1) obligates the 
Requested Party to execute requests for search, seizure, and 
transfer of any item to the Requesting Party if the request 
includes the information justifying such action under the laws 
of the Requested Party. Article 16(2) provides that, if 
requested, every official of the Requested Party who has 
custody of a seized item certify the identity of the item, the 
continuity of its custody, and the integrity of its condition. 
Article 16(3) further provides that the Requested Party may 
require that the Requesting Party agree to the terms and 
conditions deemed necessary to protect third-party interests in 
items to be transferred.
    Article 17 addresses the transfer of documents, records, 
and other items. When a request for legal assistance concerns 
the transfer of documents or records, Article 17(1) requires 
the Requested Party to transfer true copies of them, unless the 
Requesting Party expressly requests the originals, in which 
case the Requested Party must make every effort to comply with 
the request. Article 17(2) further provides that, insofar as 
not prohibited by its laws, the Requested Party is obligated to 
transfer documents, records, or other items in such a manner or 
accompanied by such certification as may be requested by the 
Requesting Party in order to make them admissible according to 
the law of the Requesting Party. For this purpose, the 
CentralAuthorities of the Parties will exchange information pursuant to 
Article 3(3) with respect to the requirements for admissibility in 
their respective legal systems. Documents, records, and other items 
transferred as requested under this paragraph require no further 
certification to make them admissible. Article 17(3) states that the 
Central Authority of the Requested Party may require the Central 
Authority of the Requesting Party to return, as soon as possible, any 
documents, records, or other items furnished to it in execution of a 
request under the Treaty.
    Article 18 obligates the Parties, in accordance with their 
laws, to assist each other in locating, immobilizing, and 
seizing proceeds, including earnings from, or that are the 
result of, criminal activities, as well as instrumentalities of 
crime, for purposes of forfeiture, restitution to victims of 
crime, and collection of fines imposed pursuant to judicial 
decisions in criminal matters. Article 18(2) provides that if 
the Central Authority of one Party becomes aware that proceeds 
and instrumentalities of crime that may be subject to 
forfeiture are located in the territory of the other Party, it 
may so inform the Central Authority of the other Party so that 
the other Party may take appropriate measures under Article 
18(3). The Central Authority receiving the information is 
obligated to notify the Central Authority providing the 
information of the action taken.
    Under Article 18(3), the Party that has immobilized, 
seized, or forfeited the proceeds and instrumentalities of 
crime is required to dispose of them in accordance with its 
laws. That Party shall transfer all or part of such forfeited 
assets, or the proceeds of their sale, to the other Party, 
including for the purpose of forefeiture and restitution, 
insofar as permitted by its laws and to the extent it deems it 
appropriate and within the time frame and under the conditions 
it deems acceptable.
    Article 19 provides that the Central Authorities will 
consult, at times mutually agreed, to promote the most 
effective use of the Treaty.
    Article 20 states that the Treaty applies to any requests 
presented after its entry into force even if the relevant acts 
or omissions occurred before that date.
    Article 21 provides that the provisions of the Treaty will 
not prevent either of the Parties from cooperating and granting 
legal assistance in accordance with the provisions of other 
applicableinternational treaties and agreements, national laws, 
and practices.
    Article 22 provides that the Treaty is subject to 
ratification and will enter into force upon the exchange of 
instruments of ratification, which is to take place as soon as 
possible. Article 22(2) provides further that, upon entry into 
force of the Treaty, the Agreement between the Government of 
the United States of America and the Government of the Russian 
Federation on Cooperation in Criminal Matters, signed on June 
30, 1995, will no longer be in force. Article 22(3) states that 
either Party may terminate the Treaty by written notice to the 
other Party through the diplomatic channel, and that such 
termination will take effect six months following the date of 
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.
                                                     Strobe Talbot.



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