[Senate Treaty Document 106-35]
[From the U.S. Government Publishing Office]
106th Congress Treaty Doc.
SENATE
2d Session 106-35
_______________________________________________________________________
TREATY WITH CYPRUS 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 REPUBLIC OF CYPRUS ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS, SIGNED AT NICOSIA ON DECEMBER 20, 1999
July 13, 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 (STAR PRINT) WASHINGTON : 2000
LETTER OF TRANSMITTAL
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The White House, July 13, 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 Republic of Cyprus on Mutual Legal Assistance
in Criminal Matters, signed at Nicosia on December 20, 1999. I
transmit also, for the information of the Senate, the report of
the Department of State with respect to the Treaty.
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. Together
with the Extradition Treaty Between the Government of the
United States of America and the Government of the Republic of
Cyprus, which entered into force September 14, 1999, this
Treaty will, upon entry into force, provide an effective tool
to assist in the prosecution of a wide variety of offenses,
including organized crime, terrorism, drug-trafficking
offenses, and other violent crimes as well as money laundering
and other white collar crimes of particular interest to the
U.S. law enforcement community. 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 other items; locating or
identifying persons or items; serving documents; transferring
persons in custody for testimony or other purposes; executing
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.
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, June 15, 2000.
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 Cyprus on Mutual Legal Assistance in Criminal
Matters (the ``Treaty''), signed at Nicosia on December 20,
1999. I recommend that the Treaty be transmitted to the Senate
for its advice and consent to ratification.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, similar bilateral treaties have
entered into force with a number of other 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 organized crime,
terrorism, drug trafficking, and other violent crimes as well
as money laundering and other forms of white collar crime,
offenses of particular interest to the U.S. law enforcement
community. The Treaty is designed to be self-executing and will
not require new legislation.
Article 1 sets out the scope of assistance available under
the Treaty. Article 1(2) includes 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 other items; locating or
identifying persons or items; serving documents; transferring
persons in custody for testimony or other purposes; executing
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 assistance provided in connection with
the investigation, prosecution, and prevention of offenses, but
also in proceedings related to criminal matters, which may be
civil or administrative in nature.
Article 1(3) states that assistance shall be provided
without regard to whether the conduct that is the subject of
the investigation, prosecution or proceeding in the Requesting
State would constitute an offense under the laws of the
Requested State.
Article 1(4) states explicitly that the Treaty is intended
solely for mutual legal assistance between the Parties and does
not give rise to a right on the part of any private person 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 Cyprus, the Central Authority is the Attorney
General or a person designated by the Attorney General. For
Cyprus, the Central Authority is the Minister of Justice and
Public Order or a person designated by the Minister. The
article also provides that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. In cases of urgency, the Treaty provides that the
Central Authorities may transmit requests through Interpol.
Article 3 sets forth the circumstances under which a
Requested State's Central Authority may deny assistance under
the Treaty. A request may be denied if it relates to a
political offense (a term expected to be defined on the basis
of the term's usage in extradition treaties) or an offense
under military law that would not be a offense under ordinary
criminal law or if it is not made in conformity with the
Treaty. In addition, a request may be denied if its execution
would prejudice the security or similar essential interests of
the Requested State or if it would violate the Constitution of
the Requested State or the obligations of the Requested State
under any international multilateral treaty relating to human
rights.
Before denying assistance under Article 3, 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 Requesting State accepts assistance subject to such
conditions, it is required to comply with them. If the Central
Authority of the Requested State denies assistance, it is
required to inform the Central Authority of the Requesting
State of the reasons for the denial.
Article 4 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 State agrees otherwise. The request is to be in
the language of the Requesting State accompanied by a
translation in the language of the Requested State unless
otherwise agreed.
Article 5 concerns the execution of requests. Article 5(1)
requires the Central Authority of the Requested State to
execute the request promptly or, when appropriate, to transmit
it to the authority having jurisdiction to do so. It provides
that the competent authorities of the Requested State shall do
everything in their power to execute a request, and that the
competent judicial and other authorities of the Requested State
shall have power to issue subpoenas, search warrants, or other
orders necessary to execute the request. Under Article 5(2),
the Central Authority of the Requested State must make all
necessary arrangements for representation of the Requesting
State in the execution of a request for assistance in the
Requested State.
Under Article 5(3), requests are to be executed in
accordance with the internal laws and procedures of the
Requested State except to the extent that the Treaty provides
otherwise. Procedures specified in the request are to be
followed except to the extent that they cannot lawfully be
followed in 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 make
execution subject to conditions determined to be necessary
after consultations with the Central Authority of the
Requesting State. 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 Central Authority
of the Requesting State if the request cannot be executed
without breaching 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) and (7) additionally require the Requested
State's Central Authority to respond to reasonable inquiries
concerning progress toward executing a request; to inform the
Requesting State's Central Authority promptly of the outcome of
its execution; and, if execution is denied, delayed or
postponed, to inform the Requesting State's Central Authority
of the reasons therefor.
Article 6 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State shall pay all costs, including costs of representation,
except for the following items to be paid by the Requesting
State: fees of experts; costs of translation, interpretation
and transcription; and allowances and expenses related to
travel of persons pursuant to Articles 10 and 11. If, during
the execution of a request, it becomes apparent that
fulfillment of the request will entail expenses of an
extraordinary nature, the Central Authorities must consult to
determine the terms and conditions under which execution may
continue.
Article 7 requires the Requesting State to comply with any
request by the Central Authority of the Requested State that
any information or evidence obtained under the Treaty not be
used in any investigation, prosecution, or proceeding other
than that described in the request without the prior consent of
the Central Authority of the Requested State. Further, if the
Requested State's Central Authority requests that information
or evidence furnished under this Treaty be kept confidential or
be used in accordance with specified conditions, and the
Requesting State accepts the information or evidence subject to
such conditions, it must use its best efforts to comply with
them.
Article 7(3) provides that nothing in Article 7 precludes
the use or disclosure of information to the extent that there
is an obligation to do so under the Constitution of the
Requesting State in a criminal prosecution. The requesting
State is obliged to notify the Requested State in advance of
any such use or disclosure. Finally, Article 7 provides that
once information or evidence is made public in the Requesting
State in a manner consistent with these provisions, it may
thereafter be used for any purpose.
Article 8 describes the procedures for obtaining testimony
or evidence in the Requested State. 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 and records and articles of evidence.
Article 8(2) 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 (such as the
accused, counsel for the accused, or other interested persons)
and to permit them to question the person giving the testimony
or evidence. 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 Requested State,
the claim is to be resolved in accordance with the laws of the
Requested State. However, if a claim of immunity, incapacity,
or privilege is made under the laws of the Requested 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 of evidence in
the Requesting State, Article 8(5) provides a mechanism for
authenticating evidence that is produced pursuant to this
article or that is the subject of testimony taken in the
Requested State, using Form A appended to the Treaty, as well
as certifications of the absence or nonexistence of such
evidence using Form B.
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. Under Article 9(2), the Requested State may
also provide copies of any documents, records, or information
that are in the possession of a government department or agency
in that State, but which are not publicly available, to the
same extent and under the same conditions as it would provide
them to its own law enforcement or judicial authorities. The
requested State has 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 such official records where
the official in charge of maintaining them authenticates the
records through the use of Form C appended to the Treaty.
Certification on Form D of the absence or nonexistence of such
records by an official responsible for maintaining similar
records shall also be admissible.
Article 10 provides a mechanism for the Requesting State to
invite the voluntary appearance outside the Requested State of
a person located in the Requested State, indicating the extent
to which the expenses will be paid. The Requested State is to
inform the Central Authority of the Requesting State promptly
of the person's response. Article 10(3) 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 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 State. Under
Article 10(4), any safe conduct provided for by this Article
ceases seven days after the Central Authority of the Requesting
State has notified the Central Authority of the Requested State
that the person's presence is no longer required, or the
person, having left the Requesting State, voluntarily returns.
The Central Authority of the Requesting State may, in its
discretion, 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 in the custody of either
State, whose presence for purposes of assistance under the
Treaty is sought, may be transferred from the custody of one
State to the custody of the other State provided that the
person concerned consents and both Central Authorities agree.
For example, a witness incarcerated in the Requested State may
be transferred to the Requesting State to have his deposition
taken in the presence of the defendant, or a defendant in the
Requesting State may be transferred for purposes of attending a
witness deposition in the Requested State. Article 11(3)
further establishes both the express authority and the
obligation of the receiving State to keep the person
transferred in custody unless otherwise authorized by the
sending State; to return the person transferred to the custody
of the sending State as soon as circumstances permit or as
otherwise agreed by both Central Authorities; and not to
require the sending State to initiate extradition or any other
proceedings for return of the person transferred. Article 11(3)
also provides that the person transferred receives credit for
time served in the custody of the receiving State. Where the
receiving State is a third State, the Requesting State must
make all arrangements necessary to meet the requirements of
this paragraph.
Article 12 provides that the Requested State may, subject
to any constitutional limitations, authorize the transit
through its territory of a person held in custody by the
Requesting State or a third State whose appearance has been
requested by the Requesting State in an investigation,
prosecution or proceeding. It also establishes the authority
and obligation of the Requested State to keep the person in
custody during transit.
Article 13 obligates the Requested State to use its best
efforts to ascertain the location or identity in the Requested
State of persons or items specified in a request.
Article 14 obligates the Requested State to use its best
efforts to effect service of any document relating, in whole or
in part, to a request for assistance made by the Requesting
State under the Treaty. A request for the service of a document
requring a person to appear before an authority in the
Requesting State must be transmitted a reasonable time before
the scheduledd appearance. Proof of service is to be provided
by the Requested State in the manner specified in the request.
Article 15 obligates the Requested State, to the extent
permitted by its law, to execute requests for search, seizure,
and transfer 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, every
official who has custody of a seized item must certify, through
use of Form E appended to the Treaty, the identity of the item,
the continuity of custody, and any changes in condition. No
further certification is required and the Form will be
admissible in evidence in the Requesting State. The article
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 16 provides that the Central Authority of the
Requested State may require its counterpart in the Requesting
State to return any items furnished to it in execution of a
request under the Treaty as soon as possible.
Article 17 provides that, if the Central Authority of one
Party becomes aware of proceeds or instrumentalities of
offenses that are located in the other Party and may be
forfeitable or otherwise subject to seizure, it may so inform
the Central Authority of the other Party. If the Party
receiving such information has jurisdiction in this regard, it
may present this information to its authorities for a
determination whether any action is appropriate and in
accordance with the laws of their country. The Central
Authority of the Party receiving such information is required
to inform the Central Authority of the Party that provided the
information of any action taken. Article 17 also obligates the
Parties to assist each other to the extent permitted by their
respective laws in proceedings relating to forfeiture of the
proceeds and instrumentalities of offenses, restitution to the
victims of crime, and the collection of fines imposed as
sentences in criminal prosecutions. Article 17(3) obligates the
Party having custody over proceeds or instrumentalities of
offenses to dispose of them in accordance with its laws. Either
Party may transfer to the other Party all or part of such
assets, or the proceeds of their sale, to the extent not
prohibited by the transferring Party's laws and upon such terms
as it deems appropriate.
Article 18 states that assistance and procedures provided
in the Treaty shall not prevent either Party from granting
assistance to the other Party through the provisions of other
applicable international agreements or through the provisions
of its national laws. The Parties may also provide assistance
pursuant to any bilateral arrangement, agreement or practice
that may be applicable.
Article 19 provides that the Central Authorities shall
consult, at times mutually agreed, to promote the most
effective use of the Treaty, and that they may agree upon such
practical measures as may be necessary to facilitate the
Treaty's implementation. Article 19 further provides that any
dispute arising out of the interpretation, application or
implementation of the Treaty is to be resolved by the Central
Authorities, or failing their agreement, through diplomatic
channels.
Article 20 provides that the Treaty shall be subject to
ratification and shall enter into force upon exchange of
instruments of ratification, which shall be exchanged as soon
as possible. It further provides that the Treaty shall apply to
any request presented after the date of the Treaty's entry into
force whether the relevant acts or omissions occurred prior to
or after that date. Either Party may terminate the Treaty by
written notice to the other Party, termination to take effect
six months following the date of receipt of the 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,
Madeline Albright.