[Senate Treaty Document 107-12]
[From the U.S. Government Publishing Office]
107th Congress Treaty Doc.
SENATE
2d Session 107-12
_______________________________________________________________________
TREATY WITH SWEDEN 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
KINGDOM OF SWEDEN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS,
SIGNED AT STOCKHOLM ON DECEMBER 17, 2001
July 15, 2002.--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
99-118 WASHINGTON : 2002
LETTER OF TRANSMITTAL
----------
The White House, July 15, 2002.
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 Kingdom of Sweden on Mutual Legal Assistance
in Criminal Matters, signed at Stockholm on December 17, 2001.
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. The
Treaty should be an effective tool to assist in the prosecution
of a wide variety of crimes, including terrorism, drug
trafficking, and fraud and other white-collar 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: locating or identifying persons or items; serving
documents; taking the testimony or statements of persons;
transferring persons in custody for testimony or other
purposes; providing documents, records, and items; executing
requests for searches and seizures; assisting in proceedings
related to immobilization and forfeiture of assets and
restitution; initiating criminal proceedings in the Requested
State; and any other form of assistance consistent with the
purposes of this Treaty and not prohibited by the laws of the
State from whom the assistance is requested.
I recommend that the Senate give early and favorable
consideration to the Treaty and give its advice and consent to
ratification.
George W. Bush.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, June 10, 2002.
The President,
The White House.
Mr. 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 Kingdom of Sweden on Mutual Legal Assistance
in Criminal Matters (``the Treaty''), signed at Stockholm on
December 17, 2001. 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 between the United States and 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 terrorism and drug-trafficking offenses, of
particular interest of the U.S. law enforcement community. It
will also help expand the coverage of our law enforcement
relationships across Europe. The Treaty is designed to be self-
executing and will not require implementing legislation.
Article 1 sets out the scope of assistance available under
the Treaty. Article 1(2) contains a non-exhaustive list of the
major types of assistance to be provided under the Treaty,
including locating or identifying persons or items; serving
documents; taking the testimony or statements of persons;
transferring persons in custody for testimony or other
purposes; providing documents, records and items; executing
requests for searches and seizures; assisting in proceedings
related to immobilization and forfeiture of assets and
restitution; initiating criminal proceedings in the Requested
State; and any other form of assistance consistent with
purposes of this Treaty and not prohibited by the laws of the
Requested State. The scope of the Treaty includes not only
assistance provided in connection with the investigation and
prosecution of offenses, but also in proceedings related to the
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 involved would constitute
an offense under the laws of the Requested State. However,
before executing a request that requires transfer of persons in
custody pursuant to Article 12, search and seizure pursuant to
Article 16, or assistance in forfeiture proceedings pursuant to
Article 18, the Requested State may require that the subject
offense by punishable under its pedal or administrative laws.
Article 1(4) states explicitly that the Treaty does not create
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 which, for the United States is the Attorney
General or a person designated by a Attorney General and for
Sweden is the Ministry of Justice. Article 2(3) provides that
the Central Authority shall make requests on behalf of
authorities that by law are responsible for investigations,
prosecutions, or proceedings related to criminal matters and
lists such authorities for each State. The Article also
provides that the Central Authorities are to communicate
directly with one another for purposes of the Treaty.
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: (a) it relates to an
offense under military law that would not be an offense under
ordinary criminal law; (b) it relates to a political offense (a
term the meaning of which is well-defined in the extradition
context and expected to the defined on that basis in connection
with mutual assistance); (c) it relates to an offense for which
the penalty in the Requesting State is deprivation of liberty
for a period of a year or less; (d) its execution would
prejudice the security or other essential interests (``ordre
public'') of the Requested State; or (e) it is not made in
conformity with the Treaty.
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 ofthe Requested State deems necessary. If the
Requesting State accepts assistance subject to such conditions, it must
comply with them. 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 written
requests under the Treaty, specifying in detail the information
required in each request. A request for assistance must be in
writing, except that a request may be accepted in another form
in urgent situations but would require written confirmation
within ten days unless the Central Authority of the Requested
State agrees otherwise. The request must be in the language of
the Requested State or accompanied by a translation into that
language unless agreed otherwise.
Article 5 concerns 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 must do
everything in their power to execute a request, and that the
courts of the Requested State have authority 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
and meet the costs of representation of the Requesting State in
the Requested State in any proceedings arising out of an
assistance request.
Article 5(3) provides that requests are to be executed in
accordance with the laws of the Requested State, except to the
extent the Treaty provides otherwise. 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, make
execution subject to conditions determined to be necessary. If
the Requesting State accepts assistance subject to such
conditions, it must comply with them.
Article 5 additionally requires the Requested State's
Central Authority to respond to reasonable inquiries concerning
progress toward executing a request; to promptly inform the
Requesting State's Central Authority of the outcome of its
execution; and, if the request cannot successfully be executed,
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 must pay all costs relating to the execution of a
request, except for the following items to be paid by the
Requesting State: fees of experts; costs of translation,
interpretation and transcription; and the allowances and
expenses related to travel of persons either in the Requested
State for the convenience of the Requesting State or pursuant
to Articles 11, 12 or 13. If, during the execution of a
request, it becomes apparent that complete execution will
entrail expenses of an extraordinary nature, the Central
Authorities must consult to determine the terms and conditions
under which execution may continue.
Under Article 7, the Requested State may make the execution
of a request dependent on the condition that, without the prior
consent of its Central Authority, the information or evidence
obtained will not be used or transmitted by the authorities of
the Requesting State for investigations or proceedings other
than those specified in the request. Article 7(2) provides that
nothing in the Article precludes the disclosure or use of
information or evidence in a criminal proceeding to the extent
that there is an obligation to do so under the constitution of
the Requesting State. The Requesting State must notify the
Requested State in advance of any such use or disclosure.
Information or evidence that has been made public in the
Requesting State in the normal course of the proceeding for
which it was provided or has been disclosed in accordance with
Article 7(2) may thereafter be used for any purpose.
Article 8 requires the Requested State, if so requested by
the Central Authority of the Requesting State, to use its best
efforts to keep confidential arequest and its contents. The
Central Authority of the Requested State must inform the Central
Authority of the Requesting State 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
Further, under Article 8(2), if the Requested State's
Central Authority requests that information or evidence
furnished under this Treaty be kept confidential or be
disclosed only subject to specified conditions, and the
Requesting State accepts the information or evidence subject to
such conditions, the Requesting State must use its best efforts
to comply with them.
Article 9 provides that a person in the Requested State
from whom evidence is requested pursuant to the Treaty must be
compelled, if necessary, to appear and be questioned or give
testimony or produce items, including, but not limited to,
documents, records, and articles of evidence. A person who
gives false testimony, or makes a false certification during
the execution of a request, is subject to prosecution and
punishment in the Requested State in accordance with the
criminal laws of that State. Upon request, the Central
Authority of the Requested State is required to furnish
information in advance about the date and place of the taking
of testimony or evidence pursuant to this Article.
Article 9(3) further requires the Requested State to permit
the presence of persons designated in the request (such as the
accused, counsel for the accused, or other interested persons)
during execution of the request and to allow them to question
or present questions to be posed to the person giving the
testimony or evidence. Pursuant to Article 9(4), a person
giving testimony or evidence may assert such claims of
immunity, incapacity or privilege as are available under the
laws of either State. If a person asserts such a claim under
the laws of the Requesting State, the Requested State must rely
on the representation of the Central Authority of the
Requesting State as evidence of the existence of the immunity,
incapacity, or privilege. Where the person's testimony or
evidence has been taken in the Requested State, that person may
reassert the claim for consideration by the judicial
authorities in the Requesting State.
Article 9(5) provides that the Requesting State may request
that items produced in the Requested State pursuant to Article
9 or Article 16, or that are the subject of testimony taken
pursuant to Article 9, be authenticated by an attestation and
also that the absence of such items be certified by an
attestation. Where such items are business records, the
attestation may be (a) by a certificate such as Form A or A-1
appended to the Treaty; (b) by a written summary of testimony
containing the essential information sought in Form A or A-1,
or (c) by a document containing the essential information
required by the Requesting State. Records so authenticated in
Sweden, or documentation so attesting to the absence of such
records, shall be admissible in evidence in the United States
as proof of the truth of the matters set forth therein.
Article 10 requires the Requested State to provide the
Requesting State with copies of publicly available records in
the possession of public authorities in the Requested State.
The Requested State may also provide copies of any records,
including documents or information in any form, in the
possession of public authorities in that State, but not
publicly available, to the same extent and under the same
conditions as such copies would be available to its own public
authorities. The Requested State has discretion to deny
requests for such non-public documents entirely or in part.
Article 10 also provides in paragraph 3 that the Requesting
State may request that official records produced in the
Requested State be authenticated in accordance with the
provisions of the Convention Abolishing the Requirement of
Legalization for Foreign Public Documents, dated 5 October
1961, or by an official charged with maintaining them through
the use of Form B appended to the Treaty. No further
authentication is necessary. The Requesting State may request
that the absence or nonexistence of such records be certified
by an attestation through the use of Form B-1 appended to the
Treaty. Records so authenticated in Sweden on Form B-1 are to
be admissible in evidence in the United States as proof of the
truth of the matters set forth therein.
Article 11 provides a mechanism for the Requesting State to
invite the voluntary appearance in its territory of a person
located in the Requested State. The request must indicate the
extent to which the invited person's expense will be
reimbursed. If the Requested State invites a person in that
State to appear before the appropriate authority in the
Requesting State, the Requested State's Central Authority must
promptly inform its counterpart in the Requesting State of the
person's response. Under Article 11(2), the Requesting State
may provide funds with respect to the invited person's expenses
in advance through its embassy in the Requested State.
Article 11(3) provides that an invited person who is not a
suspect or defendant may not be prosecuted, detained, or
subjected to any restriction of personal liberty in the
Requesting State by reason of acts or convictions that preceded
that person's departure from the Requested State. An invited
person who is a suspect or defendant may not be prosecuted,
detained, or subjected to any restriction of personal liberty
in the Requesting State by reason of acts or convictions that
preceded that person's departure from the Requested State that
are not specified in the request. For the United States, safe
conduct provided in this paragraph applies only to the extent
authorized by its Central Authority and may also extend to the
effects of service of process. Any safe conduct so authorized
by the Central Authority of the United States shall be
communicated to the Central Authority of Sweden. Under 11(4),
any safe conduct provided in this Article ceases ten days after
the person has been notified that the person's presence is no
longer required or when the person, having left the Requesting
State, voluntarily returns.
Article 12 provides that a person in the custody of either
State, whose presence for purposes of assistance under the
Treaty is sought, is to be transferred from the custody of one
State to that of the other provided that the person concerned
consents. In addition, where the presence of a person in the
custody of the Requested State is sought in the Requesting
State for purposes of assistance under the Treaty (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 to testify in a
trial), the consent of the person and Requested State is
required. Where a person in the custody of the Requesting State
is sought in the Requested State for purposes of assistance
under the Treaty (for example, a defendant in the Requesting
State may be transferred in order to attend a witness
deposition in the Requested State), the person and both States
must agree.
Article 12(3) 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 State. The receiving State must return the
transferred person to the custody of the sending State as soon
as circumstances permit unless otherwise agreed by both States,
and the receiving State is not to require the sending State to
initiate extradition or other proceedings for return of the
person transferred. The person transferred also receives credit
for service of the sentence imposed in the sending State for
time served in the custody of the receiving State.
A person transferred pursuant to Article 12 may not, while
in the receiving State, be prosecuted, detained, or subjected
to any restriction of personal liberty by reason of acts or
convictions that preceded his departure from the sending State
(other than as provided in Article 12(3)) or be required to
testify in proceedings not specified in the request. The safe
conduct provided in paragraph 4 ceases when a person released
in accordance with paragraph 3 voluntarily remains in the
receiving State more than 10 days after being notified that the
person's presence is no longer required or when the person,
having left the receiving State, voluntarily returns. Finally,
under Article 12(6), a person appearing in a trial in the
Requesting State under this Article may not be prosecuted in
that State on the basis of such testimony except for contempt
or perjury.
Article 13 provides that the Requested State may authorize
the transit through its territory of a person held in custody
by a third State whose personal appearance has been requested
by the Requesting State to give testimony or evidence or
otherwise provide assistance in criminal proceedings or other
proceedings related to criminal offenses. It further provides
that the Requested State has the authorityand the obligation to
keep the person in custody during transit.
Article 14 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items specified in a request.
Article 15 obligates the Requested State to use its best
efforts to effect service of any document relating, in whole or
in part, to any request for assistance under the Treaty. A
request for the service of a document requiring a person to
appear before an authority in the Requesting State must be
transmitted in a reasonable time and, with respect to a
defendant, no less than 30 days, before the scheduled
appearance. Proof of service is to be provided in the manner
specified in the request or acceptable under the provisions of
the Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters, done at
The Hague, November 15, 1965.
Article 16 obligates the Requested State 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.
The Requesting State may request that every official who has
custody of a seized item certify, through the use of Form C
appended to the Treaty, the identity of the item, the
continuity of the item's custody, and the integrity of its
condition. No further authentication is required and items so
certified in Sweden are to be admissible in evidence in the
United States. Article 16(3) further provides that the Central
Authority of the Requested State may require that the
Requesting State agree to terms and conditions deemed necessary
to protect third-party interests in the item to be transferred.
Article 17 provides that the Central Authority of the
Requested State may require its counterpart in the Requesting
State to return any items transferred to it in execution of a
request under this Treaty as soon as possible.
Article 18(1) provides that, if the Central Authority of
one State becomes aware of proceeds or instrumentalities of
offenses that are located in the territory of the other State
and may be forfeitable or otherwise subject to seizure under
the laws of that State, it may so inform the Central authority
of that other State. If that other State has jurisdiction, it
may present this information to its authorities for a
determination as to whether any action is appropriate. These
authorities are to issue their decision in accordance with the
laws of their country, and are required, through their Central
Authority, to report to the other State on the action taken.
Article 18 further obligates the States to assist each
other to the extent permitted by their respective laws in
proceedings and enforcement of judgments relating to the
forfeiture of proceeds and instrumentalities of offenses and
restitution to victims of crime. This may include identifying,
tracing and provisionally freezing, seizing, or otherwise
immobilizing proceeds or instrumentalities in support of such
proceedings or enforcement of judgments. Upon request, the
State that has instituted provisional measures is to secure, to
the extent permitted by its laws, an order authorizing the
transfer of the property concerned to the jurisdiction of the
Requesting State. Proceeds and instrumentalities forfeited to a
State pursuant to this Article are to be disposed of by that
State according to its laws. Either State may transfer to the
other State such property, the proceeds of its sale, or a
portion thereof to the other Party, to the extent permitted by
their respective laws, upon such terms as they deem
appropriate.
Article 19 authorizes either State to transmit, through the
respective Central Authorities, a request for the purpose of
initiating a criminal proceeding before the appropriate
authorities of the other State where both States have
jurisdiction to investigate or prosecute. The Requested State
must consider initiating an investigation or prosecution to the
extent appropriate under its laws, practices and procedures and
notify the Requesting State of any action taken on the request.
Article 20 provides that assistance and procedures provided
in the Treaty do not prevent either State from granting
assistance to the other State through the provisions of other
applicable international agreements or through the provisions
of its national laws. The States may also provideassistance
pursuant to any bilateral arrangement, agreement or practice that may
be applicable.
Article 21 provides that the Central Authorities must
consult, at times mutually agreed, to promote the most
effective use of the Treaty and may agree on such practical
measures as may be necessary to facilitate the Treaty's
implementation.
Article 22 provides that the Treaty is subject to
ratification, and is to enter into force on the first day of
the second month after the exchange of instruments of
ratification, which are to be exchanged as soon as possible. It
further provides that either State may terminate the Treaty by
written notice to the other State, termination to take effect
one year after the date upon which the other State received
notice through the diplomatic channel.
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 State and Justice 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,
Colin L. Powell.