[Senate Treaty Document 107-9]
[From the U.S. Government Publishing Office]



107th Congress                                              Treaty Doc.
                                  SENATE                     
 2d Session                                                       107-9
_______________________________________________________________________

                                     



 
  TREATY WITH IRELAND 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 IRELAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, 
  SIGNED AT WASHINGTON ON JANUARY 18, 2001




 July 11, 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 11, 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 Agreement 
between the Government of the United States of America and the 
Government of Ireland on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on January 18, 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, 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: taking the testimony or statements of persons; 
providing documents, records, and articles of evidence; 
locating or identifying persons; serving documents; 
transferring persons in custody for testimony or other 
purposes; executing requests for searches and seizures; 
identifying, tracing, freezing, seizing, and forfeiting the 
proceeds and instrumentalities of crime and assistance in 
related proceedings; and such other assistance as may be 
agreed.
    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 TRANSMITTAL

                              ----------                              

                                       Department of State,
                                          Washington, June 7, 2002.
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 Ireland on Mutual Legal Assistance in Criminal 
Matters (``the Treaty''), signed at Washington on January 18, 
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.
    The Treaty with the Government of Ireland contains all 
essential provisions sought by the United States, and will 
enhance our ability to investigate and prosecute a variety of 
offenses, including terrorism, violent crimes, drug 
trafficking, and fraud and other white-collar crimes. 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 new legislation. Article 1 sets 
forth a non-exhaustive list of the major types of assistance to 
be provided under theTreaty, including taking the testimony or 
statements of persons; providing documents, records and articles of 
evidence; locating or identifying persons; serving documents; 
transferring persons in custody for testimony or other purposes; 
executing requests for searches and seizures; identifying, tracing, 
freezing, seizing, and forfeiting the proceeds and instrumentalities of 
crime and assistance in related proceedings; and such other assistance 
as may be agreed between the two Central Authorities. The scope of the 
Treaty includes not only investigation, prosecution and prevention of 
criminal offenses, but also proceedings related to criminal matters, 
which may be civil or administrative in nature.
    Article 1(3) states that, except when required by the laws 
of the Requested Party, assistance shall be provided without 
regard to whether the conduct involved would constitute an 
offense under the laws of the Requested Party. The exception is 
intended only to recognize that Irish law requires a different 
method to execute a request on the rare occasions when dual 
criminality does not exist, i.e. the offense is not punishable 
in both jurisdictions.
    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 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 Ireland, the Central Authority is the Minister for 
Justice, Equality and Law Reform or a person designated by the 
Minister. The article provides that the Central Authorities 
shall communicate directly with one another for the purposes of 
the Treaty.
    Article 3 sets forth the circumstances under which a 
Requested Party's Central Authority may deny assistance under 
the Treaty. A request may be denied if the Requested Party is 
of the opinion that the request, if granted, would impair its 
sovereignty, security or other essential interests, or would be 
contrary to important public policy; or if the request relates 
to an offender who, if proceeded against the law of the 
Requested Party for the offense for which assistance is 
requested, would be entitled to be discharged on the grounds of 
a previous acquittal or conviction. A request may also be 
denied if it is not made in conformity with the Treaty or 
relates to an offense that is regarded by the Central Authority 
of the Requested Party as an offense of a political character 
(a term the meaning of which is well-defined in the extradition 
context and expected to be defined on that basis in connection 
with mutual assistance) or as an offense under its military law 
that is not also an offense under its ordinary criminal law..
    Before denying assistance under Article 3, the Central 
Authority of the Requested Party is required to consult with 
its counterpart in the Requesting Party to consider whether 
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 these 
conditions, it must comply with them.
    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 emergency situations but would require written confirmation 
within ten days thereafter unless the Central Authority of the 
Requested Party agrees otherwise.
    Article 5 concerns execution of requests. Article 5(1) 
requires the Central Authority of the Requested Party to take 
whatever steps it deems necessary to execute requests promptly, 
as empowered by the Treaty or national law, or in accordance 
with national practice. It provides that Courts of the 
Requested Party shall have the authority to issue subpoenas, 
search warrants, or other orders necessary to execute the 
request. Pursuant to Article 5(2), the Central Authority of the 
Requested Party must make all necessary arrangements for 
representation in its territory of the Requesting Party in any 
proceedings arising out of an assistance request.
    Under Article 5(3), the method of execution specified in 
the request shall be followed except to the extent that it is 
incompatible with the laws and practices of the Requested 
Party.Under Article 5(4), if the Central Authority of the 
Requested Party determines that execution of the request would 
interfere with an ongoing criminal investigation, prosecution, or 
proceeding under the laws of that Party, or prejudice the safety of any 
person, it may postpone execution or make execution subject to 
conditions determined to be necessary after consultations with the 
Central Authority of the Requesting Party. If the Requesting Party 
accepts assistance subject to conditions, it must comply with them.
    Article 5(5) requires the Central Authority of the 
Requested Party to facilitate the presence in the execution of 
the request of persons specified in it, in accordance with its 
national law and practice. Article 5(6) further requires the 
Requested Party, upon request, to keep confidential any 
information which might indicate that a request has been made 
or responded to and to inform the Requesting Party if the 
request cannot be executed without breaching confidentiality so 
that the Requesting party can determine the extent to which it 
wishes the request to be executed.
    This article also requires the Requested Party's Central 
Authority to respond to reasonable inquiries by the Requesting 
Party's Central Authority concerning progress toward execution 
of a particular request and to inform the latter of any 
circumstances that are likely to cause a significant delay in 
responding to the request, the outcome of a request's 
execution, and the basis for the denial of any request. The 
article authorizes the Central Authority of the Requested Party 
to ask the Requesting Party's Central Authority to provide 
information to enable execution of the request or the 
undertaking of any steps necessary under its laws and practices 
to give effect to the request and requires the Central 
Authority of the Requesting Party to promptly inform the 
Requested Party's Central Authority of any circumstances that 
make it inappropriate to proceed with the execution of the 
request or which require modification of the action requested.
    Article 6 apportions between the two States the costs 
incurred in executing a request. It provides that the Requested 
Party must pay all costs relating to the execution of a 
request, including the costs of representation, except for the 
following items to be paid by the Requesting Party: fees of 
expert witnesses; 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 complete 
execution will entail expenses of an extraordinary nature, the 
Central Authorities are to consult to determine the terms and 
conditions under which execution may continue.
    Article 7 requires the Requesting Party not to use or 
disclose information or evidence obtained under the Treaty for 
any purposes other than those stated in the request without the 
prior consent of the Requested Party. Article 7(2), however, 
states that nothing in the Article shall preclude the use or 
disclosure of information to the extent that there is an 
obligation to do so under the Constitution of the Requesting 
Party in a criminal prosecution. The Requesting Party is 
required to notify the Requested Party in advance of any such 
proposed disclosure.
    Article 8 provides that a person in the Requested Party 
from whom testimony or evidence is requested may be compelled, 
if necessary, to appear and testify or produce items, including 
documents, records and articles of evidence. The Central 
Authority of the Requested Party must, upon request, 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 Party in 
accordance with its laws and practice to permit the presence of 
persons specified in the request (such as the accused, counsel 
for the accused, or other interested persons) during the 
execution of the request and to allow them to question the 
person giving the testimony or evidence, either directly or 
through a legal representative qualified to appear before the 
courts of the Requested Party. 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 8(4) provides that the testimony or 
evidence shall be taken and theclaim made known to the Central 
Authority of the Requesting Party for resolution by the authorities of 
that Party. Finally, in order to ensure admissibility in evidence in 
the Requesting Party, Article 8(5) provides a mechanism for 
authenticating evidence that is produced pursuant to or that is the 
subject of testimony taken under this Article (or certifying the 
absence or nonexistence of such evidence) through the use of Forms A 
and B appended to the Treaty or pursuant to such other form or manner 
as may be prescribed from time to time by either Central Authority.
    Article 9 requires the Requested Party to provide the 
Requesting Party with copies of publicly available records in 
the possession of government departments and agencies in the 
Requested Party. The Requested Party may also provide copies of 
any documents, records or information in the possession of a 
government department or agency, but not publicly available, to 
the same extent and under the same conditions as such copies 
would be available to its own law enforcement or judicial 
authorities. The Requested Party has the discretion to deny 
requests for such non-public documents, entirely or in part. 
Article 9 also provides that no further authentication shall be 
necessary for admissibility into evidence in the Requesting 
Party of official records provided pursuant to this Article if, 
upon request, the records are authenticated under the 
provisions of the Convention Abolishing the Requirement of 
Legalization for Foreign Public Documents, or by an official 
competent to do so through the use of Form C appended to the 
Treaty, or pursuant to such other form or manner as may be 
prescribed from time to time by either Central Authority. The 
absence or nonexistence of such records is, upon request, to be 
certified by the use of Form D, which must also be admissible 
in evidence in the Requesting Party.
    Article 10(1) provides a mechanism for the Requesting Party 
to invite the voluntary appearance in its territory of a person 
located in the Requested Party. The Requesting Party must 
indicate the extent to which the expenses will be paid. Article 
10(2) provides that the Central Authority of the Requesting 
Party has the discretion to determine that a person appearing 
in the Requesting Party 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 Party. Under Article 10(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 voluntarily returns to it. The Requesting Party's 
Central Authority has the discretion to extend the period for 
up to fifteen days for good cause.
    Article 11 provides for temporary transfer of a person in 
custody in one Party to the other Party for purposes of 
assistance under the Treaty, on the condition that the person 
in question and the Central Authorities of both parties 
consent. Under this Article, for example, a witness 
incarcerated in the Requested Party may be transferred to the 
Requesting Party to have his deposition taken in the presence 
of the defendant or a defendant in the Requesting Party may be 
transferred for purposes of attending a witness deposition in 
the Requested Party. Article 11(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 person transferred must be 
returned to the custody of the sending Party as soon as 
circumstances permit and in any event no later than the date 
upon which the person would have been released from custody in 
the territory of the sending Party, unless otherwise agreed by 
the Central Authorities and the person transferred. The 
receiving Party may not require the sending Party to initiate 
extradition proceedings for return of the person transferred. 
The person transferred also receives credit for time served in 
the custody of the receiving Party.
    Article 12 requires the Requested Party to use its best 
efforts to ascertain the location or identity of persons or 
items specified in the request.
    Article 13 obligates the Requested Party 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. 
Article 13(2) states that service under this Article shall not 
impose any obligation under the law of the Requested Party to 
comply withit. A request for 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 14 obligates the Requested Party to execute 
requests for search, seizure, and delivery of any item to the 
Requesting Party if the request includes the information 
justifying such action under the laws of the Requested Party 
and it is carried out in accordance with the laws of that 
Party. Although dual criminality for exercise of requests is 
not generally provided for in the Treaty, Article 14(2) states 
that the request may be refused if it relates to conduct in 
respect of which powers of search and seizure would not be 
exercisable in the territory of the Requested Party in similar 
circumstances. This recognizes that Irish law will require a 
different method to execute a request on the rare occasion that 
dual criminality does not exist. The Article requires, upon 
request, that every official who has custody of a seized item 
must certify, through the use of Form E appended to the Treaty, 
the continuity of custody, the identify of the item, and the 
integrity of its condition. No further certification is to be 
required and the certificate must be admissible in evidence in 
the Requesting Party. Certification may also be provided in any 
other form or manner as may be prescribed from time to time by 
either Central Authority. Article 14(4) further provides that 
the Central Authority of the Requested Party may impose upon 
the Requesting Party terms and conditions deemed necessary to 
protect third party interests in the item to be transferred.
    Article 15 requires Central Authority of the Requesting 
Party to return items, including documents, records, or 
articles of evidence furnished to it in the execution of a 
request as soon as possible unless the Central Authority of the 
Requested Party waives their return.
    Article 16(1) provides that, if the Central Authority of 
one Contracting Party becomes aware that proceeds or 
instrumentalities of offenses that may be forfeitable or 
otherwise subject to seizure are located in the other 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 in accordance with the laws 
of that country. The Central Authority of the Party receiving 
such information is required to inform the Central Authority 
that provided the information of any action taken.
    Article 16(2) obligates the Parties to assist each other to 
the extent permitted by their respective laws in proceedings 
relating to the forfeiture of the proceeds and 
instrumentalities of offenses, which may include action to 
temporarily freeze proceeds and instrumentalities pending 
further proceedings. Under Article 16(3), the Party having 
custody over proceeds or instrumentalities of offenses is 
required to dispose of them in accordance with its laws. Either 
Party may share all or part of such assets, or the proceeds of 
their sale, with the other Party, to the extent permitted by 
the transferring Party's laws and upon such terms as it deems 
appropriate.
    Article 17 provides that assistance and procedures provided 
in the Treaty do 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 18 provides that the Central Authorities must 
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 is subject to 
ratification and the instruments of ratification are to be 
exchanged as soon as possible, whereupon the Treaty enters into 
force. Article 19(3) provides that the Treaty applies to 
requests presented after the date of its entry into force, 
whether the relevant acts or omissions occurred prior to or 
after that date. Article 19(4) further provides that either 
Party may terminate the Treaty by written notice to the other 
Party, termination to take effect six months after the date of 
notification. Ongoing proceedings at the time of termination 
must nonetheless be completed in accordance with the provisions 
of the Treaty.
    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,
                                                   Colin L. Powell.


                                  
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