[Senate Executive Report 104-24]
[From the U.S. Government Publishing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-24
_______________________________________________________________________


 
   TREATY WITH AUSTRIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                                _______
                                

                 July 30, 1996.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

                   [To accompany Treaty Doc. 104-21]

    The Committee on Foreign Relations to which was referred 
The Treaty Between the Government of the United States of 
America and the Government of the Republic of Austria on Mutual 
Legal Assistance in Criminal Matters, signed at Vienna on 
February 23, 1995, having considered the same, reports 
favorably thereon with two provisos and recommends that the 
Senate give its advice and consent to the ratification thereof 
as set forth in this report and the accompanying resolution of 
ratification.

                               I. Purpose

    Mutual Legal Assistance Treaties (MLATs) provide for the 
sharing of information and evidence related to criminal 
investigations and prosecutions, including drug trafficking and 
narcotics-related money laundering. Both parties are obligated 
to assist in the investigation, prosecution and suppression of 
offenses in all forms of proceedings (criminal, civil or 
administrative). Absent a treaty or executive agreement, the 
customary method of formally requesting assistance has been 
through letters rogatory.

                             II. Background

    On February 23, 1995, the United States signed a treaty 
with Austria on mutual assistance in criminal matters and the 
President transmitted the Treaty to the Senate for advice and 
consent to ratification on September 6, 1995. In recent years, 
the United States has signed similar MLATs with many other 
countries as part of an effort to modernize the legal tools 
available to law enforcement authorities in need of foreign 
evidence for use in criminal cases.
    State historically have been reluctant to become involved 
in the enforcement of foreign penal law.\1\ This reluctance 
extended to assisting foreign investigations and prosecutions 
through compelling testimony or the production of documents. 
Even now, the shared interest in facilitating the prosecution 
of transnational crime is viewed as being outweighed at times 
by unwillingness to provide information to those with different 
standards of criminality and professional conduct.
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    \1\ E.g., Restatement (third) of the Foreign Relations Law of the 
United States Part IV, ch. 7, subch. A. Introductory Note and Sec. 483, 
Reporters' Note 2 (1987); Ellis & Pisani, ``The United States Treaties 
on Mutual Assistance in Criminal Matters: A Comparative Analysis,'' 19 
Int. Lawyer 189, 191-198 (discussing history of U.S. reluctance and 
evolution of cooperation) [hereinafter cited as Ellis & Pisani].
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    Despite these hindrances, the need to obtain the 
cooperation of foreign authorities is frequently critical to 
effective criminal prosecution. Documents and other evidence of 
crime often are located abroad. It is necessary to be able to 
obtain materials and statements in a form that comports with 
U.S. legal standards, even though these standards may not 
comport with local practice. Also, assisting prosecutors for 
trial is only part of how foreign authorities may assist the 
enforcement process. Detecting and investigating transnational 
crime require access to foreign financial records and similar 
materials, while identifying the fruits of crime abroad and 
having them forfeited may deter future criminal activity. It is 
necessary to have the timely and discrete assistance of local 
authorities.
    Still, it was not until the 1960s that judicial assistance 
by means of letters rogatory--requests issuing from one court 
to another to assist in the administration of justice \2\--were 
approved. Even then, the ability of foreign authorities to use 
letters rogatory to obtain U.S. assistance was not established 
firmly, in case law until 1975.\3\ By this time, the United 
States had negotiated and signed a mutual legal assistance 
treaty with Switzerland, the first U.S. treaty of its kind. 
This treaty was ratified by both countries in 1976 and entered 
into force in January 1977. Since then, the United States has 
negotiated more than 20 additional bilateral MLATs, 14 of which 
are in force.\4\
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    \2\ See In re Letter Rogatory from the Justice Court, District of 
Montreal Canada, 523 F. 2d 562, 564-565 (6th Cir. 1975).
    \3\ Id. at 565-566.
    \4\ According to the August 4, 1995, Letters of Submittal 
accompanying the MLATs with Austria and Hungary, the United States has 
bilateral MLATs in force with Argentina, The Bahamas, Canada, Italy, 
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland, 
Thailand, Turkey, the United Kingdom concerning the Cayman Islands, and 
Urugay. MLATs not in force but ratified by the United States include 
those with Belgium, Columbia, and Panama. Signed but unratified MLATs 
include the five addressed in this report--those with Austria, Hungary, 
the Republic of Korea, the Philippines, and the United Kingdom--and one 
with Nigeria. Treaty Doc. 102-21, 104th Cong., 1st Sess. v (1992).
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    Absent a treaty or executive agreement, the customary 
method of formally requesting assistance has been through 
letters rogatory. The Deputy Assistant Attorney General of the 
Criminal Division has summarized the advantages of MLATs over 
letters rogatory to the House Foreign Affairs Committee as 
follows:

          An MLAT or executive agreement replaces the use of 
        letters rogatory. * * * However, treaties and executive 
        agreements provide, from our perspective, a much more 
        effective means of obtaining evidence. First, an MLAT 
        obligates each country to provide evidence and other 
        forms of assistance needed in criminal cases. Letters 
        rogatory, on the other hand, are executed solely as a 
        matter of comity. Second, an MLAT, either by itself or 
        in conjunction with domestic implementing legislation, 
        can provide a means of overcoming bank and business 
        secrecy laws that have in the past so often frustrated 
        the effective investigation of large-scale narcotics 
        trafficking operations. Third, in an MLAT we have the 
        opportunity to include procedures that will permit us 
        to obtain evidence in a form that will be admissible in 
        our courts. Fourth, our MLATs are structured to 
        streamline and make more effective the process of 
        obtaining evidence.\5\
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    \5\ ``Worldwide Review of Status of U.S. Extradition Treaties and 
Mutual Legal Assistance Treaties: Hearings Before the House Committee 
on Foreign Affairs,'' 100th Cong., 1st Sess. 36-37 (1987) (statement of 
Mark M. Richard, Deputy Assistant Attorney General, Criminal Division).

    Letters rogatory and MLATs are not the only means that have 
been used to obtain assistance abroad.\6\ The United States at 
times has concluded executive agreements as a formal means of 
obtaining limited assistance to investigate specified types of 
crimes (e.g., drug trafficking) or a particular criminal scheme 
(e.g., the Lockheed investigations).\7\ A separate. formal 
means of obtaining evidence has been through the subpoena 
power. Subpoenas potentially may be served on a citizen or 
permanent resident of the United States abroad or on a domestic 
U.S. branch of a business whose branches abroad posses the 
desired information.\8\
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    \6\ U.S. Dept. of Justice, United States Attorneys' Manual 
Sec. Sec. 9-13.520 et seq. (October 1, 1988).
    \7\ Id. at Sec. 9-13.523.
    \8\ Id at Sec. 9-13.525.
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    Additionally, the Office of International Affairs of the 
Criminal Division of the Department of Justice notes several 
informal means of obtaining assistance that have been used by 
law enforcement authorities in particular circumstances. These 
have included informal police-to-police requests (often 
accomplished through law enforcement personnel at our 
emphassies abroad), requests through interpol, request for 
readily available documents through diplomatic channels, and 
taking depositions of voluntary witnesses. Informal means also 
have included ``[p]ersuading the authorities in the other 
country to open `joint' investigations whereby the needed 
evidence is obtained by their authorities and then shared with 
us.'' The Justice Department also has made ``treaty type 
requests that, even though no treaty is in force, the 
authorities in the requested country have indicated the will 
accept and execute. In some countries (e.g., Japan and Germany) 
the acceptance of such request is governed by domestic law; in 
others, by custom or precedent.'' \9\
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    \9\ Id at Sec. 9-13.524.
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    Like letters rogatory, executive agreements, subpoenas, and 
informal assistance also have their limitations compared to 
MLATs. Executive agreements have been restricted in scope and 
application. Foreign governments have strongly objected to 
obtaining records from within their territories through the 
subpoena power.\10\ There is not assurance that informal means 
will be available or that information received through them 
will be admissible in court.
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    \10\ Id. at Sec. 9-524.
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                              III. Summary

                               A. General

    Mutual legal assistance treaties generally impose 
reciprocal obligations on parties to cooperate both in the 
investigation and the prosecution of crime. Most, but no all. 
MLATs have covered a broad range of crimes with not requirement 
that a request for assistance relate to activity that would be 
criminal in the requested State. The means of obtaining 
evidence and testimony under MLATs also range broadly. MLATs 
increasingly are extending beyond vehicles for gathering 
information to include ways of denying criminals the fruits and 
the instrumentalities of their crimes.

                     B. Section-by-Section Summary

1. Types of proceedings

    MLATs generally call for assistance in criminal 
investigations and proceedings. This coverage often in broad 
enough to encompass all aspects of a criminal prosecution, from 
investigations by law enforcement agencies to grand jury 
proceedings to trial preparation following formal charges to 
criminal trail. Most recent MLATs also cover civil and 
administrative proceeding--forfeiture proceedings, for 
example--related to at least some types of prosecutions, most 
frequently those involving drug trafficking. However, the scope 
of some MLATs has been more circumscribed than the proposed 
treaty.
    The Austria Treaty calls for assistance ``in connection 
with the investigation and prosecution of offenses [which at 
the time of request are within the jurisdiction of the 
Requesting State], and in related forfeiture proceedings.'' 
(art. 1). Separately, the treaty states that requests are to be 
made on behalf of authorities that are responsible for 
investigating or prosecuting crimes. Investigations conducted 
by agencies that may refer matters for criminal prosecution are 
to be considered penal proceedings (art. 2).

Limitations on assistance

    All MLATs except various types of requests from the treaty 
assistance provisions. For example, judicial assistance 
typically may be refused if carrying out a request would 
prejudice the national security or other essential interest of 
the Requested State. Requests related to political offenses 
usually are excepted, as are requests related to strictly 
military offenses. Unlike the extradition treaties, dual 
criminality--a requirement that a request relate to acts that 
are criminal in both the Requested and Requesting States--
generally is not required. Nevertheless, some treaties do 
contain at least an element of a dual criminality standard. 
Additionally, some treaties go beyond military and political 
offenses to also except requests related to certain other types 
of crimes. Requests related to tax offenses at times have been 
restricted in an MLAT to offenses that are connected to other 
criminal activities. Before a request is denied, a Requested 
State generally is required to determine whether an otherwise 
objectionable request may be fulfilled subject to conditions.
    In the Austria Treaty, if a request concerns activity that 
is not criminal in the Requested State, the Requested may 
refuse to issue a court order for a search and seizure or other 
coercive measure. This may limit obtaining assistance with 
respect to certain extraterritorial crimes, among other 
activity. At the same time, a Requested State is to make every 
effort to approve a search and seizure or similar request and 
such assistance is required where there is reasonable suspicion 
that conduct that would be a crime if committed in its 
jurisdiction has taken place (art. 1(3)).
    Assistance is not to be refused in fiscal cases on the 
ground that the offense relates to a tax or a regulation of a 
type not imposed or adopted by the Requested State (art. 1(4)). 
However, assistance may be denied if a request relates to a 
political offense, and assistance also may be denied if it 
relates to a military offense not normally punishable under 
criminal law. Another basis for refusing assistance is that 
execution of a request would prejudice national security or 
other essential interest (art. 3). Before assistance may be 
denied, the parties are to consult to consider whether 
assistance may be given subject to conditions (art. 3).

3. Transmittal of requests

    Requests under MLATs are conveyed directly through 
designated Competent Authorities, which in the United States 
has been the Criminal Division of the Justice Department. The 
time and paperwork saved in thereby bypassing the courts and 
diplomatic channels are among the main advantages of MLATs. For 
example, a report by the Criminal Justice Section of the 
American Bar Association has stated that the circuitry of the 
channel for transmitting letters rogatory and evidence obtained 
under them often effectively frustrates use of letters rogatory 
as a means of obtaining assistance.\11\
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    \11\ American Bar Association, Criminal Justice Section, Report 
(No. 109) to the House of Delegates 3 (1989 Annual Meeting in Honolulu) 
(hereinafter cited as ABA Report).
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    The provisions on the form and contents of requests are 
contained in article 4 of the respective treaties. All five of 
the MLATs under consideration require that a request for 
assistance under an MLAT be in writing, except in urgent 
situations (in which case a request must be confirmed in 
writing later, typically within 10 days). Among the information 
usually to be included in a request are (1) the name of the 
authority conducting the investigation, prosecution, or 
proceeding to be assisted by the request; (2) a detailed 
description of the subject matter and nature of the 
investigation, prosecution, or proceeding to which the request 
relates, including, under all of the treaties other than the UK 
treaty, a description of the pertinent offenses; and (3) a 
description of the evidence or other assistance being sought.
    To the extent necessary and possible, other information 
that may facilitate carrying out the request also is to be 
provided, including, for example, information on the 
whereabouts of information or persons sought or a description 
of a place or person to be searched and of objects to be 
seized. Additional information may include lists of questions 
to be asked, a description of procedures to be followed, and 
information on allowances and expenses to be provided to an 
individual who is asked to appear in the Requesting State.

4. Execution of requests

    Under the proposed treaties the Competent Authority of a 
Requested State is to execute a request promptly or, when 
appropriate, transmit the request to authorities having 
jurisdiction within the Requested State to execute it. The 
competent authorities of the Requested State are to do 
everything in their power to execute the request.
    Article 5 of the proposed MLAT provides that requests are 
to be executed in accordance with the laws of the Requested 
State, unless the treaties provide otherwise. At the same time, 
the method of execution specified in a request is to be 
followed unless the laws of the Requested State prohibit it. As 
is typical in other MLATs the proposed treaty provides that the 
judicial authorities of the Requested State shall have power to 
issue subpoenas, search warrants, or other orders necessary to 
execute the request. The Austria Treaty expressly states that 
the courts are to have the same power to issue orders as they 
have with respect to domestic investigations and prosecutions.
    The Central Authority of a Requested State may postpone or 
place conditions on the execution of a request if execution in 
accordance with the request would interfere with a domestic 
criminal investigation or proceeding, jeopardize the security 
of a person, or place an extraordinary burden on the resources 
of the Requested State.
    At the request of a Requesting State, a Requested State is 
to use its best efforts to keep a request and its contents 
confidential. If a request cannot be executed without breaching 
confidentiality, the Requested State shall so inform the 
Requesting State, and the Requesting State then is given the 
option to proceed nonetheless. (Provisions on keeping 
information provided to a Requesting State confidential are 
discussed below.)
    Requested States generally bear the costs of executing a 
request other than expert witness fees; interpretation, 
transcription, and translation costs; and travel costs for 
individuals whose presence is Requested in the Requesting State 
or a third State.

5. Types of assistance

    In conducting a covered proceeding, a Requesting State 
commonly may obtain assistance from a Requested State that 
includes (1) the taking of testimony or statements of persons 
located there; (2) service of documents; (3) execution of 
requests for searches and seizures; (4) the provision of 
documents and other articles of evidence; (5) locating and 
identifying persons; and (6) the transfer of individuals in 
order to obtain testimony or for other purposes. Also, mutual 
legal assistance treaties increasingly have called for 
assistance in immobilizing assets, obtaining forfeiture, giving 
restitution, and collecting fines.
            Taking testimony and compelled production of documents in 
                    Requested State
    The proposed MLAT permits a State to compel a person in the 
Requested State to testify and produce documents there. Persons 
specified in the requested are to be permitted to be present 
and usually have the right to question the subject of the 
request directly or have questions posed in accordance with 
applicable procedures of the Requested State. If a person whose 
testimony is sought objects to testifying on the basis of a 
privilege or other law of the Requesting State, the person 
nevertheless must testify and objections are to be noted for 
later resolution by authorities in the Requesting State. The 
Austria MLAT (art. 8) specifically provides that a person who 
gives false testimony in the Requested State may be punished in 
accordance with its criminal laws.
    With respect to questioning a witness by a person specified 
in the request, the proposed MLAT with Austria contains a broad 
right to question (art. 8).
            Service of documents
    Under an MLAT, a Requesting State may enlist the assistance 
of the Requested State to serve documents related to or forming 
part of a request to persons located in the Requested State's 
territory. This obligation generally is stated as a requirement 
of the Requested State to ``use its best efforts to effect 
service'' (art 14).
    The treaties require that documents requiring a person to 
appear before authorities be transmitted by a certain time-
usually stated as ``a reasonable time.'' The proposed Austria 
MLAT (art. 14) states that if a national of the Requested State 
(or a person who has ``equal status thereto'') does not respond 
to a subpoena to appear in the Requesting State as a witness or 
expert that individual shall not be subject to any penalty or 
other coercive measure.
    The service provisions of the MLAT under consideration is 
broader than some of those under MLATs currently in force. 
Provisions under some earlier MLAT's provide that a Requested 
State has discretion to refuse to serve a document that compels 
the appearance of a person before the authorities of the 
Requesting State.
            Searches and seizures
    MLATs compel that an item be searched for and seized in the 
Requested State whenever a Requesting State provides 
information that would be sufficient to justify a search and 
seizure under the domestic law of the Requested State. The MLAT 
authorizes conditioning or otherwise modifying compliance to 
assure protection of third parties who have an interest in the 
property seized. The proposed MLAT contains procedures and 
forms for verifying the condition of an item when seized and 
the chain of individuals through whose hands the item passed. 
These provisions state that no other verification is necessary 
for admissibility in the Requesting State.
    In addition to showing that a search and seizure would be 
justified under the law of the Requested State, the Austria 
MLAT (art. 15) requires a showing that the item could have been 
compelled to be produced were it located in the Requesting 
State.
            Provision of documents possessed by the Government
    MLATs provide a variety of means for obtaining documents 
abroad. Two means--compelled production in a Requested State by 
an individual there and search and seizure--have been 
mentioned. Additionally, a Requesting State generally may 
obtain publicly available documents. In its discretion, a 
Requested State may provide a Requesting State documents in its 
possession that are not publicly available if the documents 
could be made available to domestic authorities under similar 
circumstances. The MLAT contains a provision allowing 
authentication under the Convention Abolishing the Requirement 
of Legalization of Foreign Public Documents.
            Testimony in Requesting State
    MLATs do not require the compelled appearance of a person 
in a Requesting State, regardless of whether the person is in 
custody or out of custody in the Requested State. Under 
provisions on persons not in custody, a Requesting State may 
ask a Requested State to invite a person to testify or 
otherwise assist an investigation or proceeding in the 
Requesting State. A request to invite a witness generally is 
accompanied by a statement of the degree to which the 
Requesting State will pay expenses. The proposed Austria MLAT 
(art. 10) provides for advances of funds to witnesses. A 
Requested State is required to invite the person Requested to 
appear in the Requesting State and to inform that State 
promptly of the invited witness's response.
    A person in custody may not be transferred to a Requesting 
State under an MLAT unless both the person and the Requested 
State consent. A Requesting State is required to keep a person 
transferred in custody and to return the person as soon as 
possible and without requiring an extradition request for 
return. Persons transferred receive credit for time spent in 
custody in the Requesting State.
    The proposed MLAT make some express provision for immunity 
from process and prosecution for individuals appearing in the 
Requesting State in accordance with a treaty request. Under the 
proposed Austria MLAT (art. 11), immunity extends to (1) civil 
suits to which the witness could not be subjected but for 
presence in the Requesting State and (2) prosecution or 
punishment for acts committed before the witness's departure 
from the requested State. Immunity from process and prosecution 
expires if the person appearing in the Requesting State stays 
beyond a designated period after the person is free to leave or 
if the person appearing voluntarily reenters the requesting 
State after leaving.
            Immobilization of assets and forfeiture
    The proposed MLAT contains a forfeiture assistance 
provision. A Requesting State is permitted to enlist the 
assistance of a Requested State to forfeit or otherwise seize 
the fruits or instrumentalities of offenses that the Requesting 
State learns are located in the Requested State. A Requested 
State, in turn, may refer information provided it about fruits 
and instrumentalities of crime to its authorities for 
appropriate action under its domestic law and report back on 
action taken by it.
    More generally, the MLATs require the parties to assist 
each other to the extent permitted by their respective laws in 
proceedings on forfeiting the fruits and instrumentalities of 
crime. To the extent permitted in domestic law, the Austria 
MLAT (art. 17) also requires assistance in (1) providing 
restitution to crime victims and (2) collecting criminal fines. 
The proposed MLAT provides that forfeited proceeds are to be 
disposed of under the law of the Requested State, and if that 
law permits, forfeited assets or the proceeds of their sale may 
be transferred to the Requesting State.
            Limitations on use
    To address potential misuse of information provided, MLATs 
restrict how a Requesting State may use material obtained under 
them. States at times have raised concerns that MLATs could be 
used to conduct ``fishing expeditions,'' under which a 
Requesting State could obtain information not otherwise 
accessible to it in search of activity it considers prejudicial 
to its interests. Requested States also are concerned that its 
own enforcement interests may be compromised if certain 
information provided by them is disclosed except as is 
compelled in a criminal trial. As a result, the MLAT contains a 
provision requiring information be kept confidential and 
limited in use to purposes stated in the request.
    Article 7 of the proposed MLAT allows the Requested State 
to place confidentiality and use restrictions on information 
and other material. Typically, a Requested State may require 
that information or evidence not be used in any investigation, 
prosecution, or proceeding other than that described in the 
request. Requested States also may request that information or 
evidence be kept confidential, and Requesting States are to use 
their best efforts to comply with the conditions of 
confidentiality. Nevertheless, once information or evidence has 
been made public in a Requesting State in the normal course of 
the proceeding for which it was provided, it may be used 
thereafter for any other purpose.
    Regarding confidentiality and use limits, the Austria MLAT 
requires prior consent of the Requested State, even if that 
State did not affirmatively request limits on use, in using 
material obtained in relation to a fiscal offense for any 
purpose other than related customs, excise, and tax 
proceedings.
            Location of persons or items
    In whole or in part, MLAT requests most often require the 
Requested State to locate a person or item. The proposed MLAT 
requires the Requested State's ``best efforts'' in locating the 
person or item.

6. MLATs and Defendants

    International agreements frequently confer benefits on 
individuals who are nationals of the State parties. Investment 
and immigration opportunities, tax benefits, and assistance in 
civil and commercial litigation are but some of the advantages 
an individual may enjoy under an international agreement. 
Nevertheless, it is clear that MLATs are intended to aid law 
enforcement authorities only.
    The resulting disparity between prosecution and defendant 
in access to MLAT procedures has led some to question the 
fairness and event the constitutionality of MLATs denying 
individual rights. (The constitutional provisions most 
immediately implicated by denying a defendant use of MLAT 
procedures are the fifth, sixth, and fourteenth amendments.) At 
the core of the legal objections is the belief that it is 
improper in our adversarial system of justice to deny 
defendants compulsory process and other effective procedures 
for compelling evidence abroad if those procedures are 
available to the prosecution.\12\
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    \12\ In its 1989 report on MLATs, the Criminal Justice Section of 
the American Bar Association both strongly supported MLATs and also 
recommended that ``every future MLAT should expressly permit criminal 
defendants to use the treaty to obtain evidence from the Requested 
country to use in their defense if they can make a showing of necessity 
to the trial court.'' ABA Report at 8.
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    Those opposing defendant use of MLAT procedures fear that 
States would not enter into MLATs if it meant making 
information available to criminals. Also, MLAT do not preclude 
accused persons from using letters rogatory to obtain evidence 
located in the territory of treaty partners, even though the 
non-mandatory nature of letters rogatory may result in 
difficulties in obtaining evidence quickly.
    In its response to a question for the record by Senator 
Helms on this issue the State Department stated:

    There are no legal challenges to any of our existing MLATs. 
It is the position of the Department of Justice that the MALTs 
are clearly and unquestionably constitutional.
    In 1992, Michael Abbell, then-counsel to some members of 
the Cali drug cartel, did suggest to the Committee that MLATs 
should permit requests by private persons such as defendants in 
criminal cases. To our knowledge, no court has adopted the 
legal reasoning at the core of that argument.
    The Department of Justice believes that the MLATs before 
the Committee strike the right balance between the needs of law 
enforcement and the interests of the defense. The MLATs were 
intended to be law enforcement tools, and were never intended 
to provide benefits to the defense bar. It is not ``improper'' 
for MLATs to provide assistance for prosecutors and 
investigators, not defense counsel, any more than it would be 
improper for the FBI to conduct investigations for prosecutors 
and not for defendants. The Government has the job of 
assembling evidence to prove guilt beyond a reasonable doubt, 
so it must have the tools to do so. The defense does not have 
the same job, and therefore does not need the same tools.
    None of the MLATs before the Senate provide U.S. officials 
with compulsory process abroad. None of the treaties require 
the treaty partner to compel its citizens to come to the United 
States, and none permit any foreign Government to compel our 
citizens to go abroad. Rather, the MLATs oblige each country to 
assist the other to the extent permitted by their laws, and 
provide a framework for that assistance. Since the Government 
does not obtain compulsory process under MLATs, there is 
nothing the defense is being denied.
    The MLATs do not deprive criminal defendants of any rights 
they currently possess to seek evidence abroad by letters 
rogatory or other means. The MLATs were designed to provide 
solutions to problems that our prosecutors encountered in 
getting evidence from abroad. There is no reason to require 
that MLATs be made available to defendants, since many of the 
drawbacks encountered by prosecutors in employing letters 
rogatory had largely to do with obtaining evidence before 
indictment, and criminal defendants never had those problems.
    Finally, it should be remembered that the defendant 
frequently has far greater access to evidence abroad than does 
the Government, since it is the defendant who chose to utilize 
foreign institutions in the first place. For example, the 
Government often needs MLATs to gain access to copies of a 
defendant's foreign bank records; in such cases, the defendant 
already has copies of the records, or can easily obtain them 
simply by contacting the bank.

                  IV. Entry Into Force and Termination

                          a. entry into force

    The Treaty enters into force upon exchange of instruments 
of ratification.

                             b. termination

    The Treaty will terminate six months after notice by a 
Party of an intent to terminate the Treaty.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Wednesday, July 17, 1996. The hearing 
was chaired by Senator Helms. The Committee considered the 
proposed treaty on July 24, 1996, and ordered the proposed 
treaty favorably reported with two provisos by voice vote, with 
the recommendation that the Senate give its advice and consent 
to the ratification of the proposed treaty.

                         VI. Committee Comments

    The Committee on Foreign Relations recommended favorably 
the proposed treaty. The Committee believes that the proposed 
treaty is in the interest of the United States and urges the 
Senate to act promptly to give its advice and consent to 
ratification. In 1996 and the years head, U.S. law enforcement 
officers increasingly will be engaged in criminal 
investigations that traverse international borders. The 
Committee believes that attaining information and evidence (in 
a form that comports with U.S. legal standards) related to 
criminal investigations and prosecutions, including drug 
trafficking and narcotics-related money laundering, is 
essential to law enforcement efforts.
    To cite an example of how an MLAT can benefit the U.S. 
justice system, the Committee notes the response by the State 
Department to Chairman Helms' question for the record regarding 
how the U.S. has made use of the MLAT with Panama after its 
1995 ratification:

          Once recent case from the Southern District of Texas 
        serves as an example of the usefulness of the treaty in 
        the prosecution of financial crimes. In that case, the 
        Assistant U.S. Attorney urgently needed bank records 
        from Panama to verify the dates and amounts of certain 
        money transfers of the alleged fraud proceeds in order 
        to corroborate the testimony of a principal witness. 
        The U.S. requested the records only a short time before 
        they were needed in the trial, and we were pleased that 
        Panamanian authorities produced the records promptly. 
        The records were described by the prosecutors as ``the 
        crowning blow'' to arguments raised by the defense and 
        indispensable to the Government's ultimate success in 
        the trial.

    The Committee believes that MLATs should not, however, be a 
source of information that is contrary to U.S. legal 
principles. To attempt to ensure the MLATs are not misused two 
provisos have been added to the Committee's proposed resolution 
of ratification. The first proviso reaffirms that ratification 
of this treaty does not require or authorize legislation that 
is prohibited by the Constitution of the United States. 
Bilateral MLATs rely on relationships between sovereign 
countries with unique legal systems. In as much as U.S. law is 
based on the Constitution, this treaty may not require 
legislation prohibited by the Constitution.
    The second proviso--which is no legally binding in 11 
United States MLATs--requires the U.S. to deny any request from 
an MLAT partner if the information will be used to facilitate a 
felony, including the production or distribution of illegal 
drugs. This provision is intended to ensure that MLATs will 
never serve as a tool for corrupt officials in foreign 
governments to gain confidential law enforcement information 
from the United States.

                  VII. Explanation of Proposed Treaty

    The following is the Technical Analysis of the Mutual Legal 
Assistance Treaty submitted to the Committee on Foreign 
Relations by the Departments of State and Justice prior to the 
Committee hearing to consider pending MLATs.

technical analysis of the MLAT between the united states of america and 
                                austria

    On February 23, 1995, the United States and the Republic of 
Austria signed the Treaty on Mutual Legal Assistance in 
Criminal Matters (``the Treaty''). The Treaty is a major step 
forward in the formal law enforcement relationship between the 
two countries. In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 28, United States Code, Section 1782. Austria has its 
own mutual legal assistance law \13\ and does not anticipate 
enacting new implementing legislation.
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    \13\ ``Federal Law of December 4, 1979, Regarding Extradition and 
Judicial Assistance in Criminal Matters,'' Bundesgesetzblatt No. 529/
1979 (``Austrian Mutual Assistance Law'').
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    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 
negotiations.

Article 1--Scope of assistance

    Paragraph 1 provides for assistance ``in connection with 
the investigation and prosecution of offenses, the punishment 
of which at the time of the request for assistance would fall 
within the jurisdiction of judicial authorities of the 
Requesting State, and in related forfeiture proceedings.'' \14\ 
For the United States, this includes a grand jury 
investigation, a criminal trial, a sentencing proceeding, and 
an administrative inquiry by an agency with investigative 
authority for the purpose of determining whether to refer the 
matter to the Department of Justice for criminal prosecution. 
It also includes any proceeding, whether labeled criminal, 
civil or administrative, that relates to the criminal 
investigation or prosecution for which assistance is requested. 
Thus, the Treaty may be invoked to provide assistance for civil 
forfeiture proceedings against instrumentalities or proceeds of 
a crime (e.g., drug trafficking) or for disgorgement 
proceedings brought by an administrative agency (e.g., the 
United States Securities and Exchange Commission) to recover 
profits from illegal practices.
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    \14\ Unlike some United States mutual legal assistance treaties, 
the Treaty is silent regarding assistance in the ``prevention'' of 
crimes (i.e., anticipation of criminal activity). This was intentional 
on the party of the negotiators, who did not intend the Treaty to cover 
police-to-police cooperation before a crime is committed. The 
delegations agreed that must of what is included in the concept of 
``prevention'' is indeed covered under the Treaty as an ``attempt'' to 
commit a crime.
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    The requirement that the matter must ``fall within the 
jurisdiction of the judicial authorities'' was included at 
Austria's request so that assistance under the Treaty is only 
available to judicial authorities in Austria, not to 
administrative authorities such as those with jurisdiction over 
Austrian traffic offenses.
    Paragraph 2 lists the types of assistance specifically 
considered by the United States and Austrian delegations. Most 
of the items are described in greater detail in subsequent 
articles. The list is not exhaustive, as is indicated by the 
phrase ``assistance shall include'' in the paragraph's chapeau 
and is reinforced by the phrase in item (i) ``any other form of 
assistance not prohibited by the laws of the Requested State.''
    Paragraph 3 specifies that the principle of dual 
criminality is generally inapplicable. Dual criminality 
obligates the Requested State to provide assistance only when 
the criminal conduct committed in the Requesting State also 
constitutes a crime if committed in the Requested State. In 
other words, the obligation to provide assistance upon request 
arises irrespective of whether the offense for which assistance 
is requested is a crime in the Requested State.
    Paragraph 3, however, does give the Requested State 
discretion to deny a request for assistance if dual criminality 
does not exist and the execution of the request would require a 
court order for search and seizure or other coercive measures. 
The Austrian delegation requested this limitation because it is 
required by Austria's law \15\ and constitution. Paragraph 3 
obligates the Requested State to ``make every effort to approve 
a request for assistance requiring court orders or other 
coercive measures'' and obligates the Requested State to grant 
such assistance if, using the standard of ``reasonable 
suspicion,'' the conduct described would also constitute a 
crime under the laws of the Requested State. The delegations 
anticipate that only on extremely rare occasions will the dual 
criminality requirement prevent the granting of requested 
assistance.
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    \15\ See Austrian Mutual Assistance Law Sec. 51(1).
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    Paragraph 4 mandates that assistance may not be refused 
with respect to fiscal offenses without regard for the 
differences in the kinds of taxes or duties or regulations 
imposed by each Contracting Party.
    Paragraph 5, a standard provision in United States mutual 
legal assistance treaties, expresses the intention of the 
negotiators that the Treaty is primarily for government-to-
government assistance. The Austrian delegation indicated that 
under its legal system, courts are required to seek evidence to 
assist defense counsel as well as prosecutors. The Austrian 
Central Authority therefore will make such requests to the 
United States under the Treaty. The United States delegation 
stated that the United States Central Authority ordinarily does 
not make treaty requests on behalf of defense counsel. The 
negotiators agreed that the Treaty is not available for use by 
private counsel representing civil litigants as a means of 
evidence-gathering in criminal or civil matters. Private 
litigants in the United States may continue to obtain evidence 
from Austria by letters rogatory, an avenue of international 
assistance left undisturbed by the Treaty. Similarly, the 
Treaty is not intended to create any right in private persons 
to suppress or exclude evidence provided under the Treaty.

Article 2--Central Authorities

    Paragraph 1 requires that each Contracting Party designate 
a ``Central Authority.'' The Attorney General ``or such persons 
as the Attorney General designates'' constitute the Central 
Authority for the United States, as is customary with all 
United States mutual legal assistance treaties. The Attorney 
General has delegated these responsibilities to the Assistant 
Attorney General in charge of the Criminal Division.\16\ For 
Austria, the Minister of Justice, or persons designated by the 
Minister of Justice, act as the Central Authority.
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    \16\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and to the Director of the Criminal 
Division's Office of International Affairs, in accordance with the 
regulation. Directive No. 58, 44 Fed. Reg. 18,661 (1979), as amended at 
45 Fed. Reg. 6,541 (1980); 48 Fed. Reg. 54,595 (1983). That delegation 
subsequently was extended to the Deputy Directors of the Office of 
International Affairs. 59 Fed. Reg. 42,160 (1994).
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    Paragraph 2 provides that the Central Authority will ``make 
and receive'' Treaty requests on behalf of its authorities 
which by law are responsible for investigations or prosecutions 
related to criminal matters. This includes competent criminal 
investigative authorities at the federal, state, and local 
levels in the United States. This paragraph makes it clear that 
investigations conducted by an agency with jurisdiction to 
refer matters for criminal prosecution shall be considered 
``penal proceedings,'' and hence covered by the Treaty. This 
definition allows the Central Authority of the United States to 
make requests to Austria on behalf of authorities such as the 
Securities and Exchange Commission and the Commodities Futures 
Trading Commission, even though these agencies are not usually 
viewed as criminal investigative authorities, since these 
agencies are statutorily charged with the responsibility to 
investigate criminal activity for purposes of referral for 
criminal prosecution.
    Paragraph 3 obligates the Central Authority of the 
Requesting State not to make requests if the offense ``would 
not have serious consequences'' in the Requesting State, or 
when execution of the request would require assistance from the 
Requested State that would be ``disproportionate to the 
sentence expected upon conviction.'' For example, Austria 
occasionally has used letters rogatory to seek assistance from 
the United States in cases involving traffic accidents or other 
relatively minor criminal matters that do not always justify 
the burden imposed on law enforcement by a formal request for 
international assistance. Paragraph 3 was intended to 
discourage the Requesting State from making such requests under 
the Treaty.
    Paragraph 4 provides that the Central Authorities shall 
communicate directly with one another for purposes of the 
Treaty. Requests that are not made by and transmitted through 
the Treaty channel are not considered Treaty requests and are 
not entitled to execution pursuant to the Treaty.

Article 3--Limitations on assistance

    Paragraph 1 specifies that a request for assistance may be 
denied if the request relates to a political or military 
offense. In addition, the Requested State may deny a request 
for assistance if the request ``would prejudice the security or 
similar essential interests of the Requested State.'' These 
restrictions are similar to those typically found in United 
States mutual legal assistance treaties. The negotiators 
anticipated that this provision will be invoked only in the 
most rare and extreme circumstances; the phrase ``security or 
other essential interests'' is intended to convey a concept of 
substantial national importance. The delegations agreed that 
the term ``essential interests'' is intended narrowly to limit 
the class of cases in which assistance may be denied. The fact 
that a Requesting State's prosecution would be inconsistent 
with public policy if brought in the Requested State is not a 
sufficient reason to deny assistance. Rather, the Requested 
State must be convinced that execution of the request would 
seriously conflict with significant public policy.
    It was agreed, however, that ``essential interests'' may 
include interests unrelated to national, military or political 
security, and that this clause may be invoked if the execution 
of a request would violate essential United States interests 
related to the fundamental purposes of the Treaty. For example, 
one fundamental purpose is to enhance law enforcement 
cooperation. The attainment of that goal would be hampered if 
sensitive law enforcement information available under the 
Treaty were to fall into the ``wrong hands.'' Accordingly, the 
United States Central Authority may invoke paragraph 1(c) to 
decline to provide sensitive or confidential drug-related 
information pursuant to a Treaty request whenever it 
determines, after appropriate consultation with law 
enforcement, intelligence, and foreign policy agencies, that a 
senior foreign government official who would have access to the 
information is engaged in or facilitates the production or 
distribution of illegal drugs and is using the request to the 
prejudice of a United States investigation or prosecution.\17\
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    \17\ This is consistent with the sense of the Senate as expressed 
in its advice and consent to ratification of the mutual legal 
assistance treaties with Mexico, Canada, Belgium, Thailand, the 
Bahamas, and the United Kingdom Concerning the Cayman Islands. Cong. 
Rec. 13,884 (1989) (treaty citations omitted). See also Staff of Senate 
Committee on Foreign Relations, 100th Cong., 2d sess., Mutual Legal 
Assistance Treaty Concerning the Cayman Island 67 (1988) (testimony of 
Mark M. Richard, Deputy Assistant Attorney General, Criminal Division, 
Department of Justice).
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    Similarly, the Austrian delegation indicated that Austria 
likely would invoke the ``essential interests'' clause to deny 
United States requests that would oblige Austria to assist in 
matters that could result in capital punishment. The Austrian 
constitution prohibits the death penalty, and Austria is firmly 
opposed to assisting or contributing to the implementation of 
capital punishment. The Austrian delegation stated that such 
denials would only occur if the evidence requested from Austria 
is the only evidence available in the case and hence would lead 
directly to the conviction and execution of the offender.
    The decision to deny assistance under the Treaty lies with 
the Central Authorities. In the United States, the Attorney 
General's designees work closely with the Department of State 
and other relevant agencies in determining whether to execute 
requests that involve ``security or similar essential 
interests.''
    Paragraph 2 imposes an obligation on the Central 
Authorities to consult one another before a request for 
assistance is denied. The consultation is designed to explore 
whether the Requested State could provide the assistance if 
protective conditions were put in place. If so, it is 
anticipated that the Requested State would grant the assistance 
under the specified conditions, which the Requesting State 
would agree to accept. Otherwise, the Requested State would 
deny the request. Once the Requesting State accepts assistance 
subject to the conditions, it is required to comply with the 
conditions.
    Paragraph 3 requires that the Central Authority of the 
Requested State notify the Central Authority of the Requesting 
State of any reasons for denial of a request pursuant to 
paragraph 1. Although notification usually will occur after the 
consultation phase pursuant to paragraph 2, the Central 
Authority of the Requesting State may have so advised its 
counterpart prior to the consultation.

Article 4--Form and contents of requests

    Paragraph 1 requires that a Treaty request be in writing, 
except that the Central Authority of the Requested State may, 
in its discretion, accept a request in another form ``in urgent 
situations.'' An example of the kind of urgency foreseen by the 
negotiators would be a request to block the imminent transfer 
of drug proceeds from the Requested State to a third state. If 
the Central Authority of the Requested State accepts an oral 
request in an urgent situation, the Requesting State must 
provide a written request within ten days unless the Central 
Authority of the Requested State specifies otherwise. Paragraph 
1 also provides that in ``urgent situations,'' the Central 
Authorities may agree that a translation of the request and 
supporting documents be prepared in the Requested State at the 
expense of the Requesting State.
    Paragraphs 2 and 3 are similar to articles in other United 
States mutual legal assistance treaties that specify the 
contents of a request.\18\ Paragraph 2 lists information that 
is required in every case both for evaluation and execution of 
a request. The Central Authority of the Requested State must be 
able to determine from the request whether it falls within the 
scope of the Treaty and therefore should be executed. The 
Central Authority must also determine from the request what its 
execution will entail.
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    \18\ See, e.g., U.S.-Switzerland Mutual Legal Assistance Treaty, 
May 25, 1973, art. 29, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 
61; U.S.-Spain Mutual Legal Assistance Treaty, Nov. 20, 1990, art. 4, 
T.I.A.S. No. eleven.
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    Paragraph 3 outlines the kinds of information to be 
provided in a request ``[t]o the extent necessary and 
possible.'' Depending on the assistance requested, certain 
additional information also may be necessary or possible. For 
example, if the request asks that a witness appear and testify, 
a ``description of the manner in which any testimony or 
statement is to be taken and recorded'' is required. A ``list 
of questions to be asked of a witness'' may be possible, but 
not necessary.
    In keeping with the intention of the negotiators that 
requests pass between the Central Authorities with as little 
administrative formality as possible, the Treaty contains no 
requirement that a request be legalized or certified.

Article 5--Execution of requests

    Paragraph 1 requires that each Contracting Party execute 
requests from the other promptly. If the Central Authority is 
not competent to execute the request, it must promptly transmit 
the request to a competent authority for execution. For 
Austria, the Ministry of Justice, upon receipt of a request 
from the United States Central Authority, determines whether 
(1) the request complies with the terms of the Treaty, and (2) 
its execution would prejudice the security or other essential 
interests of Austria. If the request merits execution, the 
Austrian Central Authority transmits the request to a court or 
public prosecutor for that purpose. The procedure is similar 
for the United States, except the United States Central 
Authority usually will transmit the request to federal 
investigators, prosecutors, or agencies for execution. The 
United States Central Authority also may transmit a request to 
state authorities in appropriate circumstances.
    Paragraph 1 further authorizes and requires the competent 
authority selected by the Central Authority to take such action 
as is necessary and within its power to execute the request. In 
Austria, execution of requests is almost exclusively within the 
province of the courts and the public prosecutors, whereas in 
the United States, execution can be entrusted to any competent 
authority in any branch of government, whether federal or 
state. Nevertheless, when a request from Austria requires 
compulsory process for execution, it is anticipated that the 
competent authority in the United States will issue the 
necessary compulsory process itself,\19\ or ask the competent 
judicial authorities to do so. The competent authorities in 
both Contracting Parties are bound to do ``everything in their 
power'' to execute requests.
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    \19\ For example, the Securities and Exchange Commission has the 
power to issue compulsory process to obtain evidence to execute a 
request for assistance from certain foreign authorities.
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    Paragraph 2 states that the Central Authority of the 
Requested State shall arrange for requests from the Requesting 
State to be presented to the appropriate authority in the 
Requested State for execution. In practice, the Central 
Authority for the United States transmits the request with 
instructions for its execution to an investigative or 
regulatory agency, the office of a prosecutor, or another 
governmental entity. If execution requires the participation of 
a court, the Central Authority selects an appropriate 
representative, usually a federal prosecutor, to present the 
matter to a court. Thereafter, the prosecutor represents the 
United States and acts to fulfill its obligations to Austria 
under the Treaty by executing the request. Upon receiving the 
court's appointment as a commissioner, the prosecutor/
commissioner acts as the court's agent in fulfilling the 
court's responsibility to do ``everything in its power'' to 
execute the request. Thus, the prosecutor may only seek 
compulsory measures after receiving permission from the court 
to do so.
    The situation with respect to Austria is different. The 
Austrian Central Authority transmits the request to the 
appropriate court \20\ with general advice regarding Austria's 
obligations under the Treaty and the general evidentiary and 
procedural requirements of the United States.
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    \20\ See Austrian Mutual Assistance Law Sec. 55.
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    Paragraph 3 provides that all requests shall be executed in 
accordance with the laws of the Requested State except to the 
extent that the Treaty specifically provides otherwise. The 
negotiators discussed the procedures applicable in each 
Contracting Party in executing requests for legal assistance 
from the other, and agreed to accommodate any specific 
procedure requested by the other to the extent permitted under 
the law of the Requested State or under specific treaty 
provisions (e.g., article 8).
    Paragraph 3 further authorizes the courts of each 
Contracting Party to issue orders to execute Treaty requests as 
would be authorized for domestic investigations and 
prosecutions. In Austria, the use of subpoenas is unknown. 
Austrian courts are expected to exercise their authority to do 
whatever is necessary to execute a Treaty request, including 
effecting the appearance of a witness (whether by court order 
or arrest), issuing and enforcing a search warrant, and seizing 
evidence. In the United States, courts usually will be called 
upon to exercise their authority by means of an application for 
execution of a request pursuant to the Treaty. This is also 
consistent with the provisions of Title 28, United States Code, 
Section 1782.\21\ Typically, the court will appoint and 
authorize a commissioner to issue subpoenas in executing a 
Treaty request. The court may also instruct the commissioner to 
appear before the court to request orders to enforce the 
subpoenas, if necessary; for searches and seizures, to the 
extent that probable cause exists; or to freeze the proceeds of 
a crime.
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    \21\ The Treaty is intended to be self-executing for the United 
States; no legislation is necessary for United States courts to assist 
in performing United States obligations under the Treaty.
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    Paragraph 3 also makes clear that the Treaty does not 
authorize the use in the Requested State of methods of 
execution that would be prohibited under its laws.
    Paragraph 4 contemplates a situation in which execution of 
a request would interfere with an ``ongoing criminal 
investigation or proceeding'' (not an administrative or civil 
matter or a closed criminal matter) in the Requested State. 
This provision permits the Central Authority of the Requested 
State to postpone execution or to execute the request subject 
to conditions agreed upon with the Requesting State to protect 
the Requested State's investigation or proceeding. This 
provision does not permit denial of assistance, which is 
covered separately under article 3 or as specified elsewhere in 
the Treaty.\22\
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    \22\ See, e.g., U.S.-Austria Mutual Legal Assistance Treaty, Feb. 
23, 1995, art. 9(2), T.I.A.S. No. ------.
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    When the Central Authority of the Requested State 
determines that it is appropriate to postpone execution of a 
request under this provision, it should take steps to obtain or 
preserve evidence that might otherwise be lost or destroyed 
before the conclusion of the investigation, prosecution, or 
proceeding taking place in the Requested State so that the 
Requesting State is not seriously disadvantaged by having to 
wait until the conclusion of the investigation, prosecution, or 
proceedings in the Requested State. If the Central Authority of 
the Requested State permits execution under specified 
conditions and the Requesting State agrees to the conditions, 
the Requesting State must comply with them.
    Paragraph 5 requires that the Requested State use its 
``best efforts'' to safeguard any confidentiality requested by 
the Requesting State with respect to both the fact that a 
request was made and the contents of that request. If the 
Requested State cannot execute the request without disclosing 
the information in question (as may occur if execution requires 
a public judicial proceeding in the Requested State), the 
Central Authorities must consult one another so that the 
Requesting State may consider withdrawal of the request so as 
not to risk jeopardizing its investigation, prosecution, or 
proceeding by possible disclosure.
    Paragraph 6 obligates the Central Authority of the 
Requested Stated to notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
Customarily, this occurs when the assistance requested is 
provided. When the request is only partially executed, or is 
wholly unexecuted, the Central Authority of the Requested State 
must notify the Central Authority of the Requesting State of 
the reasons therefor.

Article 6--Costs

    This article obligates the Requested State to pay all costs 
relating to the execution of a request except for fees of 
expert witnesses; translation, interpretation, and 
transcription costs; and specified travel expenses. Costs 
``relating to'' execution refers to costs typically incurred in 
transmitting a request to the executing authority, notifying 
witnesses and arranging for their appearances, producing copies 
of the evidence, conducting a proceeding to compel execution of 
a request, etc. The negotiators agreed that the costs 
``relating to'' execution that are to be borne by the Requested 
State do not include expenses associated with the travel of 
investigators, prosecutors, counsel for the defense, or 
judicial authorities, for example, to question a witness or to 
take a deposition in the Requested State pursuant to article 
8(3).

Article 7--Limitations on use

    Paragraph 1 provides that the Central Authority of the 
Requested State ``may require'' that any evidence or 
information that the Requested State provides to the Requesting 
State ``not be used in any investigation, prosecution, or 
proceeding'' other than that which the request concerns, unless 
the Requested State gives prior consent.\23\ The Austrian 
negotiators made clear that the discretionary limitation on use 
imposed by this sentence of article 7 likely would be invoked 
very rarely. One example in which this clause might be invoked 
is a request for production of records that would disclose 
sensitive business secrets. In such a case, assistance would be 
granted on condition that there be no further use of the 
information or evidence without prior of the Requested State.
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    \23\ This provision is similar to one present in the United States-
Netherlands Treaty, June 12, 1981, art. 11, T.I.A.S. No. 10734, 1359 
U.N.T.S. 209.
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    Paragraph 1 also creates a different rule for cases in 
which assistance is granted for fiscal offenses. In such cases, 
any evidence or information obtained under the Treaty can be 
used only for the investigation, prosecution, or proceeding 
described in the request, or in a related customs duty, excise 
or tax proceeding. The information or evidence cannot be used 
for purposes other than the aforementioned without prior 
consent of the Requested State. In other words, the Central 
Authority of the Requested State does not have the discretion 
to impose or not impose use limitations on evidence obtained in 
fiscal offenses, as the Treaty automatically imposes such 
limitations. The Requesting State is permitted to use such 
evidence in related fiscal cases without limitation, though, 
and the Central Authority can give its consent to use of 
information in such cases for an unrelated purpose.
    Paragraph 2 authorizes the Central Authority of the 
Requested State to request that particular information or 
evidence furnished in a specific case be kept confidential or 
be used subject to specific conditions.\24\ The delegations 
agreed that ``best efforts'' is not a guarantee, as certain 
situations require that evidence be disclosed. For example, 
United States law requires the disclosure to defense counsel of 
discovery evidence that is exculpatory to the accused.\25\ This 
is consistent with the overall purpose of the Treaty, the 
production of evidence for trial, which would be frustrated if 
the Requested State could let the Requesting State see valuable 
evidence while preventing the Requesting State from using the 
evidence. In the event the United States is required to 
disclosed evidence that was obtained under the Treaty pursuant 
to assurances it would remain confidential, the United States 
would consult in advance with Austria in order to fashion a 
method of disclosure acceptable to both Contracting Parties.
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    \24\ This confidentiality is different from that discussed in 
article 5(5), which authorizes the Central Authority of the Requesting 
State to ask for, and requires the Requesting State to use, ``best 
efforts'' to maintain confidentiality with respect to a request and its 
contents.
    \25\ Brady v. Maryland, 373 U.S. 83 (1963).
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    Paragraph 3 provides that once information or evidence 
becomes public in the Requesting State in accordance with the 
Treaty, it may thereafter be used for any purpose. The 
negotiators expected that the good faith exercise of ``best 
efforts'' will protects confidentiality up to the point that it 
is maintained by the courts in the Requesting State. However, 
since the primary purpose of the Treaty is to provide evidence 
for the prosecution of offenses, some confidential evidence may 
become public when introduced as evidence at trial or otherwise 
disclosed as part of related judicial proceedings. An example 
is when the information is publicly disclosed as part of the 
sentencing process in the United States.

Article 8--Testimony of evidence in the Requesting State

    Articles 8 through 17 describe specific types of assistance 
available pursuant to the Treaty, all of which are similar to 
provisions in other United States mutual legal assistance 
treaties. Article 8 requires that each Contracting Party permit 
the taking of testimony and evidence on behalf of the other.
    Paragraph 1 obligates the Requesting State to compel 
persons to appear and testify or produce evidence requested by 
the Requesting State. Judicial authorities of both Contracting 
Parties have the power to compel testimony or documents from 
individuals or companies in connection with both domestic and 
foreign proceedings. The criminal laws of both Contracting 
Parties contain provisions that sanction the production of 
false evidence.
    Paragraph 1 explicitly states that the criminal laws in the 
Requesting State shall apply when a person in the Requesting 
State provides false evidence in execution of a request. The 
negotiators expected that if any falsehood is made in execution 
of a request, the Requesting State may ask the Requested State 
to prosecute the person for perjury, and should provide the 
Requested State with the information or evidence needed to 
prove the falsehood.
    Paragraph 2 requires that upon request, the Central 
Authority of the Requested State must notify the Central 
Authority of the Requesting State ``in advance'' of the date 
and place of the taking of testimony. Although the time period 
``in advance'' is undefined, the negotiators understood that 
each Contracting Party will attempt to accommodate the needs of 
the other in this regard.
    Advance notice is of particular importance to the United 
States because United States authorities sometimes rely heavily 
on deposition testimony when a witness is unwilling or unable 
to come to the United States to testify at trial. With 
assurance of advance notice, a United States trial court can 
order that a deposition take place in Austria on a date to be 
specified by Austrian authorities; the United States court may 
even indicate a preferred date. The Central Authorities will 
attempt to accommodate the court and will notify the court 
sufficiently in advance of the depositions in order to permit 
the parties to be present.
    Paragraph 3 guarantees that the persons ``specified in a 
request'' will be allowed to be present during the execution of 
the request. For the United States, the persons so specified 
might include prosecutors, investigators, court reporters, 
translators, interpreters, defendants, and defense counsel.
    The presence of a stenographer at a deposition generally is 
critical to preserve testimony of witnesses as United States 
practice is to introduce into evidence a verbatim transcript of 
out-of-court testimony rather than a summary or abbreviated 
form (as is the practice in civil law jurisdictions). The 
United States practice in part is intended to permit the trier 
of fact to receive the transcribed testimony under conditions 
as similar as possible to hearing the testimony in person.
    The presence of the defendant and defense counsel is 
important under United States law in order for a defendant to 
have an opportunity to confront and question adverse witnesses. 
Neither delegation foresaw any problem in accommodating the 
needs of confrontation under both legal systems.
    Paragraph 4 permits a witness whose testimony or evidence 
is sought to assert claims of privilege,\26\ immunity, or 
incapacity available under the laws of the Requesting State. 
The executing authority of the Requested State notes these 
claims but defers to the appropriate authority in the 
Requesting State to decide them on the merits. The taking of 
testimony or evidence therefore can continue in the Requested 
State without delay whenever issues involving the law of the 
Requesting State arise.
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    \26\ Both the United States and Austria recognize the privilege of 
a witness against self-incrimination.
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    Paragraph 5 is primarily for the benefit of the United 
States. In the United States, evidence that is to be used as 
proof in a legal proceeding must be authenticated. This 
paragraph provides that evidence produced in the Requested 
State pursuant to article 8 may be authenticated by an 
``attestation.'' Although the provision is sufficiently broad 
to include the authentication of ``any items produced * * * 
pursuant to this Article,'' the negotiators focused on and were 
primarily concerned with business records. In order to ensure 
that business records provided by Austria pursuant to the 
Treaty can be authenticated in a manner consistent with 
existing United States law, the negotiators crafted ``Form A,'' 
which follows the language of Title 18, United States Code, 
Section 3505, the statute concerning foreign business records 
authentication. Paragraph 5(a) provides that Austrian 
authorities must properly complete, sign, and attach Form A to 
executed documents so that records may be admitted into 
evidence in the United States without the appearance of a 
witness at trial.
    In the event that a witness refuses to complete Form A, 
paragraph 5(b) provides for use of ``protocol containing the 
essential information'' that is otherwise included in Form A. 
Paragraph 5(c) provides for use of a ``document'' containing 
the essential information required by the Requesting State. 
This provision is intended to accommodate potential changes in 
United States evidentiary law without changing the Treaty. 
Pursuant to paragraph 5(c), the Requesting State makes its 
requirements for certification known in the request, and such 
procedures should be followed to the extent possible under the 
law of the Requested State.
    The admissibility of evidence as referred to in this 
paragraph pertains only to the authenticity of the evidence, 
not to other requirements of admissibility such as relevance 
and materiality. Whether the evidence is in fact admitted is a 
determination within the province of the judicial authority 
presiding at the trial.

Article 9--Records of Government agencies

    Paragraph 1 obligates each Contracting Party to furnish to 
the other copies of publicly available materials in the 
possession of ``government departments and agencies or courts 
of the Requested State.'' For the United States, this includes 
executive, judicial, and legislative units at the Federal, 
state, and local levels. For Austria, such documents are under 
the control of the federal and state courts.
    Paragraph 2 gives each Contracting Party discretion to 
furnish to the other copies of materials in its possession that 
are not publicly available ``to the same extent and under the 
same conditions'' as such copies would be available to the 
appropriate law enforcement or judicial authorities in the 
Requested State. This requirement is important because some 
United States statutes limit disclosure of government 
information to specific United States law enforcement 
authorities for certain purposes.
    The intent of the negotiators is to broaden statutorily 
limited access to include foreign authorities entitled to 
assistance under the Treaty. For example, the negotiators 
agreed that the Treaty is a ``convention'' under Title 26, 
United States Code, Section 6103(k)(4), pursuant to which the 
United States may exchange tax information with treaty 
partners. Thus, the Internal Revenue Service may provide, tax 
returns and return information to Austria pursuant to the 
Treaty when, in a criminal investigation or prosecution, the 
Austrian authority on whose behalf the request is made meets 
the same conditions required of United States law enforcement 
authorities under Title 26, United States Code, Sections 6103 
(h) and (i). Of course, if no law enforcement authorities are 
entitled under any condition to gain access to a particular 
non-public record, a Contracting Party cannot expect access to 
it under the Treaty.
    Because non-public government records may contain sensitive 
information that would not necessitate a denial of assistance 
pursuant to article 3(1), the Treaty gives each Contracting 
Party discretion not to provide them. It is anticipated that 
this discretion will be used sparingly, if it is used at all.
    Paragraph 3 adopts the Convention Abolishing the 
Requirement of Legalization for Foreign Public Documents,\27\ 
to which the United States and Austria are parties, as the 
means of authenticating government or official records. As a 
result, official records provided by Austria under the Treaty 
and accompanied by the apostille required by the Convention are 
self-authenticating, thus creating a form of self-
authentication similar in effect to Rule 902 of the Federal 
Rules of Evidence.
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    \27\ Oct. 5, 1961, 33 U.S.T. 883, T.I.A.S. No. 10072.
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Article 10--Appearance in the Requesting State

    Paragraph 1 provides that the Requesting State is permitted 
to request the appearance of any person to assist in 
``investigations or proceedings'' in the Requesting State. It 
further provides that the Requested State shall extend an 
invitation to the person whose appearance is requested and 
obligates the Requested State to inform the Requesting State of 
the person's response. The intention is to establish a formal 
mechanism for inviting, not for compelling, an appearance for 
whatever purpose the appearance is requested. The United States 
typically will seek a person's appearance as a witness to 
testify before a grand jury or a grand jury or at trial. The 
text is written, however, to permit an invitation to appear for 
any purpose deemed necessary or useful by the Requesting State.
    When the United States seeks to have Austria invite person 
to appear in the United States, the United States Central 
Authority sends a letter of invitation through the Austrian 
Ministry of Justice. The person invited is free to decline and 
shall not be subject to any penalty for doing so or for failing 
to appear after agreeing to do so. This does not preclude the 
United States from using other channels for service on a United 
States citizen or resident located in Austria of a document 
such as a subpoena issued under Title 28, United States Code, 
Sections 1783-84. This subpoena may entail sanctions for 
failure to appear in the United States as directed by the 
subpoena.
    Paragraph 2 requires the Requesting State to ``indicate'' 
the extent to which the expenses of a person invited will be 
``reimbursed'' by the Requesting State. It further provides 
that the person who agrees to travel to the Requesting State 
for this purpose may request and receive advance money for 
related expenses. The advance can be obtained from the embassy 
or consulate of the Requesting State.

Article 11--Safe conduct

    Paragraph 1 provides explicit assurances that unless 
otherwise specified in the request, any witness or expert who 
appears in the Requesting State pursuant to a request for 
assistance shall not be ``subject to any civil suit to which 
the person could not be subjected but for his appearance in the 
Requesting State.'' It also provides that such a person 
appearing in the Requesting State shall not be ``prosecuted, 
punished, or subjected to any restriction of personal liberty'' 
for acts committed prior to his leaving the Requested State. 
According to the Austrian delegation, its law requires that 
these conditions be met before Austria may serve an invitation 
to appear in the United States pursuant to a Treaty 
request.\28\ These assurances do not protect the prospective 
witness from civil suits, prosecution, punishment or 
restriction of personal liberty with respect to acts committed 
after departure from the Requested State.
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    \28\ Austrian Mutual Assistance Law Sec. 53.
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    Paragraph 2 limits the safe conduct provided for in 
paragraph 1 to seven days. This period begins to run after the 
person is notified that the requested appearance is no longer 
required, and the person nevertheless remains in the Requesting 
State even though free to leave, or has voluntarily returned to 
the Requesting State.
    This article is intended to apply both to persons who are 
transferred while in custody pursuant to article 12 and to 
those who are not incarcerated and wish to appear.

Article 12--Transfer of persons in custody

    This article concerns requests for the appearance in the 
Requesting State of persons who are incarcerated in the 
Requested State. Similar provisions are common in United States 
mutual legal assistance treaties \29\ and have proved to be 
extremely useful. The enactment of Title 18, United States 
Code, Section 3508 provides the legal basis for the United 
States to arrange for such transfer to the United States.
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    \29\ See, e.g., U.S.-Switzerland Mutual Legal Assistance Treaty, 
May 25, 1973, art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 
61.
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    Paragraph 1 provides for the transfer to the Requesting 
State of a person in custody in the Requesting State for 
``purposes of assistance.'' The United States typically will 
seek a person's appearance as a witness to testify before a 
grand jury or at trial. The text as written, however, permits 
the issuance of an invitation to appear for any purpose deemed 
necessary or useful by the Requesting State. Before the 
transfer is granted, both the Central Authority of the 
Requested State and the person in custody must consent.
    Paragraph 2 provides for the transfer of a person in 
custody in the Requesting State to the Requested State for 
``purposes of assistance.'' Both Central Authorities must agree 
and the person in custody must consent. This provision is 
particularly useful to the United States when a defendant in 
custody desires to be present at a deposition to be taken in 
Austria.
    Paragraph 3(a) provides express authority for, and imposes 
an obligation upon, the receiving State to maintain the person 
transferred in custody until the purpose of the transfer is 
accomplished.
    Paragraph 3(b) imposes an obligation upon the receiving 
State to return the person transferred to the sending State. 
The person must consent only to the original transfer; no 
consent is needed to return the person to the sending State.
    Paragraph 3(c) provides that the sending State need not 
initiate extradition proceedings to secure return of the person 
transferred. This paragraph comports with Title 18, United 
States Code, Section 3508. Moreover, this provision is 
particularly helpful to the United States in the event that a 
person transferred from Austria to the United States files a 
habeas corpus claim seeking to avoid return to Austria in the 
absence of an extradition request.
    Paragraph 3(d) ensures that the person transferred is 
credited in the sending State for the time spent in custody in 
the receiving State.

Article 13--Location or identification of persons or items

    This article requires each Contracting Party to use its 
``best efforts'' to locate or identify persons (e.g., 
witnesses) or items (e.g., evidence) ``necessary for the 
execution of a request made under this Treaty.'' The Austrian 
negotiators made clear that this provision does not authorize 
the use of the Treaty as a means for locating a fugitive who 
would then become the subject of a request for extradition. The 
negotiators contemplated that ``best efforts'' will vary 
depending on the information provided in the request in 
accordance with article 4. When little information is provided 
(e.g., when a request merely states that a potential witness 
may be located in the Requested State), the Requested State is 
not expected to do much. As the level of information increases, 
so does the obligation to search for the person or item.

Article 14--Service of documents

    Paragraph 1 requires the Requested State to use its ``best 
efforts'' to serve documents on persons within its territory 
pursuant to a request for assistance under the Treaty. ``Best 
efforts'' will vary depending on the information provided in 
the request in accordance with article 4. The delegations 
agreed that the Treaty is intended to provide a method of 
providing service without ruling out other methods. For 
example, the Treaty does not take away Austria's ability to 
serve persons in the United States directly by mail.
    In executing Austrian requests for service in the United 
States, service will be made by registered mail unless Austria 
asks for personal delivery, in which instance service typically 
will be made by the United States Marshals Service. Service in 
Austria usually will be made by mail, unless the United States 
specifies that another form is necessary, in which case 
Austrian authorities should be able to accommodate the request.
    Paragraph 2 requires that a request for the appearance of a 
person before an authority of the Requesting State must be 
transmitted to the Requested State within a ``reasonable time'' 
before the scheduled appearance. The particular circumstances 
of each request determine whether the Requesting State meets 
this standard. It is understood that both Central Authorities 
will attempt to find in favor of the Requesting State in 
applying the standard.
    Paragraph 3 requires that the Requested State return proof 
of service in the manner indicated by the Requesting State.
    Paragraph 4 provides that a national of the Requested State 
or a person with status equal to that of a national will not be 
sanctioned for failure to respond to a summons to appear in the 
Requesting State and will not be subject to compulsory process 
to effect the appearance.

Article 15--Search and seizure

    Judicial authorities in Austria and in the United States 
have the power to compel a person to appear and produce 
evidence. Therefore, the negotiators anticipated that requests 
for the production of physical evidence normally will be 
executed pursuant to article 8. In situations when a subpoena 
duces tecum or demand for production is inadequate, however, 
this article permits a search and seizure.
    Paragraph 1 states that ``any item, including but not 
limited to any document, record, or article of evidence,'' 
shall be subject to search and seizure in the Requested State. 
This language conveys the intention that any physical evidence 
that could be useful to a criminal prosecution qualifies for 
search and seizure. Search and seizure authority is limited by 
the law of the Requested State. In other words, the Requesting 
State must provide the Requested State with ``information 
justifying such action under the laws of the Requested State.'' 
For Austria, such information must include a statement that if 
the evidence were located in the Requesting State, an 
appropriate authority could compel production.
    For the United States to be able to execute a request for 
search and seizure on behalf of Austria, the Austrian request 
must contain information demonstrating ``probable cause'' as 
required by the Fourth Amendment to the United States 
Constitution. The Austrian request must contain facts, or be 
augmented by facts from a reliable source, that will persuade a 
United States judicial authority that probable cause exists to 
believe that a crime has been or is being committed over which 
Austria has jurisdiction and that clearly described evidence of 
the crime is located at a clearly described place to be 
searched in the United States.
    Paragraph 2 is designed to establish a chain of custody for 
evidence seized pursuant to a request and to provide a method 
for proving that chain by certificates admissible in a judicial 
proceeding in the Requesting State. The Requested State is 
required to maintain a reliable record, from the time of a 
seizure, of the ``identity of the item, continuity of custody, 
and the integrity of its condition.'' This record takes the 
form either of ``Form B,'' a custodian certificate which is 
appended to the Treaty, or a document that contains the 
essential information required by the Requesting State. Each 
successive custodian prepares a certificate which, when joined 
together with the other certificates from other custodians, 
provides a reliable trail tracing the item seized (and the 
integrity of its condition) in the Requested State to the 
judicial proceeding in the Requesting State in which it is to 
be introduced as evidence. If the judge in the Requesting State 
finds that the process is trustworthy, the judge may admit as 
authentic the evidence with the certificates. The judge is free 
to deny admission of the evidence in spite of the certificates 
if some other reason exists to do so aside from authenticity. 
For the United States, this provision is intended to limit the 
need to bring Austrian officials to the United States to 
testify to those situations when the reliability of the 
evidence (its origin or condition) is in serious question.
    Paragraph 3 permits the Requested State, as a matter of 
discretion, to protect the rights of third parties in items 
seized. The negotiators intended that the Requested State, in 
using its discretion to impose conditions, should do so only to 
the extent ``deemed necessary.'' This paragraph is not intended 
to serve as an impediment to the transfer of items seized.

Article 16--Return of items

    This article requires that upon request by the Central 
Authority of the Requested State, the Central Authority of the 
Requesting State shall return as soon as possible ``any 
documents, records, or articles of evidence'' provided by the 
Requested State pursuant to the Treaty.\30\
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    \30\ Cf. Austrian Mutual Assistance Law Sec. 52.
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Article 17--Assistance in forfeiture proceedings

    This article is designed to permit assistance, to the 
extent permitted by the laws of both Contracting Parties, in 
the developing area of asset freezes, forfeitures, and 
restitution. The negotiators, therefore, considered this 
provision to be of particular importance to law enforcement 
efforts, especially in the war against narcotic drug 
trafficking. A modern trend in law enforcement is to focus 
attention on the proceeds of crime and actively to seek to 
ensure that the money, property, and other proceeds of crime 
are seized and confiscated by the government or returned to the 
victims of the crime.
    Paragraph 1 provides that each Central Authority has 
discretion to notify the other regarding proceeds of crime 
located in the territory of the other. This is a notification 
provision only. Upon notification, the Central Authority of the 
Contracting Party in which the proceeds are located may take 
whatever action is appropriate under its law. If the 
Contracting Party in which the proceeds are located takes any 
action with regard to forfeiture and/or seizure of the 
property, its Central Authority shall report the action taken 
to the other Central Authority.
    Paragraph 2 imposes an obligation upon each Contracting 
Party to assist the other in proceedings relating to the 
forfeiture of the ``fruits and instrumentalities of offenses, 
restitution to victims of crime, and the collection of fines 
imposed as sentences in criminal prosecutions.'' The phrase 
``fruits and instrumentalities of offenses'' includes money, 
securities, jewelry, automobiles, vessels, and any other items 
of value used in the commission of the crime or obtained as a 
result of the crime.
    The obligation to assist is a limited one, carefully 
crafted to require action only to the extent permitted by the 
law of either Contracting Party. If the law of the Requested 
State enables it to seize assets in aid of a proceeding in the 
Requesting State or to enforce a judgment or forfeiture in the 
Requesting State, then the Treaty encourages the Requested 
State to do so. However, the obligation does not require a 
Contracting Party to initiate legal proceedings on behalf of 
the other, but only to assist the other with its proceedings. 
As suggested by paragraph 1, institution of forfeiture 
proceedings in a Contracting Party against assets located there 
remains a decision for its appropriate authorities. United 
States law provides for the possibility of forfeiture of the 
proceeds of crime even before a person has been accused of the 
crime. Similarly, Austrian law provides for procedures whereby 
an item may be seized in the absence of a named defendant.
    With respect to restitution, the negotiators discussed 
whether the Contracting Parties can collect fines and make 
restitution to a victim. Specifically, the negotiators 
considered whether the Contracting Parties are able to move 
against assets of a person who defrauded a victim of money in 
order to make the victim whole. In both the United States and 
Austria, the victim may file a civil suit and may only seek the 
return of the actual fraud proceeds; the victim may not 
substitute an accused person's assets for the value of the 
fraud.
    Paragraph 3 provides for the disposition of forfeited 
proceeds or property. Such disposition shall be in accordance 
with the law of the Requested State. This provision also states 
that the Requested State may keep the forfeited assets or share 
them with the Requesting State.
    United States law permits the transfer of forfeited 
property or a portion of the proceeds of the sale thereof to 
any foreign country that participated directly or indirectly in 
the seizure or forfeiture of the property.\31\ The amount 
transferred generally reflects the contribution of the foreign 
government in the law enforcement activity that led to the 
seizure or forfeiture of the property under United States law. 
United States sharing statutes require that the transfer 
recommended by the Attorney General or the Secretary of the 
Treasury be authorized in an international agreement between 
the United States and the foreign country, and be agreed to by 
the Secretary of State. Article 17 is intended to authorize and 
provide for the transfer of forfeited assets or the proceeds of 
such assets to Austria pursuant to United States sharing 
statutes to the extent permitted by law.
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    \31\ E.g., 18 U.S.C. Sec. 981(i)(1).
---------------------------------------------------------------------------

Article 18--Compatibility with other treaties, agreements, or 
        arrangements

    This article is a standard treaty provision designed to 
protect alternative channels of assistance between the 
Contracting Parties. In other words, the Treaty is not the 
exclusive channel for seeking mutual legal assistance in 
criminal matters. Although the negotiators anticipated that 
once in operation, the Treaty will become the mechanism of 
choice, they also recognized that competent authorities in 
either Contracting Party may continue to make requests in 
accordance with their domestic laws, other bilateral treaties 
and agreements, and applicable multilateral conventions. The 
Treaty, therefore, leaves the other mechanisms undisturbed and 
available for use.

Article 19--Consultation

    This article obliges the Contracting Parties to consult 
with one another for the purpose of improving the effectiveness 
of the Treaty's implementation. The Central Authorities of 
either Contracting Party may initiate the consultations. 
Consultations usually will entail the discussion of specific 
requests, such as an exchange of information on the 
transmission and execution of requests.
    Experience has shown that as the Central Authorities of a 
treaty work together, they become aware of practical ways to 
make implementation of the treaty more effective and their own 
efforts more efficient. Periodic or regular consultations 
provide a forum for initiating improvements in the Treaty's 
implementation.

Article 20--Ratification, entry into force, and termination

    This article concerns the procedures for ratification, 
exchange of instruments of ratification, and entry into force 
of the Treaty.
    Paragraph 1 concerns the procedure for ratification and 
exchange of instruments of ratification.
    Paragraph 2 provides that the Treaty ``shall enter into 
force on the first day of the third month following the month 
of the exchange of instruments of ratification.''
    Paragraph 3 states that once in force, the Treaty will be 
applicable to all offenses, regardless of when the offense 
occurred.
    Paragraph 4 establishes that the Treaty will terminate six 
months from the date of receipt by one Contracting Party of 
written notification from the other Contracting Party.

              VIII. Text of the Resolution of Ratification

    Resolved, (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of The Treaty Between the Government of the United 
States of America and the Government of the Republic of Austria 
on Mutual Legal Assistance in Criminal Matters, signed at 
Vienna on February 23, 1995. The Senate's advice and consent is 
subject to the following two provisos, which shall not be 
included in the instrument of ratification to be signed by the 
President:

          Nothing in the Treaty requires or authorizes 
        legislation or other action by the United States of 
        America that is prohibited by the Constitution of the 
        United States as interpreted by the United States.
          Pursuant to the rights of the United States under 
        this Treaty to deny requests which prejudice its 
        essential public policy or interest, the United States 
        shall deny a request for assistance when the Central 
        Authority, after consultation with all appropriate 
        intelligence, anti-narcotic, and foreign policy 
        agencies, has specific information that a senior 
        government official who will have access to information 
        to be provided under this Treaty is engaged in a 
        felony, including the facilitation of the production or 
        distribution of illegal drugs.