[Senate Executive Report 104-25]
[From the U.S. Government Publishing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-25
_______________________________________________________________________


 
   TREATY WITH HUNGARY 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. 104-20]

    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 Hungary on Mutual 
Legal Assistance in Criminal Matters, signed at Budapest on 
December 1, 1994, 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 December 1, 1994, the United States signed a treaty with 
Hungary on mutual assistance in criminal matters and the 
President transmitted the Treaty to the Senator 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.
    States 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 
Urugray. MLATs not in force but ratified by the United States include 
those with Belgium, Colombia, 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 possess 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 embassies 
abroad), requests through Interpol, requests 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 they will accept and execute. 
In some countries (e.g., Japan and Germany) the acceptance of 
such requests 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 no assurance that informal means 
will be available or that information received through them 
will be admissible in court.
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    \10\ Notwithstanding foreign objections, unilateral methods such as 
issuing subpoenas on domestic branches may actually have promoted the 
negotiation of MLATs. According to one commentator, ``the principal 
incentive for many foreign governments to negotiate MLATs with the 
United States was, and remains, the desire to curtail the resort by 
U.S. prosecutors, police agents, and courts to unilateral, 
extraterritorial means of collecting evidence from abroad.'' E. 
Nadelmann, Cops Across Boarders: The Internationalization of U.S. 
Criminal Law Enforcement 315 (1993) [hereinafter cited as Nadelmann].
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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 not all, 
MLATs have covered a broad range of crimes with no 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 criminal the fruits and 
the instrumentalities of their crimes.

                    B. Summary of Primary Provisions

1. Types of proceedings

    MLAts generally call for assistance in criminal 
investigations and proceedings. This coverage often is 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 trial. Most recent MLATs also cover civil and 
administrative proceedings--forfeiture proceedings, for 
example--related to at least some types of prosecutions, most 
frequently those involving drug trafficking. However, the scope 
of some MLATs have been more circumscribed than the proposed 
treaty.
    The Hungary Treaty states that the parties shall provide 
mutual assistance ``in connection with the prevention, 
investigation and prosecution of offenses, and in proceedings 
related to criminal matters'' (art. 1).

2. Limitations of 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 Hungary Treaty, assistance may be denied if a 
request relates to a political offense. 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 the 
sovereignty, national security or other essential interest of 
the requested State. A final reason for denying assistance is 
that it fails to comply with requirements for form and 
contents. 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 circuity 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; (3) a 
description of the evidence or other assistance being sought; 
and (4) the purpose for which the assistance is 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 typically 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 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 request 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 Hungary MLAT (art. 8) 
expressly recognizes that a person whose testimony is compelled 
may raise objections based on the law of the Requested State 
and that these objections are to be resolved by the local 
judicial authorities.
    With respect to questioning a witness by a person specified 
in the request, the proposed MLAT with Hungary 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 service provisions 
of the MLAT under consideration is broader than some of those 
under MLATs currently in force. Provisions under some earlier 
MLATs 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.
            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 proposed 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. 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 makes some express provision for immunity 
from process and prosecution for individuals appearing in the 
Requesting State in accordance with a treaty request. The 
Hungary MLAT (art. 12) leaves immunity, which can apply to all 
acts committed prior to departure from the requested State, to 
the discretion of the requesting State without requiring that 
the scope of immunity be set out in the request. 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 Hungary 
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.
            Location of persons or items
    In whole or in part, MLAT requests most often require the 
Requested States 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 even 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, MLATs 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 responded:

          There are no legal challenges to any of our existing 
        MLATs. It is the position of the Department of Justice 
        that the MLATs 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 ahead, 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:

          One 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 prosecutor 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 now 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 
                                hungary

    On December 1, 1994, the United States and the Republic of 
Hungary signed the Treaty on Mutual Legal Assistance in 
Criminal Matters (``the Treaty''). 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.
    The Treaty is a major step forward in the formal law 
enforcement relationship between the United States and Hungary. 
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.
    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 
negotiations.

Article 1--Scope of obligation to provide assistance

    Paragraph 1 provides for assistance ``in connection with 
the prevention, investigation, and prosecution of offenses, and 
in proceedings related to criminal matters.'' By this 
provision, the negotiators specifically agreed to provide 
Treaty assistance at any stage of a criminal matter. For the 
United States, this includes not only police-to-police 
cooperation before a crime is committed, a grand jury 
investigation, a criminal trial and a sentencing proceeding, 
but also 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. The Treaty also covers any proceeding, whether 
labeled civil or administrative, that relates to a 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 
crime (e.g., drug trafficking) or for disgorgement proceedings 
brought by an administrative agency (e.g., the Securities and 
Exchange Commission) to recover the profits from illegal 
practices.
    Paragraph 2 lists the types of assistance that were 
specifically considered by the negotiators. Most of the items 
are described in greater detail in subsequent articles. The 
list is not exhaustive, as is indicated by the language 
``assistance shall include'' in the paragraph's chapeau and is 
reinforced by the phrase in item (i) indicating that the Treaty 
covers ``any other form of assistance not prohibited by the 
laws of the Requested State.''
    Paragraph 3 specifies that the principle of dual 
criminality--the obligation of the Requested State to provide 
assistance only when the criminal conduct committed in the 
Requested State would also constitute a crime if committed in 
the Requested State--is generally inapplicable. 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. The negotiators 
discussed at length the applicability of paragraph 3 when the 
United States makes requests to Hungary for searches and 
seizures pursuant to article 15. The negotiators agreed that 
when no dual criminality exists, the Requesting State may not 
suggest a particular means of compelling the evidence, except 
in rare instances. As a general rule, therefore, the Requested 
State must rely on article 8, which contemplates the use of 
subpoenas rather than searches and seizures to execute requests 
seeking the compulsion of items including but not limited to 
documents, records and articles of evidence. (Article 8, which 
is discussed more thoroughly later in this analysis, provides 
for the taking of testimony or evidence in the Requested 
State.)
    Paragraph 4, a standard provision in United States mutual 
legal assistance treaties, expresses the clear intention of the 
negotiators that the Treaty is solely for government-to-
government mutual legal assistance. The negotiators explicitly 
agreed that the Treaty is not available for use by private 
counsel representing criminal defendants or 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 Hungary by letters rogatory, an avenue of 
international assistance that the Treaty leaves undisturbed. 
Similarly, the Treaty is not intended to create any right in a 
private person to suppress or exclude evidence provided 
thereunder.

Article 2--Central authorities

    Paragraph 1 requires that each Contracting Party designate 
a ``Central Authority'' to ``make and receive'' Treaty 
requests. Although the Central Authorities exercise differing 
degrees of control and responsibility over the preparation of 
such requests (as to both form and content), only the Central 
Authorities may ``make'' the requests.
    The Central Authority for the United States makes requests 
to Hungary on behalf of competent federal, state and local 
authorities in the United States (i.e., authorities statutorily 
charged with the responsibility of investigating criminal 
activity for the purpose of criminal prosecution or referral 
for criminal prosecution). Likewise, only the Central 
Authorities ``receive'' requests. Requests not made by and 
transmitted through the Treaty channel are not considered 
Treaty requests and are not entitled to execution pursuant to 
the Treaty.
    Paragraph 2 provides that the Attorney General or such 
persons designated by the Attorney General act as 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.\13\
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    \13\ 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 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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    For Hungary, the Minister of Justice and the Chief Public 
Prosecutor, or persons designated by them, act as dual Central 
Authorities. This dual arrangement for Hungary reflects the 
importance and independence of the Office of the Chief Public 
Prosecutor (``the Public Prosecutor's Office) in the Hungarian 
criminal justice system. Both the Hungarian Constitution and 
the Hungarian Criminal Code of Procedure designate distinct and 
separate responsibilities to the Ministry of Justice and the 
Public Prosecutor's Office. The Public Prosecutor's Office is 
responsible for handling requests to and from foreign 
authorities for assistance in criminal matters at the 
investigative stage, while the Ministry of Justice is 
responsible for handling these requests at the prosecutive 
stage.
    The Hungarian Criminal Code of Procedure specifically 
states that ``[i]n cases of legal assistance in criminal 
matters, the authorities of investigation will communicate with 
foreign authorities through the Chief of the Public Prosecutor 
and the Hungarian courts through the Ministry of justice.'' 
\14\ (The ``authorities of investigation'' refer to police and 
prosecutors.) As a result, the Public Prosecutor's Office will 
submit requests, on behalf of the police and prosecutors, to 
the United States when seeking evidence on pre-indictment 
matters, and the Ministry of Justice will submit requests, on 
behalf of Hungarian courts, to the United States in post-
indictment matters.
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    \14\ Hungarian Criminal Code of Procedure, art. 394, para. 3.
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    The United States, on the other hand, will submit all 
Treaty requests directly to the Hungarian Ministry of Justice. 
The Ministry of Justice will determine whether to coordinate 
execution of the request of whether to have the Public 
Prosecutor's Office execute the request. If the Ministry of 
Justice determines that the Public Prosecutor's Office should 
execute the request, it will forward the request to that office 
for execution. This procedure will protect the United States 
Central Authority from having to make determination as to which 
Hungarian Central Authority the request should be sent. In 
summary, although the concept of dual Central Authorities is 
somewhat unique among our treaty partners in the mutual 
assistance filed, no practical problems with implementation of 
the Treaty are anticipated because of the extremely close 
coordination between the Public Prosecutor's Office and the 
Ministry of Justice.
    Paragraph 3 provides that the Central Authorities may 
communicate directly with one another for purposes of making 
and executing requests.

Article 3--Limitations on assistance

    Paragraph 1 specifies that the Central Authority of the 
Requested State may deny a request for assistance if the 
request relates to a political or military offense. In 
addition, the Requested State may deny a request for assistance 
if its execution would prejudice the security or similar 
essential interests of the Requested State or if the request 
does not comply with the provisions of article 4. (Article 4, 
discussed later herein, provides requirements for the form and 
content of Treaty requests.) These restrictions are similar to 
those typically found in United States mutual legal assistance 
treaties. The negotiators anticipated that this provision will 
be invoked in the rarest and most extreme circumstances; the 
juxtaposition of ``similar essential interests'' with 
``security'' is intended to convey the concept of substantial 
national importance.
    Because the decision to deny assistance lies with the 
Central Authority, the Attorney General is to work closely with 
Department of State and other relevant agencies in determining 
whether to execute a request that involves ``security of 
similar essential interests.''
    Paragraph 2 imposes an obligation on the Central 
Authorities to consult before the Requested State may deny 
assistance. The consultation is designed to explore whether the 
Requested State could provide 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, and that the Requesting State either would agree to 
accept the conditions or the Requested State would deny the 
request. Once the Requesting State accepts assistance subject 
to 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 denying a request pursuant to 
paragraph 1. Although notification usually occurs after the 
consultations pursuant to paragraph 2, the Central Authority of 
the Requesting State may so advise the Central Authority of the 
Requested State prior to the consultations.

Article 4--Form and contents of requests

    Paragraph 1 requires that Treaty requests be in writing, 
except that the Central Authority of the Requested State may 
accept a request in another form ``in urgent situations.'' An 
example of the kind of ``urgency'' the negotiators considered 
would be efforts to block the imminent transfer of drug 
proceeds from the Requested State to a third country. If the 
Central Authority of the Requested State accepts an oral 
request, the Requesting State must provide a written request 
within ten days unless the Central Authority of the Requested 
State specifies otherwise.
    Paragraphs 2 and 3 similar to provisions in other United 
States mutual legal assistance treaties specifying the contents 
of a request.\15\ Paragraph 2 lists information that is 
required in every case both for evaluation and execution of the 
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 
execution will entail.
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    \15\ 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. --.
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    Paragraph 3 outlines the kinds of information that must be 
provided ``[t]o the extent necessary and possible.'' Depending 
on the assistance requested, certain additional information may 
be necessary and 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 necessary. A ``list of questions to be asked of 
the 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 each Contracting Party to perform 
diligent efforts in promptly executing Treaty requests. If the 
Central Authority is not competent to execute a request, it 
promptly must transmit the request to a competent authority for 
execution.
    For Hungary, the Ministry of Justice first determines 
whether it or the Public Prosecutor's Office is the competent 
authority to coordinate the execution of the request. The 
appropriate Central Authority then determines whether the 
request complies with the terms of the Treaty and whether its 
execution would prejudice the security or other essential 
interests of Hungary. If the request merits execution, the 
appropriate Central Authority transmits the request to an 
appropriate competent authority for that purpose.
    The procedure is similar for the United States, except that 
the United States Central Authority usually transmits 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 a competent 
authority selected by the Central Authority to take such action 
as is necessary and within its power to execute the request. In 
Hungary, execution of requests almost exclusively falls 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 Hungary 
requires compulsory process for execution, it is anticipated 
that the competent authority in the United States will issue 
the necessary compulsory process itself \16\ or will ask other 
competent authorities to do so. Competent authorities for both 
Contracting Parties are bound to do ``everything in their 
power'' to execute the requests.
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    \16\ For example, the Securities and Exchange Commission has the 
power to issue compulsory process to obtain evidence for execution of a 
request for assistance from certain foreign authorities.
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    Paragraph 1 also authorizes the ``judicial authorities'' of 
each Contracting Party to ``issue subpoenas, search warrants, 
or other orders necessary to execute'' requests made under the 
Treaty. For Hungary, ``judicial authorities'' contemplates both 
the courts and the public prosecutors, as both the courts and 
the public prosecutors have the power to issue subpoenas and 
search warrants. In the United States, ``judicial authorities'' 
only refers to the courts, as only the courts have the power to 
issue subpoenas and search warrants. In the United States, 
judicial authorities (i.e., courts) will be called upon to 
exercise their authority pursuant to an application for 
execution of a request.\17\ Typically, the court appoints and 
authorizes a commissioner to issue subpoenas in executing the 
request. The court may also instruct the commissioner to appear 
before the court to request orders to enforce the subpoenas or 
searches and seizures, to the extent that ``probable cause'' 
exists, or to freeze the proceeds of a crime.
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    \17\ The Treaty is intended to be self-executing for the United 
States; no new legislation is necessary to carry out the obligations 
undertaken.
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    Paragraph 2 reconfirms that the Central Authority of the 
Requested State must 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, typically a federal prosecutor, to present the 
matter to a court. Thereafter, the prosecutor represents the 
United States in acting to fulfill its obligations under the 
Treaty by executing the request. Upon receiving the court's 
appointment as a commissioner, the prosecutor acts as the 
court's agent in fulfilling the court's responsibility to do 
``everything in its power'' to execute the request. In short, a 
prosecutor who requires the use of compulsory measures must act 
in conjunction with a court.
    The procedure for executing Treaty requests in Hungary is 
different. If the request falls under the competence of the 
Ministry of Justice, the Ministry of justice transmits the 
request to the appropriate court which will execute the 
request. If the request falls under the competence of the 
Public prosecutor's Office, that office assigns the request to 
a prosecutor, who will execute the request. The prosecutor has 
authority to order compulsory process, such as requiring a 
witness to appear to provide testimony, without having to 
obtain authority from a court. In other words, unlike in the 
United States, a prosecutor in Hungary possesses the same 
authority to compel testimony or the production of documents as 
Hungarian courts. A Hungarian prosecutor therefore may execute 
a foreign request seeking compulsory process without the 
assistance of Hungarian courts.
    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 the 
respective Contracting Parties in executing requests for legal 
assistance and agreed to accommodate any specific procedures 
requested by the other to the extent permitted under the laws 
of the Requested State or as discussed with respect to specific 
Treaty provisions.\18\
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    \18\ See, e.g., U.S.-Hungarian Mutual Legal Assistance Treaty, Dec. 
1, 1994, art. 8, T.I.A.S. No. --.
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    Paragraph 4 contemplates the situation in which execution 
of a request would interfere with an ``ongoing criminal 
investigation, prosecution, 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 of the 
request or to execute the request subject to conditions agreed 
upon with the Requesting State to protect the Requested State's 
investigation, prosecution or proceeding. This provision does 
not permit denial of assistance, which is covered separately 
under article 3 and elsewhere in the Treaty.\19\ 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. Accordingly, the Requesting State will not 
be seriously disadvantaged by having to wait for the evidence 
until the conclusion of the investigation, prosecution or 
proceeding in the Requested State. When the Central Authority 
of the Requested State permits execution under specified 
conditions, and the Requesting State agrees to the conditions, 
it must comply with them.
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    \19\ See, e.g., U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 
1, 1994, art. 9(2), T.I.A.S. No. --.
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    Paragraph 5 requires that the Requested State use its 
``best efforts'' to safeguard any confidentiality requested by 
the Requesting State with respect to the fact that a request 
was made and the contents of the 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 so that the Requesting State may 
consider withdrawing the request rather than risk jeopardizing 
its investigation, prosecution or proceeding by disclosure.
    Paragraph 6 obligates the Central Authority of the 
Requested State to respond to ``reasonable'' status inquiries. 
``Reasonable'' is not defined; the negotiators believed that 
the Central Authorities will develop a practical method of 
providing current information on a timely basis.
    Paragraph 7 obligates the Central Authority of the 
Requested State to notify the Central Authority of the 
Requesting State of the outcome of the execution of a request. 
Usually, this will occur at the time 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 
any reasons therefor. In the context of this paragraph, a 
``denial'' is a failure of the system to successfully execute 
the request, not a denial under article 3, for which 
notification is already required by article 3(3). When a denial 
consists of the refusal of a judicial authority in the 
Requested State to execute a request that qualifies for 
assistance under the Treaty, the Central Authority of the 
Requested State is obliged to act. The United States Central 
Authority will recommend that the appropriate authorities 
within the Department of Justice, who are responsible for 
appealing adverse judicial decisions to higher courts, appeal 
the denial. Similarly, both the Hungarian Minister of Justice 
and the Chief Public Prosecutor will recommend that authorities 
within their respective departments who are responsible for 
appealing adverse judicial decisions (of both courts and 
prosecutors) appeal the denial to a higher judicial authority.

Article 6--Costs

    This article obligates the Requested State to pay all costs 
``relating to'' or ordinarily associated with the execution of 
a request, with the exception of those enumerated in the 
article: (1) fees of expert witnesses; (2) translation, 
interpretation and transcription costs; and (3) specified 
travel expenses. Costs ``relating to'' execution include costs 
normally incurred in transmitting a request to the executing 
authority, notifying witnesses and arranging for their 
appearances, producing copies of evidence and conducting a 
proceeding to compel execution of the request.
    The negotiators agreed that costs ``relating to'' execution 
do not include, for example, expenses associated with the 
travel of investigators, prosecutors, defense counsel or 
judicial authorities to question a witness or take a deposition 
in the Requested State pursuant to article 8(3). Moreover, the 
negotiators agreed that the costs associated with securing a 
videotape of a witness's testimony or of a proceeding, or with 
other technological means of preserving evidence (e.g., costs 
of ``transcription'') are to be paid by the Requesting State. 
In addition, the negotiators specifically agreed that 
interpretation services will be paid for by the Requesting 
State. The need for interpretation services might arise, for 
example, if a Requesting State invites a witness in the 
Requested State to travel to the Requesting State to provide 
testimony, and the witness refuses. The Requesting State then 
might ask the Requested State to conduct a deposition, which 
would involve a court reporter, an interpreter and a 
translator. The negotiators anticipated that these services 
will be paid for by the Requesting State.

Article 7--Limitations on use

    Paragrah 1 concerns the rule of specialty, the principle 
that a Requesting State may use assistance provided under a 
treaty only for the purposes for which it was requested and 
provided. However, in the Treaty, this rule is discretionary: 
the rule of specialty does not apply unless the Requested State 
invokes it. As a practical matter, this is not very important 
inasmuch as the Treaty does not contain a dual criminality 
requirement for granting assistance. The Central Authority of 
the Requested State ``may require'' that any evidence or 
information it provides to the Requesting State ``not be used 
in any investigation, prosecution, or proceeding'' other than 
that for which it was requested unless the Requested State 
gives prior consent.\20\ This provision may be used, for 
example, when a Requesting State asks for assistance to prove 
theft of government property and espionage. Unless the 
Requested State imposes the limitation, the Requesting State 
may use the assistance in an espionage case even though the 
Requested State could have denied assistance requested for that 
purpose as a political offense exception pursuant to article 3.
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    \20\ This language is similar to a provision present in the U.S.-
Netherlands Treaty. June 12, 1981, art. 11(2), T.I.A.S. No. 10734, 1359 
U.N.T.S. 209.
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    Paragraph 2 permits the Central Authority of the Requested 
State to ask that specific information or evidence furnished in 
response to a request be kept confidential or be used subject 
to specified conditions.\21\ The delegations agreed that ``best 
efforts'' is not a guarantee, however, as certain situations 
will require that evidence be disclosed. For example, United 
States law requires the disclosure to defense counsel of 
evidence exculpatory to the accused.\22\ This is consistent 
with the overall purpose of the Treaty--the production of 
evidence for trial--which would be frustrated if the Requested 
State permits the Requesting State to see valuable evidence but 
imposes restrictions on its use. In the event that the United 
States is required to disclose evidence obtained under the 
Treaty after having assured Hungary it would use its best 
efforts to maintain its confidentiality, the United States must 
consult with the government of Hungary prior to disclosure in 
order to devise a method of disclosure acceptable to both 
Contracting Parties.
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    \21\ 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 Requested State to use, its ``best 
efforts'' to maintain confidentiality with respect to a request and its 
contents.
    \22\ See Brady v. Maryland, 373 U.S. 83 (1963).
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    Paragraph 3 provides that once information or evidence 
becomes publicly available 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'' would protect confidentiality up to the 
point that it is maintained by the courts in the Requesting 
State. However, as the primary purpose of the Treaty is to 
provide evidence for the prosecution of offenses, some evidence 
that the Requested State asked be kept confidential may be 
revealed to the public when introduced at trial or otherwise 
disclosed as part of related judicial proceedings (e.g., for 
the United States, as part of the plea or sentencing process).

Article 8--Testimony or evidence in the Requested State

    Articles 8 through 17, which are typical provisions in 
other United States mutual legal assistance treaties, describe 
specific types of assistance available pursuant to the Treaty. 
Article 8 requires that each Contracting Party permit the 
taking of testimony and gathering of evidence on behalf of the 
other Contracting Party.
    Paragraph 1 obligates the Requested State to compel persons 
to appear and testify or to produce evidence requested by the 
Requesting State. Judicial authorities in both Contracting 
Parties have the power to compel testimony and the production 
of documents from individuals and companies in connection with 
both domestic and foreign proceedings. In the United States, a 
prosecutor asks a court for an appointment as a commissioner 
with the authority to execute subpoenas on behalf of the 
foreign authority. In Hungary, public prosecutors issue 
``letters of citation'' ordering the individual to provide the 
testimony or documents. These letters of citation have the same 
force as a United States subpoena issued by a judge. 
Nevertheless, the Hungarian delegation agreed that if United 
States authorities specifically requested that the ``letter of 
citation'' be issued by a Hungarian court rather than a public 
prosecutor, the Hungarian authorities could and would comply 
with this request.
    With regard to compelling the production of bank records on 
behalf of a foreign government, the process in the United 
States is the same as that for compelling testimony or 
documents, as described above. In Hungary, however, the process 
is slightly different. Hungarian law specifies that a public 
prosecutor may compel the production of bank records by sending 
the bank an official letter,\23\ which is different in form and 
content from a ``letter of citation.'' The effect of it, 
however, is the same as that of a ``letter of citation.'' Upon 
receipt of the official letter, the bank is required by law to 
comply with the request for the production of documents.
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    \23\ There is no technical term in Hungarian law for the official 
letter that a Hungarian public prosecutor sends to a bank to compel the 
production of bank records.
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    The delegations discussed the penalties applicable for 
failure to comply with a subpoena in the United States and a 
``letter of citation'' or an ``official letter'' in Hungary. In 
the United States, a person or company failing to comply with a 
subpoena may be fined and/or imprisoned. In Hungary, a person 
or company failing to comply with a ``letter of citation,'' or 
a bank failing to comply with an official letter, may be 
subject to a fine or multiple fines in amounts considered 
substantial by Hungarian standards. Imprisonment, however, is 
not a penalty under Hungarian law for failure to comply with 
either a ``letter of citation'' or an official letter seeking 
compulsory measures.
    The delegations agreed that as a general rule, both 
Contracting Parties will use paragraph 1, rather than article 
15, to compel the production of documents, particularly in 
cases in which dual criminality does not exist.\24\ Both 
delegations recognized that searches and seizures are serious 
compulsory measures affecting the rights of private 
individuals; the delegations therefore agreed that searches and 
seizures would be used as a last resort. Instead, the Requested 
State first will attempt to compel the production of documents, 
records and articles of evidence sought by the Requesting State 
by using subpoenas in the Unites States and ``letters of 
citation'' and official letters in Hungary.
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    \24\ See supra analysis of art. 1.
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    Paragraph 2 requires the Central Authority of the Requested 
State to 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 the United States prosecutors sometimes rely 
heavily on deposition testimony when a witness is unwilling or 
unable to travel to the United States to testify at trial. With 
an assurance of receiving advance notice, however, a United 
States trial court can order that a deposition take place in 
Hungary on a date to be specified by Hungarian authorities; the 
United States court can even indicate a preferred date. The 
Hungarian authorities should attempt to accommodate the court 
and must notify the court sufficiently in advance of the 
depositions to permit the parties to be present.
    Paragraph 3 guarantees that the persons ``specified in a 
request'' be allowed to be present during the execution of that 
request. For the United States, the persons so specified may 
include prosecutors, investigators, court reporters, 
translators, interpreters, defendants and defense counsel.
    The presence of a stenographer 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 of 
the testimony (as is the practice in civil law jurisdictions). 
A verbatim transcript permits the trier of fact to analyze 
testimony provided under circumstances resembling the 
testifying of a witness who appears in person.
    For Hungary, the persons so specified include the public 
prosecutor and/or police authorities, if the case is in the 
investigative stage, or the judge or someone designated by the 
judge, if the case is in the prosecutive stage. It is possible 
in theory that if a Hungarian judge designates the public 
prosecutor to travel to the United States for the taking of a 
deposition which a defense counsel also wants to attend, the 
judge might designate the defense counsel to attend also. The 
Hungarian negotiators indicated that in practice, however, the 
judge would designate only a prosecutor to travel to the United 
States for the purpose of participating in depositions.\25\
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    \25\ Article 1(4) specifically prohibits defense counsel from using 
the provisions of Treaty to present requests to the United States. An 
example is a request that defense counsel be permitted to attend an 
interview scheduled in the United States. The Hungarian delegation, 
however, explained that defense counsel may ask a Hungarian judge for 
permission to travel to the United States. As a practical matter, 
however, a Hungarian judge will not authorize defense counsel to travel 
to the United States to attend interviews.
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    In keeping with the desire of United States courts to 
preserve out-of-court testimony in a manner resembling, as 
closely as possible, testimony in a proceeding in the United 
States, both delegations agreed that a request may also specify 
the presence of video technicians. Hungarian law, however, has 
not addressed whether a Hungarian judge has the authority to 
order a witness to submit a videotaped deposition if the 
witness is unwilling to do so. Moreover, even if the witness is 
willing to submit to a videotaped deposition, the Hungarian 
judge may not be willing to conduct the deposition as a 
videotaping is completely foreign to the Hungarian judicial 
process.
    In the United States, the presence of the defendant and 
defense counsel at a deposition accords the defendant the 
opportunity to confront and question an adverse witness. 
Neither delegation foresaw any problems in accommodating the 
requirements of the right to confrontation.
    Paragraph 4 permits a witness whose testimony or evidence 
is sought to assert those claims of privilege, immunity or 
incapacity that are available under the law of either 
Contracting Party. The executing authority in the Requested 
State, however, may rule only on those claims made under the 
law of the Requested State. The executing authority notes those 
claims made under the law of the Requesting State but defers to 
the appropriate authority in the Requesting State to rule on 
the merits. The taking of testimony or evidence therefore can 
continue in the Requested State without delaying or postponing 
the proceeding whenever issues involving the law of the 
Requesting State arise. Both Contracting Parties recognize the 
privilege of a witness against self-incrimination. Hungary, 
unlike the United States, also recognizes the privilege of a 
nuclear family member not to testify against the defendant. In 
addition, Hungary also recognizes a privilege for bankers; 
however, if a public prosecutor orders the production of bank 
records, the bank cannot refuse because an order from a public 
prosecutor overcomes the banker's privilege.
    Paragraph 5 is intended primarily for the benefit of the 
United States. The United States evidentiary system requires 
that evidence that is to be introduced in a legal proceeding be 
authenticated as a precondition to admissibility. 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 were primarily 
concerned with business records. In order to ensure the United 
States that business records provided by Hungary pursuant to 
the Treaty can be authenticated in a manner consistent with 
United States law, the negotiators crafted ``Form A,'' which 
follows the language of Title 18, United States Code, Section 
3505. If the Hungarian authorities properly complete, sign and 
attach Form A to documents produced, a United States judge may 
admit the records into evidence without the testimony of a 
witness as to the authenticity of the documents. The process 
for admissibility provided by this paragraph constitutes an 
exception to the hearsay rule; it extends only to authenticity, 
not to relevance or materiality. Whether the evidence is 
admitted is a determination within the province of the judicial 
authority presiding at the trial.

Article 9--Official records

    Paragraph 1 obligates each Contracting Party to furnish to 
the other copies of publicly available materials in the 
possession of a ``governmental or judicial authority.'' For the 
United States, this includes executive, judicial and 
legislative units at the federal, state and local levels. For 
Hungary, this includes the executive and legislative units at 
the central and local government levels, as well as their 
judiciary units. In Hungary, the term ``government'' only 
refers to the central government, not the local government as 
well. The local government is referred to as the 
``administrative'' unit. Therefore, in order to ensure that 
this provision covers both central and local governments in 
Hungary, the Hungarian text of the Treaty specifically mentions 
``governmental and administrative unit or judicial authority,'' 
\26\ while the term ``governmental and judicial authority,'' 
which is intended to include both central and local governments 
in Hungary, remains in the English text. In Hungary, unlike in 
the United States, the term ``government'' does not include the 
judiciary. Thus, the negotiators agreed to specifically refer 
in this article to both ``governmental'' and ``judicial'' 
authority.\27\
---------------------------------------------------------------------------
    \26\ In the Hungarian text of the Treaty, the term ``governmental'' 
is translated as ``Kormanyzati es Kozigozgatasi'' (``government and 
administration'').
    \27\ The delegations agreed to title article 9 ``Official Records'' 
instead of ``Records of Government Agencies'' to make it clear that 
this article is intended to cover records of central and local 
governments as well as records of the judiciary.
---------------------------------------------------------------------------
    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. These authorities are public prosecutors and 
judicial authorities in Hungary and competent law enforcement 
and judicial authorities in the United States.
    The requirement that a Requesting State's access to 
government records that are not publicly available be to the 
same extent as that of law enforcement personnel in the 
Requested State is critical because some United States statutes 
limit disclosure of government information to certain United 
States law enforcement authorities for specific purposes. The 
negotiators intended to broaden such 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 its treaty partners. Thus, the Internal 
Revenue Service may provide tax returns and return information 
to Hungary through the Treaty when, with respect to a criminal 
investigation or prosecution, the Hungarian 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).\28\ Of course, if 
domestic law enforcement authorities are not entitled under any 
conditions to gain access to a particular non-public record, 
the other Contracting Party cannot expect to secure it pursuant 
to a Treaty request.
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    \28\ As an illustration, a Hungarian request for tax returns to be 
used in a non-tax criminal investigation in accordance with Title 26, 
United States Code, Section 6103(i)(1)(A), must specify that the 
Hungarian law enforcement authority is:
---------------------------------------------------------------------------

        personally and directly engaged in--
          (i) preparation for any judicial or administrative proceeding 
        pertaining to the enforcement of a specifically designated 
        Hungarian criminal statute (not involving tax administration) 
        to which Hungary is or may be a party,
          (ii) any investigation which may result in such a proceeding, 
        or
          (iii) any Hungarian proceeding pertaining to enforcement of 
        such a criminal statute to which Hungary is or may be a party.
        26 U.S.C. Sec. 6103(i)(1)(A).
  The request must be presented to a federal district court judge or 
magistrate for an order directing the Internal Revenue Service to 
disclose the tax returns, as is specified under Title 26, United States 
Code, Section 6103(i)(1)(B). In accordance with this law, before 
issuing such an order, the judge or magistrate must find that:

          (i) there is reasonable cause to believe, based upon 
        information believe to be liable, that a specific criminal act 
        has been committed,
          (ii) there is reasonable cause to believe that the return or 
        return information is or may be relevant to a matter relating 
        to the commission of such act, and
          (iii) the return or return information is sought exclusively 
        for use in a Hungarian criminal investigation or proceeding 
        concerning such act, and the information sought to be disclosed 
        cannot reasonably be obtained,
under the circumstances, from another source.

        26 U.S.C. Sec. 6103(i)(1)(B).
In other words, Hungarian law enforcement authorities seeking tax 
returns are treated as if they were United States law enforcement 
authorities; they undergo the same access procedures under which they 
are held to the same standards.
    Because non-public government records may contain sensitive 
information that does 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 at all.
    Paragraph 3 adopts the Convention Abolishing the 
Requirement of Legalization for Foreign Public Documents,\29\ 
to which the United States and Hungary are signatories, as the 
means of authenticating government or official records. For the 
United States, this furthers our treaty practice of 
streamlining the authentication process for foreign official 
records. As a result, official records produced by Hungary 
pursuant to a Treaty request that are authenticated by the 
``apostille'' as required by the Convention are self-
authenticating, thus creating an additional form of self-
authentication under Rule 902 of the Federal Rules of Evidence.
---------------------------------------------------------------------------
    \29\ Oct. 5, 1961, 33 U.S.T. 883, T.I.A.S. No. 10072.
---------------------------------------------------------------------------

Article 10--Invitation to appear in the Requesting State

    This article provides that the Requested State ``shall 
invite'' a person located in its territory to travel to the 
Requesting State to ``appear before the appropriate authority'' 
in the Requesting State. The intention is to establish a formal 
mechanism for inviting, not compelling, an appearance. The 
United States typically seeks a person's appearance as a 
witness for testifying before a grand jury or at trial. 
However, the text is written to permit an invitation to appear 
for any purpose deemed necessary or useful by the Requesting 
State.
    When the United States asks that Hungary invite a person to 
appear in the United States, the United States Central 
Authority first obtains a subpoena or other similar document 
addressed to the person. The United States requests that the 
Hungarian Ministry of Justice or the Chief Public Prosecutor 
ask the person invited to comply with the provisions of the 
subpoena or other document. As Hungary is requested merely to 
issue an invitation, the person invited is free to decline 
without punishment and also shall not be subject to any penalty 
for failing to appear after agreeing to do so. This does not 
preclude the United States from using other channels for 
service of a document (such as a subpoena issued under Title 
28, United States Code, Sections 1783-1784) on a United States 
citizen or resident located in Hungary. A subpoena may provide 
for sanctions for failure to appear in the United States as 
directed by the subpoena.
    The Hungarian negotiators explained that as Hungarian 
evidentiary rules of evidence are flexible, in most cases, 
Hungarian courts will not request that witnesses in the United 
States travel to Hungary to provide testimony for trial; 
rather, Hungarian courts most likely will be satisfied with the 
testimony of the witness obtained by a United States court 
pursuant to a commission or as otherwise provided (e.g., by a 
voluntary witness statement under penalty of perjury in the 
United States).
    Article 10 also requires the Requesting State to 
``indicate'' the extent to which the expenses of a person 
invited will be ``reimbursed.'' The language is intended to 
allow the Requesting State to specify types of expenses (e.g., 
categories such as air transportation and accommodations) 
without providing specific amounts.
    This article further obliges the Requested State to 
``promptly inform'' the Central Authority of the Requesting 
State of the witness' response to the invitation to appear. The 
Treaty does not specify the means by which this communication 
should be made; the negotiators understood that prompt 
notification could be made either orally or in writing.

Article 11--Transfer of persons in custody

    This article addresses requests for the appearance in the 
Requesting State of persons incarcerated in the Requested 
State. These persons are free to accept or decline the 
invitation to appear. Similar provisions common in United 
States mutual legal assistance treaties \30\ have proved to be 
extremely useful. Moreover, the United States already has the 
statutory authority to seek the appearance of these witnesses 
even in the absence of a treaty provision: Title 18, United 
States Code, Section 3508 provides an independent legal basis 
for United States prosecutors to arrange for such transfers.
---------------------------------------------------------------------------
    \30\ 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.
---------------------------------------------------------------------------
    Paragraph 1 provides for the transfer of a person in 
custody to the Requesting State for ``purposes of assistance.'' 
Typically, the United States seeks a person's appearance as a 
witness for testifying before a grand jury or at trial. 
However, the text permits 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 and the 
person in custody must consent. This provision will be 
particularly useful to the United States when a defendant in 
custody desires to be present at a deposition to be taken in 
Hungary.
    Paragraph 3 provides express authority for, and imposes an 
obligation upon, the receiving State to maintain the person in 
custody until the purpose of the transfer is accomplished and 
to return the person transferred to the sending State. The 
person must consent only to the original transfer, not to be 
returned to the sending State. The negotiators agreed that the 
Contracting Parties would discuss the remaining period of 
incarceration of a person to be transferred before the transfer 
occurs.
    Paragraph 3 further provides that the sending State need 
not initiate extradition proceedings to secure return of the 
person transferred. For the United States, this paragraph 
comports with Title 18, United States Code, Section 3508. This 
provision of the Treaty will be particularly helpful to the 
United States in the event that a person is transferred from 
Hungary to the United States and files a petition for habeas 
corpus in an attempt to prevent a return to Hungary in the 
absence of an extradition request. In addition, the person 
transferred is to be credited in the sending State for the time 
in custody in the receiving State.

Article 12--Safe conduct

    Paragraph 1 provides explicit assurances that a person must 
receive if transferred pursuant to article 10 or 11. These 
``safe conduct'' assurances immunize the person transferred 
from (1) service of process, either criminal or civil, based on 
acts ``which preceded his departure from the sending State,'' 
and (2) detention or any restriction of personal based on acts 
``which preceded his departure from the Requested State.''
    The Central Authority of the Requesting State, in its 
discretion, may determine that a person not be subject to these 
assurances. These assurances do not alter the receiving State's 
obligation to maintain a person in custody for those acts, if 
any, that resulted in the person's incarceration in the sending 
State. Also, these assurances do not protect against service, 
detention or compelled testimony in proceedings with respect to 
acts committed after departure from the sending State.
    As an illustration, a person in custody in the sending 
State who consents to a transfer to the receiving State can 
expect to participate in execution of the Treaty request in the 
receiving State to the extent agreed to prior to the transfer. 
The person will remain in custody in the receiving State, free 
from concerns about any past activities in the receiving State, 
until the person's participation is completed and the person is 
returned to the sending State.
    Paragraph 2 provides that safe conduct ``shall cease 15 
days'' after the Central Authority of the Requesting State 
notifies the Central Authority of the Requested State that it 
no longer requires the presence of the person. In such 
instances, the Central Authorities may arrange for the release 
of a person in custody. If, after such release, the person 
voluntarily stays longer than 15 days from the time the 
person's presence is no longer required, the person does so 
without any safe conduct assurances

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) in relation to an 
investigation or proceeding covered by the Treaty. The 
negotiators contemplated that ``best efforts'' would vary 
depending on the information provided in the request, in 
accordance with article 4. When little information is 
provided--for example, when the request merely states that a 
potential witness may be located in the Requested State--the 
Requested State is not expected to exert much effort. 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 persons within its territory with any 
documents relating to an investigation, prosecution or other 
proceeding covered by the Treaty. ``Best efforts'' varies 
depending on the information provided in the request, in 
accordance with article 4. Service in the United States will be 
made by registered mail unless Hungary asks for personal 
delivery, in which case service usually will be made by the 
United States Marshals Service. Service in Hungary typically 
will be made by mail, unless the United States specifies that 
some other form is necessary; Hungarian authorities typically 
will be able to accommodate such requests.
    Paragraph 2 requires that a request for the service of a 
document requiring the appearance of a person before an 
authority in 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 has met the 
standard.
    The negotiators agreed that the Requested State will 
attempt to find in favor of the Requesting State in applying 
the standard.
    Paragraph 3 requires the Requested State to return proof of 
service in the manner indicated by the Requesting State.

Article 15--Search and seizure

    Judicial authorities \31\ in Hungary 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 usually will be 
executed pursuant to article 8. In situations in which a 
subpoena duces tecum or demand for production is inadequate, 
however, this article permits a search and seizure.
---------------------------------------------------------------------------
    \31\ For Hungary, the term ``judicial authorities'' includes courts 
and public prosecutors. Both have equal power to compel testimony and 
the production of evidence in Hungary.
---------------------------------------------------------------------------
    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 Requesting State. Any 
physical evidence that can be useful to a criminal prosecution 
qualifies for search and seizure. The only limitations on 
search and seizure are those established by the laws 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 the United States to be able to execute a search and 
seizure on behalf of Hungary, the Hungarian request must 
provide information demonstrating ``probable cause,'' as is 
required by the Fourth Amendment to the United States 
Constitution. The Hungarian request must contain facts, or be 
augmented by facts from a reliable source, that persuade a 
United States judicial authority that probable cause exists to 
believe that a crime has been or is being committed in Hungary 
and that particularly described evidence of the crime is 
located at a particularly described place to be searched in the 
United States.
    When the Central Authority of the United States submits a 
request for search and seizure to one of the Central 
Authorities of Hungary, the United States Central Authority may 
specify whether it wishes a Hungarian court or public 
prosecutor to issue the search and seizure order; Hungarian 
authorities can accommodate this request. If the United States 
request does not specify which Hungarian authority should 
execute the request, however, typically Hungarian public 
prosecutor issues the order and then engages the Hungarian 
police to conduct the search and seizure. Under Hungarian law, 
there is no need for Hungarian courts to be involved in the 
issuance of search and seizure orders. In fact, the practice is 
that search and seizure orders, as well as subpoenas, generally 
are issued by public prosecutors.
    Paragraph 2 is designed to establish a chain of custody for 
evidence seized pursuant to a request and to provide a method 
for providing 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 ``continuity of custody, identity of the 
item, and the integrity of its condition.'' This record takes 
the form of custodians' certificates. Each successive custodian 
prepares a certificate that, when joined with the other 
certificates from other custodians, provides a reliable record 
tracking the route of the item seized (and the integrity of its 
condition) from the Requested State to the judicial proceeding 
in the Requesting State at which it is introduced into 
evidence. If the judge in the Requesting State finds that the 
process is trustworthy, the judge may admit the evidence with 
the accompanying certificates as authentic. The judge is free 
to deny admission of the evidence in spite of the certificates 
if another reasons exists to do so aside from authenticity. For 
the United States, this provision is intended to limit the need 
to summon officials of the Requested State to testify at trial 
to situations in which the reliability of the evidence (its 
origin or condition) is in serious question. For Hungary, the 
chain of custody is not a significant factor in the 
admissibility of evidence.
    Paragraph 3 permits the Requested State, as a matter of 
discretion, to protect the rights of third parties in the items 
seized. The negotiators intended that the Requested State, in 
using its discretion to impose conditions, would do so only to 
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 return as soon as possible ``any documents, 
records, or articles of evidence'' provided by the Requested 
State pursuant to the Treaty.

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 considered this provision of 
particular importance to law enforcement efforts, especially in 
the war against narcotic drug trafficking. The modern trend in 
law enforcement is to focus more attention on the proceeds of 
crime and to actively 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 the location of 
proceeds of crime in the territory of the other. This 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 to the other 
Central Authority on the action taken.
    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'' 
and restitution to victims of crime. 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 limited obligation to assist in this regard is 
carefully crafted to require action only to the extent 
permitted by the laws 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 one Contracting Party to initiate legal proceedings on 
behalf of the other; the only obligation is 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 the appropriate 
authorities of that Contracting Party.
    United States laws provide for the possibility of 
forfeiture of crime proceeds even before an accused person is 
identified. Similarly, Hungarian law provides for procedures 
whereby an item may be seized before an accused person is 
identified. This procedure is called an ``objective 
procedure.''
    With respect to restitution, the negotiators discussed 
whether the respective Contracting Parties can collect fines 
and make restitution to victims. Specifically, the negotiators 
considered whether the Contracting Parties, in order to make 
the victim whole, would be able to move against assets of the 
person who defrauded the victim of money. In both the United 
States and Hungary, the victim could file a civil suit and 
would only be able to seek the return of the actual fraud 
proceeds; the victim would not be able to substitute an accused 
person's assets for the value of the fraud.
    Paragraph 2 also provides for the possibility of 
temporarily restraining the disposition of criminal proceeds or 
instrumentalities. In Hungary, law enforcement authorities may 
freeze proceeds or assets pending the outcome of a criminal 
proceeding. For example, if a criminal proceeding is pending in 
the United States, and the Central Authority of the United 
States asks the Central Authority of Hungary to freeze assets 
in connection with this case, Hungarian law enforcement 
authorities will freeze assets until the criminal proceedings 
in the United States are completed. Afterwards, the victim may 
initiate a civil action in Hungary to recover the proceeds or 
instrumentalities.
    Paragraph 3 concerns the disposition of forfeited proceeds 
or property. Such disposition shall be made in accordance with 
the laws of the Requested State. The Requested State may keep 
the forfeited assets or share them with the Requesting State.
    The United States 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.\32\ The amount 
transferred generally reflects the contribution of the foreign 
government in the law enforcement activity that led to the 
seizure or forfeiture under United States law. United States 
sharing statutes require that the transfer be authorized in an 
international agreement by the Attorney General or the 
Secretary of the Treasury and be agreed to by the Secretary of 
State. Article 17 is intended to authorize each Contracting 
Party to transfer forfeited assets or the proceeds thereof to 
the other Contracting Party pursuant to sharing statutes. 
Article 15 enables either Contracting Party to transfer 
forfeited assets to the other to the extent permitted by its 
laws.
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    \32\ 18 U.S.C. Sec. 981 (i)(1).
---------------------------------------------------------------------------

Article 18--Compatability with other treaties, agreements, and 
        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 would become the mechanism of 
choice, they also recognized that competent authorities of 
either Contracting Party may continue to make requests in 
accordance with domestic laws, other bilateral treaties and 
agreements, and applicable multilateral conventions. The Treaty 
leaves the other mechanisms completely undisturbed.

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. Either Central Authority may 
initiate the consultations. The consultations usually will 
entail the discussion of specific requests, such as providing 
an opportunity for an exchange of information concerning the 
transmission and execution of requests. Experience has shown 
that as the Central Authorities work together, they become 
aware of various 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 the ratification, 
exchange of instruments of ratification and entry into force of 
the Treaty.
    Paragraph 1 contains the standard treaty language setting 
forth the procedures for the ratification and exchange of the 
instruments of ratification.
    Paragraph 2 is the standard provision that the Treaty shall 
enter into force immediately upon the exchange of instruments 
of ratification.
    Paragraph 3 provides that the Treaty will be terminated six 
months from the date that a Contracting Party receives written 
notification from the other.

              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 Hungary 
on Mutual Legal Assistance in Criminal Matters, signed at 
Budapest on December 1, 1994. 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.