[Senate Executive Report 105-22]
[From the U.S. Government Publishing Office]
105th Congress Exec. Rpt.
SENATE
2nd Session 105-22
_______________________________________________________________________
MUTUAL LEGAL ASSISTANCE TREATIES WITH AUSTRALIA, BARBADOS, BRAZIL,
CZECH REPUBLIC, ESTONIA, HONG KONG, ISRAEL, LATVIA, LITHUANIA,
LUXEMBOURG, POLAND, TRINIDAD & TOBAGO, VENEZUELA, ANTIGUA & BARBUDA,
DOMINICA, GRENADA, ST. KITTS & NEVIS, ST. LUCIA, AND ST. VINCENT & THE
GRENADINES
_______
October 14 (legislative day, October 2), 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Docs. 105-6; 105-11; 105-12; 105-22; 105-23; 105-
24; 105-27; 105-34; 105-37; 105-38; 105-40; 105-41; 105-42; 105-44;
105-47; and 105-52.]
The Committee on Foreign Relations, to which was referred
the Agreement between the Government of the United States of
America and the Government of Hong Kong on Mutual Legal
Assistance in Criminal Matters, with Annex, signed in Hong Kong
on April 15, 1997 (Treaty Doc. 105-6); the Treaty Between the
Government of the United States of America and the Government
of the Grand Duchy of Luxembourg on Mutual Legal Assistance in
Criminal Matters, and related exchange of notes, signed at
Washington on March 13, 1997 (Treaty Doc. 105-11); the Treaty
Between the United States of America and the Government of the
Republic of Poland on Mutual Legal Assistance in Criminal
Matters, and related exchange of notes, signed at Washington on
July 10, 1996 (Treaty Doc. 105-12); the Treaty Between the
Government of the United States of America and the Government
of Trinidad and Tobago on Mutual Legal Assistance in Criminal
Matters, signed at Port of Spain on March 4, 1996 (Treaty Doc.
105-22); the Treaty Between the Government of the United States
of America and the Government of Barbados on Mutual Legal
Assistance in Criminal Matters, signed at Bridgetown on
February 28, 1996 (Treaty Doc. 105-23); the Treaties Between
the Government of the United States of America and the
Governments of Four Countries Comprising the Organization of
Eastern Caribbean States: Antigua and Barbuda, signed at St.
John's on October 31, 1996; Dominica, signed at Roseau on
October 10, 1996; Grenada, signed at St. George's on May 30,
1996; St. Lucia, signed at Castries on April 18, 1996 (Treaty
Doc. 105-24); the Treaty Between the Government of the United
States of America and the Government of Australia on Mutual
Assistance in Criminal Matters, and related exchange of notes,
signed at Washington on April 30, 1997 (Treaty Doc. 105-27);
the Treaty Between the United States of America and the
Republic of Latvia on Mutual Legal Assistance in Criminal
Matters, signed at Washington on June 13, 1997, and an exchange
of notes signed the same date (Treaty Doc. 105-34); the Treaty
Between the Government of the United States of America and the
Government of St. Kitts and Nevis on Mutual Legal Assistance in
Criminal Matters, signed at Basseterre on September 18, 1997,
and a related exchange of notes signed at Bridgetown on October
29, 1997, and February 4, 1998 (Treaty Doc. 105-37); the Treaty
Between the Government of the United States of America and the
Government of the Republic of Venezuela on Mutual Legal
Assistance in Criminal Matters, signed at Caracas on October
12, 1997 (Treaty Doc. 105-38); the Treaty Between the
Government of the United States of America and the Government
of the State of Israel on Mutual Legal Assistance in Criminal
Matters, signed at Tel Aviv on January 26, 1998, and a related
exchange of notes signed the same date (Treaty Doc. 105-40);
the Treaty Between the Government of the United States of
America and the Government of the Republic of Lithuania on
Mutual Legal Assistance in Criminal Matters, signed at
Washington on January 16, 1998 (Treaty Doc. 105-41); the Treaty
Between the Government of the United States of America and the
Government of the Federative Republic of Brazil on Mutual Legal
Assistance in Criminal Matters, signed at Brasilia on October
14, 1997 (Treaty Doc. 105-42); the Treaty Between the
Government of the United States of America and the Government
of Saint Vincent and the Grenadines on Mutual Legal Assistance
in Criminal Matters, and a Related Protocol, signed at
Kingstown on January 8, 1998 (Treaty Doc. 105-44); the Treaty
Between the United States of America and the Czech Republic on
Mutual Legal Assistance in Criminal Matters, signed at
Washington on February 4, 1998 (Treaty Doc. 105-47); the Treaty
Between the Government of the United States of America and the
Government of the Republic of Estonia on Mutual Legal
Assistance in Criminal Matters, signed at Washington on April
2, 1998, and an exchange of notes dated September 16 and 17,
1998 (Treaty Doc. 105-52), having considered the same, reports
favorably thereon, each with one understanding, one declaration
and 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 resolutions of ratification.
CONTENTS
Page
I. Purpose..........................................................3
II. Background.......................................................3
III. Summary..........................................................3
IV. Entry Into Force and Termination................................10
V. Committee Action................................................10
VI. Committee Comments..............................................10
VII. Explanations of Proposed Treaties...............................12
VIII.Resolutions of Ratification....................................367
I. Purpose
Bilateral mutual legal assistance treaties are intended to
establish a formal basis for cooperative law enforcement
efforts.
II. Background
Nineteen mutual legal assistance treaties (MLATs) were
submitted to the Senate during the 105th Congress. They include
agreements with Hong Kong; Luxembourg; Australia; Venezuela;
Israel; Brazil; several of the island nations of the Caribbean
(Trinidad and Tobago, Barbados, Antigua and Barbuda, Dominica,
Grenada, St. Lucia, St. Kitts and Nevis, and St. Vincent and
the Grenadines); as well as several countries in Eastern Europe
(Poland, Estonia, Latvia, Lithuania, and the Czech Republic).
The United States already has twenty MLATs in force.
Although each of the treaties currently before the Senate has
its own distinctive features, the treaties follow a common
format and as a group exhibit more similarities than
differences.
III. Summary
a. General
The treaties generally are arranged in twenty articles.
Some have a few more; some a few less. They cover essentially
the same matters in essentially the same order, frequently
using virtually the same terminology. They are typically
aligned as follows with articles on:
the scope of assistance of the Treaty, in the form a
general statement of purpose and a general inventory of
the kinds of assistance available;
identification of the Central Authorities
responsible for administration of the Treaty;
the limitations on assistance available at the
discretion of the Central Authority in particular types
of cases;
the form and contents required of any request for
assistance under the Treaty;
the general responsibilities and prerogatives of
those called upon to execute requests under the Treaty;
how the costs associated with a particular request
are to be allocated;
the limitations of use or disclosure of any evidence
or information secured pursuant a Treaty request;
the procedure for hearings conducted at the behest
of a foreign country to take testimony or evidence in
the Requested State;
the circumstances under which the Parties are to
have access to information found in the records of
government agencies of other countries;
the procedure for inviting witnesses to travel
abroad and give testimony in the Requesting State;
the provisions for the transfer of persons in
custody (prisoners) from one country to the other to
permit them to participate in foreign proceedings;
the pledge of each Party to devote their best
efforts in response to a request for the location or
identification of a particular person or item;
the commitment of each Party for the service of
documents related to a Treaty request;
the agreement to execute a search and seizure upon
request of a Treaty partner;
provisions for the return of property transferred to
another country pursuant to a Treaty request;
bilateral assistance in forfeiture proceedings and
in proceedings concerning restitution and criminal
fines;
compatibility with other arrangements, that is, the
fact that the Treaty is not intended to preempt other
legal grounds for cooperative law enforcement efforts;
consultation among the agencies responsible for
implementation of the Treaty; and
the particulars of ratification, termination and
effective dates.
b. Key Provisions
1. Scope of Assistance
The first article in each of the Treaties before the Senate
address the scope of the assistance available under the Treaty.
The article usually consists of four components: a statement of
purpose, an inventory of some of types of assistance available
under the agreement, a statement on dual criminality, and
disclaimer of any intent to give the defendant additional
rights.
2. Central Authorities
Article 2 of the Treaties vests the principal prosecutorial
authorities, frequently the Attorneys General, with the
responsibility for Treaty administration. In the United States,
the Attorney General has designated the Assistant Attorney
General for the Criminal Division to act as the Central
Authority for all MLATs. That official has in turn authorized
any of the Deputy Assistant Attorneys General, the Director of
the Division's Office of International Affairs, or any of the
Office's Deputy Directors to exercise the prerogatives of the
Central Authority for the United States. Most countries follow
a similar delegation pattern.
Other articles of the Treaties give the Central Authorities
and their subordinates considerable discretion over Treaty
administration, but Article 2 offers one valuable tool--it
allows them to deal directly with one another. This makes it
possible to respond to requests quickly and to make adjustments
cognizant of prosecutorial and other law enforcement needs. A
number of countries see both the Treaty and this law
enforcement-to-law enforcement feature as a welcome alternative
to some of the diplomatic irritants that may accompany self-
help or informal requests for assistance. A possible
disadvantage of this approach may be an occasional loss of
overall coordination of a country's overseas endeavors.
3. Limitation on Assistance
Article 3 of the Treaties, in most instances, bestows two
general powers upon the Central Authorities. It permits them to
approve or disapprove certain types of requests and it allows
them to reshape requests that they have been empowered to deny.
With an occasional exception, the Treaties allow the
Central Authorities to accept or refuse a request related to a
political offense or to purely military offense (misconduct
that does not amount to a civilian crime, such as desertion) or
a request that fails to meet the specifications for petitions
under the Treaties.
Each of the Treaties also has an ``essential interests''
clause that affords Central Authorities considerable leeway.
Their exact wording varies from authority to deny a request
whose execution ``would prejudice the sovereignty, security,
ordre public, or similar essential interests of the Requested
State'' to the power to deny a request whose execution ``would
prejudice the security or similar essential interests of the
Requested State.''
The words ``sovereignty,'' ``security'', ``public order,''
and ``essential interests'' in other contexts may each call to
mind some distinct collection of interests. Circumstances that
have once been recognized as within the scope of one essential
interests clause are likely to be subsequently claimed under
others. In the past ``essential interest'' clauses have been
understood to permit a country that had abolished capital
punishment as a sentencing alternative to deny assistance in a
capital case. Other abolitionist countries may well claim the
clause to deny Treaty assistance in a capital case unless the
United States agrees that the death penalty will not be used in
the particular case. A comparable fate may await an American
request related to criminal conduct occurring within the
territory of the Requested State and under circumstances where
it would consider our exercise of jurisdiction
``extraterritorial and objectionable.''
On the other hand, the United States may claim the
discretion of the essential interest clause should it be asked
to assist in a foreign investigation or prosecution of conduct
that in the United States would be constitutionally protected.
4. Form and Content of Requests
Treaty requests must be in writing, although in emergency
situations they may be presented orally and confirmed in
writing within 10 days or whatever time period the Central
Authorities agree upon. In the Treaties with countries where
English is not the principal language, requests must be
submitted in the language of the Requested State unless
otherwise agreed.
The requests must indicate (a) what assistance is being
sought, (b) the purposes for which it is being sought, (c) the
name of the authority conducting the investigation, prosecution
or proceeding to which the request relates, and (d) background
information, ordinarily including an identification and perhaps
a copy of the substantive criminal laws to which the request is
related. The description of the first three of these demands is
virtually identical in all of the Treaties. The specifications
for the background information that must accompany any Treaty
request is most commonly phrased as ``a description of the
subject matter and nature of the investigation, prosecution, or
proceeding, including the specific criminal offenses that
relate to the matter.'' Others are not dramatically different,
but frequently call for a bit more information, probably to
ensure compliance with restrictions elsewhere in their
Treaties.
The final component of the article dealing with form and
content outlines the informational requirements for specific
types of requests, the whereabouts of individuals or items
whose identification has been requested and the like, which
will described below in the context of the particular types of
requests.
5. Execution of Requests
The fifth Article of each of the Treaties deals with seven
issues related to the performance of Treaty requests, usually
employing boilerplate language:
general obligations of the Central Authorities;
representation of the foreign country placing the
request;
the law governing the manner in which requests will
be answered;
the obligation when a request relates to a matter
pending in both countries;
confidentiality requirements;
the rights of the Requesting State to be informed of
the status of performance on their requests; and
the rights of the Requesting State to be informed of
the outcome of the execution of their requests.
6. Cost
The Treaties handle associated costs primarily as
incidental to domestic law enforcement responsibilities. The
country providing assistance is expected to bear the expense.
Requesting countries are responsible for the costs of
translations, transcriptions, expert witness fees, and the
expenses associated with the foreign travel of witnesses. This
approach prevents countries from claiming reimbursement for
excessive costs to discourage requests or to mask a refusal to
provide assistance. In exceptional cases, however, the Parties
may agree to share costs and to modify the assistance provided
for fiscal reasons.
7. Limitations on Use
Article 7 of the treaties contains the second
confidentiality element--the use and disclosure of evidence and
information produced under the Treaties. Most of the Treaties
allow the Central Authorities of the country providing evidence
or information under the Treaty to prohibit its use in other
investigations, prosecutions, or proceedings without their
consent or until after it has been publicly disclosed as a
consequence of the use for which it was intended. The Israeli
Treaty and several of those with Caribbean nations feature the
same confidentiality requirements, but impose them without
regard to whether or not they are requested. The U.S. Treaty
with Luxembourg stipulates that even if publicly disclosed in
the course of the proceedings for which it was provided and
even if confidentiality has not previously been requested,
information or evidence secured under the Treaty may not be
used in a case involving a purely military offense, a political
offense, a capital offense, or a tax offense without the
consent of the country that provided the information or
evidence.
All the Treaties permit the country that provides evidence
or information under their provisions to impose conditions
preserving its confidentiality and restricting its use and
disclosure.
8. Testimony and Evidence in the Requested State
The Treaties provide that, ``a person [found] in the
Requested State from whom testimony or evidence is requested .
. . shall be compelled, if necessary, to appear and testify or
produce items, including documents and records.'' The country
requesting the testimony or evidence may ask for, and is
entitled to receive, advanced notice of the time and place of
execution of its request. Individuals specified in the request
are entitled to attend and either to question the witness or to
submit questions to be asked.
Foreign witnesses called to testify or produce evidence
abroad under the Treaties are entitled to claim the benefits of
any privileges, immunities and incapacities recognized by our
law. The most obvious of these--beyond the evidentiary
privileges recognized by the federal courts, and probably by
the state courts in the case of any request initiated at the
behest of one of the several States of the United States--are
those guaranteed by the Constitution, most notably the Fourth
and Fifth Amendments. Although under a few Treaties the law of
the forum State applies as well, witness claims of immunity,
privilege or incapacity are governed by the law of the nation
that seeks the witness's testimony. In the case of claims under
the laws of the Requesting State, the evidence is taken and
matter referred for resolution in the Requesting State. A claim
of privilege or immunity cannot be vindicated in an overseas
proceeding conducted under the Treaties, because they call for
the evidence to be taken nonetheless and for the claims to be
resolved after the fact in the United States. The available
remedies may be limited to post facto suppression of any
tainted evidence or a protective order issued by an American
court and directed against the federal or state government
prior to the foreign proceeding.
The Treaties call for authentication of evidence taken
overseas, typically by use of appended forms, and declare
evidence authenticated under the Treaties for admissibility
purposes in the courts of the Treaty States.
9. Government Records
The Treaties divide governmental information available
under their provisions into two categories, publicly available
information (which must be provided upon request) and
information available to judicial and law enforcement personnel
but not to the general public (which may be provided upon
request).
The Technical Analyses accompanying these treaties have
noted that the provision permits access by the law enforcement
and tax enforcement authorities of our MLAT Treaty partners to
tax information held by the Internal Revenue Service (IRS) just
as access is available to federal law enforcement officials.
The general rule is subject to individual limitations found in
Treaties, like those with Israel and Luxembourg, that have
special tax investigation requirements and restrictions.
10. Appearance Outside the Requested State
Foreign witnesses cannot be compelled to travel to the
United States to testify, and vice versa, but as the Treaties
observe they may be invited to do so. The invitations are
extended by the nation in which the witness is found. The
country seeking assistance must indicate the extent to which
the witnesses' expenses will be paid. These elements are common
to all of the Treaties. There is greater diversity over the
extent of safe conduct offered and over the permissible range
of assistance. The majority allow invitations for invitees ``to
appear before the appropriate authority of the Requested
State,'' a sufficiently imprecise phrase to accommodate both
narrow or sweeping interpretation. It could be construed to
mean no more than testimony in judicial proceedings. It could
be alternatively interpreted to include testimony before any
tribunal, judicial or administrative, and/or any form of
assistance including but not limited to testimony.
11. Transfer of Persons in Custody
The Treaties anticipate situations where prisoners are
sought as participants in proceedings in another country either
by the country in which they are imprisoned or by the country
in which the proceedings are to be held. The Treaties overcome
the dual problem that the country where the proceedings are to
be conducted will frequently be unwilling to allow foreign
officials to maintain custody of a prisoner within its
territory but will lack the authority under their laws to
accept custody on their own.
With the consent of the prisoner and each of the States,
the Treaties allow a transfer of custody to provide law
enforcement assistance. The Treaties uniformly authorize the
receiving State to accept custody, instruct the receiving State
to return the prisoner without the necessity of extradition,
and credit the prisoner with time spent in the receiving State.
The Czech, Lithuanian, Latvian and Luxembourg Treaties also
authorize transfers to the third countries. Most of the
Treaties do not mention safe conduct guarantees for transferred
prisoners; the Treaties with Hong Kong, Israel, Lithuania,
Australia and the Czech Republic do.
12. Location or Identification of Persons or Items
The Parties pledge their best efforts to ascertain the
location or identity of persons or items upon request.
Effective use of a MLAT or an extradition treaty often begins
by finding an overseas fugitive or locating and identifying a
witness or a custodian of bank records or other physical
evidence resident in another country. The form and content
articles of the Treaties instruct requesting States to provide
such information as to the location and identification of the
persons or items as they can.
13. Service of Documents
The MLAT procedure can be used to serve subpoenas issued
under section 1783 of Title 28 of the U.S. Code on Americans in
other countries, unless foreign law expressly prohibits
service. Except for the Treaties with Australia, Hong Kong, and
Israel, however, the service-of-document articles are
subservient to the other Treaty provisions for they may be
employed only ``to effect service of any document related in
whole or in part to any request for assistance made by the
Requesting State under the provisions of'' the Treaties.
Beyond a pledge of best efforts, the Treaties commit the
Parties to provide advance notice in connection with any
documents calling for an appearance abroad. They also demand
that the country serving the documents provide evidence of
service in the manner requested.
14. Search and Seizure
The search and seizure articles in the Treaties are
similarly uniform. They require execution of any request
accompanied by information sufficient to satisfy the legal
requirements of the country in which execution is to occur.
They generally feature an authentication procedure designed to
satisfy American legal requirements for admissibility of
evidence. Finally, each of the Treaties has a provision
authorizing conditions for the protection of third party
interests in the property. The search and seizure article is
followed in each of the Treaties by an article empowering the
country executing the search and seizure to call for the return
of the ultimate transferred property.
Broadly cast as ``search and seizure'' provisions, the
Treaty articles are rather clearly limited to searches and
seizures of property; they neither authorize nor anticipate the
search for nor the seizure of individuals.
15. Forfeiture Assistance
Forfeiture varies from one jurisdiction to another and as a
consequence MLAT forfeiture provisions vary a great deal from
one Treaty to the next. The laws of some countries demand
conviction as a condition of forfeiture. Others permit
confiscation only after a criminal charge has been filed
against the property owner. Many nations define the range of
crimes upon which a forfeiture may be based more narrowly than
we do. Some consider direct proceeds forfeitable, but not
property purchased with direct proceeds. Still others allow
confiscation only as a consequence of crimes committed within
their jurisdiction and do not permit confiscation based solely
on the presence of crime-tainted property within their
jurisdiction. Any of these differences may complicate a foreign
response to an American request for the forfeiture assistance.
The Treaties' forfeiture assistance articles are similar.
In agreements characterized most by their generalities, the
forfeiture articles are perhaps the least revealing and perhaps
the most likely rendered diverse by the particulars of the
domestic laws that induce the frequent references to ``to
extent permitted by its laws.''
16. Fine Collection and Restitution
The Treaties in most instances include only passing
references to fine collection and restitution: ``The
Contracting Parties shall assist each other to the extent
permitted by their respective laws in proceedings relating to
the forfeiture of the proceeds and instrumentalities of
offenses, restitution to the victims of crime, and the
collection of fines imposed as sentences in criminal
prosecutions.'' The Israeli and Czech Treaties have more
extensive if only slight less cryptic citations to restitution
and fine collection. Their reluctance to enforce foreign
restitution and fine orders probably reflects the limitations
of their domestic laws, which may be representative of the
domestic laws of the other nations as well.
IV. Entry Into Force and Termination
a. entry into force
The Treaties generally provide for the entry into force of
the treaty either on the date of, or shortly after, the
exchange of instruments of ratification.
b. termination
The Treaties generally provide for the Parties to withdraw
from the Treaty by means of written notice to the other Party.
Termination would take place six months after the date of
notification. Some of the treaties make clear that requests for
assistance prior to notification of termination shall be
honored.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed Treaties on September 15, 1998. The Committee
considered the proposed Treaties on October 14, 1998 and
ordered the proposed Treaties favorably reported with the
recommendation that the Senate give its advice and consent to
the ratification of each of the proposed Treaties subject to
one understanding, one declaration, and two provisos.
VI. Committee Comments
The Committee on Foreign Relations recommends favorably the
proposed Treaties. On balance, the Committee believes that the
proposed Treaties are in the interest of the United States and
urges the Senate to act promptly to give its advice and consent
to ratification. Several issues did arise in the course of the
Committee's consideration of the Treaties, and the Committee
believes that the following comments may be useful to the
Senate in its consideration of the proposed Treaties and to the
State Department.
A. Restriction on Use of Assistance to Aid International Criminal Court
On July 17, 1998 a majority of nations at the U.N.
Diplomatic Conference in Rome, Italy, on the Establishment of
an International Criminal Court voted 120-7, with 21
abstentions, in favor of a treaty that would establish an
international criminal court. The court is empowered to
investigate and prosecute war crimes, crimes against humanity,
genocide and aggression. The United States voted against the
treaty.
Each of the Resolutions of Ratification accompanying the
Mutual Legal Assistance Treaties prohibits any assistance
provided to any of the Treaty partners from being transferred
to or otherwise used to assist the International Criminal Court
agreed to in Rome, Italy. This restriction would be vitiated in
the event that the United States ratifies the treaty, pursuant
to the Constitutional procedures as contained in Article II,
section 2 of the United States Constitution.
This understanding makes clear that both Parties understand
that information shared with a Party by the United States
pursuant to the MLAT will not to be forwarded to the
international court. The Committee understands that the terms
of the Treaties will not give the United States, as Requested
State, total control over the Requesting State's use of
assistance provided under the Treaty. For instance, under the
article on use limitations, information provided under the
Treaty that has become public in the Requesting State may be
used for any purpose. The Committee does expect and intend,
however, that the United States will exercise its rights under
the Treaty to prevent any assistance or information that we
have provided to be transferred to the International Criminal
Court.
Members of the Committee are concerned that the Treaties
could become conduits for assisting the International Criminal
Court, even if the United States is not a party to the court.
This provision would ensure that this does not happen so long
as the treaty creating the criminal court has not entered into
force for the United States.
B. Use of treaties to aggressively pursue international parental
kidnaping
On October 1, 1998, the Committee on Foreign Relations
convened a hearing to consider U.S. Responses to International
Parental Kidnaping. The Attorney General, Janet Reno, testified
before the Committee, as did four parents whose children were
abducted or wrongfully retained in international jurisdictions.
The parents recounted their frustration with the current level
of U.S. Government assistance in seeking the return of their
children.
Although the Attorney General pointed to limitations in the
ability of the U.S. Government to resolve many cases of
international parental abduction, she also recognized that the
United States could do better in assisting in the return of
abducted children and pledged to take steps to improve
coordination between the Departments of State and Justice. She
also indicated that an interagency working group, which has
been studying this issue during the past year, will produce a
report in January with recommendations for improvements in U.S.
policy regarding international parental kidnaping.
As this working group completes its work, the Committee
expects that one area related to these treaties that the
working group should comment upon is the current practice of
the exchange of information under MLATs and other means related
to the crime of international parental kidnaping. Under current
practice these treaties provide for cooperation between law
enforcement officials. The Committee believes that care should
be given to ensure that these treaties be useful tools for
attaining information and other cooperation that will assist in
the return of abducted or wrongfully retained children. The
Committee anticipates that the Justice Department will consider
renouncing treaties in the event that the Central Authority of
a Party consistently fails to adequately provide assistance
under the Treaty. The Committee is especially concerned that
the proposed Treaty with Austria be monitored to ensure
cooperation in the exchange of information related to
international parental kidnaping.
The State and Justice Departments have testified that these
treaties are essential in order to ensure that criminals do not
evade prosecution. This same principle should be true for the
crime of parental kidnaping in violation of the 1993
International Parental Kidnaping Act. The Committee expects,
therefore, that State and Justice Department officials will
seek cooperation in all cases unless it will hinder U.S. law
enforcement efforts. The Committee also expects that State and
Justice Department officials will raise this issue in the
course of negotiation of all bilateral law enforcement treaties
and in other bilateral diplomatic exchanges.
VII. Explanations of Proposed Treaties
The following are the article-by-article technical analysis
provided by the Departments of State and Justice regarding the
mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and Antigua and Barbuda on Mutual Legal Assistance in Criminal Matters
On October 31, 1996, the United States signed a treaty with
Antigua and Barbuda 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 expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking in
the eastern Caribbean, where Antigua and Barbuda is a regional
leader.
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. Antigua and
Barbuda has its own mutual legal assistance laws in place for
implementing the Treaty, and does not anticipate enacting new
legislation. \1\
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\1\ ``An Act to make provision with respect to the scheme relating
to Mutual Assistance in Criminal Matters within the Commonwealth and to
facilitate its operation in Antigua and Barbuda and to make provision
concerning mutual assistance in Criminal Matters between Antigua and
Barbuda and countries other than Commonwealth countries'' (18 February
1993), hereinafter ``Antigua Mutual Assistance Act, 1993.'' Since there
are some differences between the Treaty and Antiguan law, it is
anticipated that Antigua will issue regulations under Section 30, which
will ``direct that [the] Act shall apply in relation to [the United
States] as if it were a Commonwealth country, subject to such
limitations, conditions, exceptions or qualifications (if any) as may
be prescribed . . .'' in order for the terms of the Treaty to prevail.
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The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of criminal offenses, and in proceedings
relating to criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Antigua and
Barbuda, and other legal measures taken prior to the filing of
formal charges in either State. \2\ The term ``proceedings''
was intended to cover the full range of proceedings in a
criminal case, including such matters as bail and sentencing
hearings. \3\ It was also agreed that since the phrase
``proceedings related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
Government the proceeds of illegal drug trafficking may be
civil in nature; \4\ such proceedings are covered by the
Treaty.
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\2\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Antigua and
Barbuda under the Treaty in connection with investigations prior to
charges being filed in Antigua and Barbuda. Prior to the 1996
amendments to Title 28, United States Code, Section 1782, some U.S.
courts had that provision to require that assistance be provided in
criminal matters only if formal charges have already been filed abroad,
or are ``imminent,'' or ``very likely.'' McCarthy, ``A Proposed Uniform
Standard for U.S. Courts in Granting Requests for International
Judicial Assistance,'' 15 Fordham Int'l Law J. 772 (1992). The 1996
amendment eliminates this problem, however, by amending subsec. (a) to
state ``including criminal investigation conducted before formal
accusation.'' In any event, this Treaty was intentionally written to
cover criminal investigations that have just begun as well as those
that are nearly completed, and it draws no distinction between cases in
which charges are already pending, are ``imminent,'' ``very likely,''
or ``very likely very soon.'' Thus, U.S. courts should execute requests
under the Treaty without examining such factors.
\3\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Government of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\ Title 21, United States Code, Section 881; Title 18, United
States Code, Section 1964.
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Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The second paragraph's list of kinds of
assistance is not intended to be exhaustive, a fact which is
signaled by the word ``include'' in the opening clause of the
paragraph and reinforced by the final subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 makes it clear that there is no general requirement of dual
criminality for cooperation. Thus, assistance may be provided
even when the criminal matter under investigation in the
Requesting State would not be a crime in the Requested State
``. . . except where otherwise provided by this Treaty,'' a
phrase which refers to Article 3(1)(e), under which the
Requested State may, in its discretion, require dual
criminality before executing a request under Article 14
(involving searches and seizures) or Article 16 (involving
asset forfeiture matters). Article 1(3) is important because
United States and Antigua and Barbuda criminal law differ, and
a general dual criminality rule would make assistance
unavailable in many significant areas. This type of limited
dual criminality provision is found in other U.S. mutual legal
assistance treaties. \5\ During the negotiations, the United
States delegation received assurances that assistance would be
available under the Treaty to the United States in
investigations of such offenses as conspiracy, drug
trafficking, including continuing criminal enterprise (Title
21, United States Code, Section 848), offenses under the
racketeering statutes (Title 18, United States Code, Section
1961-1968), money laundering, crimes against environmental
protection laws, and antitrust violations.
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\5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
While the Treaty does not require dual criminality in
general, Antigua and Barbuda's delegation did raise questions
about assistance in one area in which the criminal laws of the
Parties differ. Since Antigua and Barbuda has no income tax
legislation, it suggested that the Treaty restrict mutual
assistance in tax cases, noting that such restrictions are
contained in the United States' mutual legal assistance treaty
with the United Kingdom regarding the Cayman Islands. The
United States delegation was unwilling to agree that this
Treaty be so limited, because criminal tax matters are often
used to pursue and prosecute major criminals such as drug
traffickers and organized crime figures. It was agreed that
Article 1(4) should specify that ``[t]his treaty is intended
solely for mutual legal assistance in criminal matters between
the Parties as set forth in paragraph (1) above,'' thereby
emphasizing that the Treaty applies only to criminal tax
matters. At Antigua and Barbuda's request, diplomatic notes
were exchanged at the time that the Treaty was signed
indicating the Parties' agreement that Antigua and Barbuda may
interpret Article 1 to exclude assistance under the Treaty for
civil and administrative income tax matters that are unrelated
to any criminal matter.
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \6\ that states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Antigua and Barbuda
by letters rogatory, an avenue of international assistance that
the Treaty leaves undisturbed. Similarly, the paragraph
provides that the Treaty is not intended to create any right in
a private person to suppress or exclude evidence provided
pursuant to the Treaty, or to impede the execution of a
request.
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\6\ United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984).
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Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Antigua and Barbuda on behalf of federal
agencies, state agencies, and local law enforcement authorities
in the United States. The Antigua and Barbuda Central Authority
would make all requests emanating from officials in Antigua and
Barbuda. The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \7\
Paragraph 2 also states that the Attorney General of Antigua
and Barbuda or a person designated by the Attorney General will
serve as the Central Authority for Antigua and Barbuda.
---------------------------------------------------------------------------
\7\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or other essential public
interests of that State. All United States mutual legal
assistance treaties contain provisions allowing the Requested
State to decline to execute a request if execution would
prejudice its essential interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the Department of Justice, in its role
as Central Authority for the United States, would work closely
with the Department of State and other government agencies to
determine whether to execute a request that might fall in this
category.
The delegations also agreed that the phrase ``essential
public interests'' was intended to narrowly limit the class of
cases in which assistance may be denied. It would not be enough
that the Requesting State's case is one that would be
inconsistent with public policy had it been brought in the
Requested State. Rather, the Requested State must be convinced
that execution of the request would seriously conflict with
significant public policy. An example might be a request
involving prosecution by the Requesting State of conduct which
occurred in the Requested State and is constitutionally
protected in that State.
However, it was agreed that ``essential public interests''
could include interests unrelated to national military or
political security, and be invoked if the execution of a
request would violate essential United States interests related
to the fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph (1)(b) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \8\
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\8\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, Department of
Justice).
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In general, the mere fact that the execution of a request
would involve the disclosure of records protected by bank or
business secrecy in the Requested State would not justify
invocation of the ``essential public interests'' provision.
Indeed, a major objective of the Treaty is to provide a formal,
agreed channel for making such information available for law
enforcement purposes. In the course of the negotiations, the
Antigua and Barbuda delegation expressed its view that in very
exceptional and narrow circumstances the disclosure of business
or banking secrets could be of such significant importance to
its Government (e.g., if disclosure would effectively destroy
an entire domestic industry rather than just a specific
business entity) that it could prejudice that State's
``essential public interests'' and entitle it to deny
assistance. \9\ The U.S. delegation did not disagree that there
might be such extraordinary circumstances, but emphasized its
view that denials of assistance on this basis by either party
should be extremely rare.
---------------------------------------------------------------------------
\9\ The Antigua and Barbuda view of this provision is thus similar
to the Swiss view of Article 3(2) of the U.S.-Switzerland Treaty. See
Technical Analysis to the Treaty between the U.S. and Switzerland on
Mutual Assistance in Criminal Matters, signed May 25, 1973. U.S. Senate
Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
Paragraph (1)(c) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph (1)(d) permits denial of a request if it involves
a political offense. \10\ It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
---------------------------------------------------------------------------
\10\ Sections 19(2)(a) and 19(2)(b), Antigua Mutual Assistance Act
1993.
---------------------------------------------------------------------------
Paragraph (1)(e) permits denial of a request if there is no
``dual criminality'' with respect to requests made pursuant to
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters).
Finally, Paragraph (1)(f) permits denial of the request if
execution would be contrary to the Constitution of the
Requested State. This provision was deemed necessary under the
law of Antigua and Barbuda, \11\ and is similar to clauses in
other United States mutual legal assistance treaties. \12\
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\11\ Section 19(2)(e), Antigua Mutual Assistance Act 1993.
\12\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989,
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13,
1989, art. III(1)(d).
---------------------------------------------------------------------------
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \13\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\13\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Antigua and Barbuda.
Rather, it is anticipated that when a request from Antigua and
Barbuda requires compulsory process for execution, the
Department of Justice would ask a federal court to issue the
necessary process under Title 28, United States Code, Section
1782, and the provisions of the Treaty. \14\
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\14\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) reads ``[t]he competent
judicial or other authorities of the Requested State shall have
power to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in the execution of mutual
assistance requests. The phrase refers to ``judicial or other
authorities'' to include all those officials authorized to
issue compulsory process that might be needed in executing a
request. For example, in Antigua and Barbuda, justices of the
peace and senior police officers are empowered to issue certain
kinds of compulsory process under certain circumstances.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Paragraph 2 is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \15\ and provides, that
``[r]equests shall be executed in accordance with the internal
laws and procedures of the Requested State, except to the
extent that this Treaty provides otherwise.'' Thus, the method
of executing a request for assistance under the Treaty must be
in accordance with the Requested State's internal laws absent
specific contrary procedures in the Treaty itself. Thus,
neither State is expected to take any action pursuant to a
Treaty request which would be prohibited under its internal
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to
carry out the obligations undertaken.
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\15\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 12.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and
authorities in Antigua and Barbuda in collecting evidence in
order to assure the admissibility of that evidence at trial.
For instance, United States law permits documentary evidence
taken abroad to be admitted in evidence if the evidence is duly
certified and the defendant has been given fair opportunity to
test its authenticity. \16\ Antigua and Barbuda law currently
contains no similar provision. Thus, documents assembled in
Antigua and Barbuda in strict conformity with Antigua and
Barbuda procedures on evidence might not be admissible in
United States courts. Similarly, United States courts utilize
procedural techniques such as videotape depositions to enhance
the reliability of evidence taken abroad, and some of these
techniques, while not forbidden, are not used in Antigua and
Barbuda.
---------------------------------------------------------------------------
\16\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 3 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested State may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article (2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \17\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\17\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \18\
Article 6 states that the Requesting State will pay fees of
expert witnesses, translation, interpretation and transcription
costs, and allowances and expenses related to travel of persons
pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\18\ See e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 17, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 5, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it.
The Antigua and Barbuda delegation expressed concern that
information it might supply in response to a request by the
United States under the Treaty not be disclosed under the
Freedom of Information Act. Both delegations agreed that since
this article permits the Requested State to prohibit the
Requesting State's disclosure of information for any purpose
other than that stated in the request, a Freedom of Information
Act request that seeks information that the United States
obtained under the Treaty would have to be denied if the United
States received the information on the condition that it be
kept confidential.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that there is an obligation to do
so under the Constitution of the Requesting State in a criminal
prosecution. Any such proposed disclosure and the provision of
the Constitution under which such disclosure is required shall
be notified by the Requesting State to the Requested State in
advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
Paragraph 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting State to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Antigua and Barbuda authority seeks
to use information or evidence obtained from the United States
in a manner inconsistent with this article, the person can
inform the Central Authority of the United States of the
allegations for consideration as a matter between the
Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article. Paragraph 4, when read together with Article 5(3),
ensures that no person will be compelled to furnish information
if he has a right not to do so under the law of the Requested
State. Thus, a witness questioned in the United States pursuant
to a request from Antigua and Barbuda is guaranteed the right
to invoke any of the testimonial privileges (i.e., attorney
client, interspousal) available in the United States as well as
the constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \19\ A witness testifying in
Antigua and Barbuda may raise any of the similar privileges
available under the law of Antigua and Barbuda.
---------------------------------------------------------------------------
\19\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \20\
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\20\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 17, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 5,
art. 8(4).
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Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
this paragraph provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Antigua and Barbuda under this article in
appropriate cases. \21\ Paragraph 3 states that documents
provided under this article may be authenticated in accordance
with the procedures specified in the request, and if
authenticated in this manner, the evidence shall be admissible
in evidence in the Requesting State. Thus, the Treaty
establishes a procedure for authenticating official foreign
documents that is consistent with Rule 902(3) of the Federal
Rules of Evidence and Rule 44, Federal Rules of Civil
Procedure.
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\21\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons located in its territory to travel
to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6 if requested by the person whose appearance is
sought. Paragraph 1 provides that the witness shall be informed
of the amount and kind of expenses which the Requesting State
will provide in a particular case. It is assumed that such
expenses would normally include the costs of transportation and
room and board. When the witness is to appear in the United
States, a nominal witness fee would also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while he is in
the Requesting State. Most U.S. mutual legal assistance
treaties anticipate that the Central Authority will determine
whether to extend such safe conduct, but under the Treaty with
Antigua and Barbuda, the Central Authority merely reports
whether safe conduct has been extended. This is because in
Antigua and Barbuda only the Director of Public Prosecutions
can extend such safe conduct, and the Attorney General (who is
Central Authority for Antigua and Barbuda under Article 3 of
the Treaty) cannot do so. This ``safe conduct'' is limited to
acts or convictions that preceded the witness's departure from
the Requested State. It is understand that this provision would
not prevent the prosecution of a person for perjury or any
other crime committed while in the Requesting State.
Paragraph 3 states that any safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer
required, or if the person leaves the territory of the
Requesting State and thereafter returns to it. However, the
competent authorities of the Requesting State may extend the
safe conduct up to fifteen days if they determine that there is
good cause to do so. For the United States, the ``competent
authorities'' for these purposes would be the Central
Authority.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has been able to arrange for consenting federal inmates in the
United States to be transported to foreign countries to assist
in criminal proceedings. \22\
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\22\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \23\ which in turn
is based on Article 11 of the European Convention on Mutual
Assistance in Criminal Matters. \24\
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\23\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
13, art. 26.
\24\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
It is also consistent with Section 24, Antigua Mutual Assistance Act
1993.
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Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State
for that purpose if the person consents and if the Central
Authorities of both States agree. This would also cover
situations in which a person in custody in the United States on
a criminal matter has sought permission to travel to another
country to be present at a deposition being taken there in
connection with the case. \25\
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\25\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
persons stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a person under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require the
person's consent for return to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State.
\26\ The extent of such efforts will vary, of course, depending
on the quality and extent of the information provided by the
Requested State concerning the suspected location and last
known location.
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\26\ This is consistent with Section 21, Antigua Mutual Assistance
Act 1993.
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The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. This is
consistent with Antigua and Barbuda law, \27\ and identical
provisions appear in several U.S. mutual legal assistance
treaties.
---------------------------------------------------------------------------
\27\ Section 25, Antigua Mutual Assistance Act 1993.
---------------------------------------------------------------------------
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Antigua and Barbuda to follow
a specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \28\ This article
creates a formal framework for handling such requests.
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\28\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984). Antigua's
courts, too, have the power to execute such requests under Section 22,
Antigua Mutual Assistance Act 1993.
---------------------------------------------------------------------------
Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Antigua and Barbuda will have to be
supported by a showing of probable cause for the search. A
United States request to Antigua and Barbuda would have to
satisfy the corresponding evidentiary standard there, which is
``a reasonable basis to believe'' that the specified premises
contains articles likely to be evidence of the commission of an
offense.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requested State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the
Requesting State to provided authentication and chain of
custody testimony each time the Requesting State uses evidence
produced under this article. As in Articles 8(5) and 9(3), the
injunction that the certificates be admissible without
additional authentication at trial leaves the trier of fact
free to bar use of the evidence itself, in spite of the
certificate, if there is some other reason to do so aside from
authenticity or chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \29\
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\29\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 20;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 17; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jan. 6, 1994.
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Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. The delegations understood
that this requirement would be invoked only if the Central
Authority of the Requested State specifically requests it at
the time that the items are delivered to the Requesting State.
It is anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Antigua and Barbuda in combating
narcotics trafficking. One significant strategy in this effort
is action by United States authorities to seize and confiscate
money, property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 of the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Antigua and Barbuda, they could be
seized under 18 U.S.C. 981 in aid of a prosecution under Title
18, United States Code, Section 2314, \30\ or be subject to a
temporary restraining order in anticipation of a civil action
for the return of the assets to the lawful owner. Proceeds of a
foreign kidnapping, robbery, extortion or a fraud by or against
a foreign bank are civilly and criminally forfeitable in the
U.S. since these offenses are predicate offenses under U.S.
money laundering laws. \31\ Thus, it is a violation of United
States criminal law to launder the proceeds of these foreign
fraud or theft offenses, when such proceeds are brought into
the United States.
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\30\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\31\ Title 18, United States Code, Section 1956(c)(7)(B).
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If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B), allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada, and there is a growing trend among
nations toward enacting legislation of this kind in the battle
against narcotics trafficking. \32\ The United States
delegation expects that Article 16 of the Treaty will enable
this legislation to be even more effective.
---------------------------------------------------------------------------
\32\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \33\
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\33\ In Antigua and Barbuda, unlike the U.S., the law does not
currently allow for civil forfeiture. However, Antigua and Barbuda law
does permit forfeiture in criminal cases, and ordinarily a defendant
must be convicted in order for Antigua and Barbuda to confiscate the
defendant's property.
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United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\34\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
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\34\ See Title 18, United States Code, Section 981 (i)(1).
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Article 17--Compatibility with Other Arrangements
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Antigua and Barbuda law on letters rogatory completely
undisturbed, and would not alter any pre-existing agreements
concerning investigative assistance.
Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which Treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \35\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
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\35\ See e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 17, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 29, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 5, art. 18.
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Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented pursuant to it after it enters into force,
even if the relevant acts or omissions occurred before the date
on which the Treaty entered into force. Provisions of this kind
are common in law enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of The Treaty Between the United States of America
and Australia on Mutual Assistance in Criminal Matters
On April 30, 1997, the United States signed a treaty with
Australia on Mutual 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 with Australia is expected to be especially
useful to the United States in its efforts to combat organized
crime, transnational terrorism, international drug trafficking,
and other offenses.
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. Australia has
its own mutual assistance laws in place for implementing the
Treaty, and does not anticipate enacting new legislation. \1\
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\1\ Mutual Assistance in Criminal Matters Act (1987), as amended,
hereinafter ``Mutual Assistance Act.''
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The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Australia,
and other legal measures taken prior to the filing of formal
charges in either State. \2\ The term ``proceedings'' was
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
\3\ It was also agreed that since the phrase ``proceedings
related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \4\ yet such proceedings are covered by the
Treaty.
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\2\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Australia under
the Treaty in connection with investigations prior to charges being
filed in Australia. Prior to the 1996 amendment of Title 28, United
States Code, Section 1782, some U.S. courts had interpreted that
provision to require that assistance be provided in criminal matters
only if formal charges have already been filed abroad, or are
``imminent,'' or ``very likely.'' McCarthy, ``A Proposed Uniform
Standard for U.S. Courts in Granting Requests for International
Judicial Assistance,'' 15 Fordham Int'l Law J. 772 (1991). The 1996
amendment effectively overruled these decisions by amending subsec. (a)
to state ``including criminal investigation conducted before formal
accusation.'' In any event, this Treaty was intentionally written to
cover criminal investigations that have just begun as well as those
that are nearly completed; it draws no distinction between cases in
which charges are already pending, ``imminent,'' ``very likely,'' or
``very likely very soon.'' Thus, U.S. courts should execute requests
under the Treaty without examining such factors.
\3\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This interpretation poses an
unnecessary obstacle to the execution of requests concerning matters
which are at the investigatory stage, or which are customarily handled
by administrative officials in the Requesting State. Since this
paragraph of the Treaty specifically permits requests to be made in
connection with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
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Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Paragraph 3 contains a standard provision in United States
mutual legal assistance treaties \5\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Australia by
letters rogatory, an avenue of international assistance that
the Treaty leaves undisturbed. Similarly, the paragraph
provides that the Treaty is not intended to create any right in
a private person to suppress or exclude evidence provided
pursuant to the Treaty, or to impede the execution of a
request.
---------------------------------------------------------------------------
\5\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Australia on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. The Australian Central Authority would make all
requests emanating from officials in Australia.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \6\
Paragraph 2 also states that for Australia the Central
Authority shall be the Attorney General of Australia or the
person designated by Australia's Governor General to be the
Minister responsible for the administration of the legislation
relating to mutual legal assistance in criminal matters.
---------------------------------------------------------------------------
\6\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
Article 3 specifies the limited classes of cases in which
assistance may be denied under the Treaty.
Paragraph 1(a) permits the Requested State to deny the
request if it relates to a political offense, and Article
3(1)(b) permits denial if the request involves an offense under
military law which would not be an offense under ordinary
criminal law. These restrictions are similar to those found in
other mutual legal assistance treaties. The Central Authorities
no doubt will employ jurisprudence similar to that used in the
extradition treaties to determine what are ``political
offenses.''
Paragraph 1(c) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or essential interests of that
State. All United States mutual legal assistance treaties
permit the Requested State to decline to execute a request
which would prejudice its essential interests.
The ground for denial of assistance would include cases in
which assistance might involve disclosure of information that
is classified for national security reasons. It is anticipated
that the United States Department of Justice, in its role as
Central Authority for the United States, would work closely
with the Department of State and other government agencies to
determine whether to execute a request that might fall in this
category.
In general, the phrase ``essential interests'' was intended
to narrowly limit the class of cases in which assistance may be
denied. It would not be enough that the Requesting State's case
is one that would be inconsistent with public policy had it
been brought in the Requested State. Rather, the Requested
State must be convinced that execution of the request would
seriously conflict with significant public policy. An example
might be a request involving prosecution by the Requesting
State of conduct which occurred in the Requested State and is
constitutionally protected in that State.
However, it was agreed that ``essential interests'' could
include interests unrelated to national military or political
security, and be invoked if the execution of a request would
violate essential United States interests related to the
fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph 1(c) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \7\
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\7\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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Section 8 of Australia's Mutual Assistance Law contains
mandatory and discretionary bases for denying mutual assistance
requests. \8\ Australia considers these bases for denial to be
express statutory limitations on its Central Authority's
ability to execute requests, and firmly believes that Australia
has an ``essential interest'' in enforcing this aspect of its
laws. Therefore, it was agreed that Australia may cite Article
3(2) to deny a request from the United States if that request
would be subject to denial under Section 8 of Australia's law,
as that law read on the date that the Treaty was signed. An
exchange of diplomatic notes accompanying the treaty describes
the understanding of the Parties on this matter.
---------------------------------------------------------------------------
\8\ Section 8(1) states that Australia's Attorney General must deny
an assistance request if, in his opinion: (a) it relates to the
prosecution or punishment of a person for an offense of a political
character; (b) there are substantial grounds for believing that the
request is made to prosecute or punish the person for an offense of a
political character; (c) there are substantial grounds for believing
that the request was made for the purpose of prosecuting, punishing, or
otherwise causing prejudice to a person due to the person's race, sex,
religion, nationality, or political opinions; (d) the request relates
to a person for an act or omission that would be an offense under
military law but not an offense under ordinary criminal law if it had
occurred in Australia; (e) granting the request would prejudice
Australia's sovereignty, security, or national interests, or the
essential interests of an Australian state or territory; (f) the
request relates to prosecution for an offense for which the person has
already been acquitted or pardoned in the foreign state, or has
undergone the punishment for the offense in the foreign state; or (g)
the foreign state is not a third State to which the Mutual Assistance
in Criminal Matters Act applies. Section 8(2) of the Act states that
the Attorney General may deny an assistance request if: (a) it relates
to conduct which, if it occurred in Australia, would not be an offense;
(b) it relates to conduct which occurred outside of the requesting
state, and a similar act or omission occurring outside Australia in
similar circumstances would not have constituted an Australian offense;
(c) it relates to conduct which, if it had occurred in Australia, would
have constituted an offense, but the person responsible could not be
prosecuted by reason of lapse of time or any other reason; (d)
providing assistance would prejudice an Australian criminal
investigation; (e) providing assistance might prejudice the safety of
any person in or outside of Australia; or (f) providing assistance
would impose an excessive burden on the resources of Australia, its
States, or Territories.
---------------------------------------------------------------------------
The delegations also discussed an Australian proposal to
limit assistance in death penalty cases. Australia has
abolished the death penalty, and as a matter of policy it
declines to provide assistance to other nations if the person
under investigation might receive the death penalty in that
other state. The mutual assistance treaties that Australia is
negotiating with its Asian neighbors contain restrictions on
assistance in death penalty cases, \9\ and Australia felt that
similar restrictions should be contained in this Treaty. The
U.S. delegation was not willing to foreclose cooperation in
this class of serious cases. Negotiations nearly broke down
over this issue, but finally it was agreed that if Australian
law explicitly made the possible imposition of the death
penalty a basis for denying assistance, Australia could treat
that legal prohibition as an ``essential interest'' under
Article 3(1)(c). In September, 1996, Australia's Parliament
enacted the ``Mutual Assistance in Criminal Matters Legislation
Amendment Bill 1996,'' amending Section 8 of the Mutual
Assistance in Criminal Matters Act 1987 to expressly require
denial of requests in death penalty cases. Australian officials
assured the U.S. that as a practical matter assistance would be
provided in most death penalty cases, especially at the pre-
indictment stage. The fact that Australia is required by law to
limit mutual assistance in capital cases and Australia's
concessions on the practical implementation of the law
persuaded the U.S. delegation to accept, reluctantly, this
undesirable limitation on the scope of Treaty assistance.
---------------------------------------------------------------------------
\9\ Australia's neighbors sometimes execute Australian citizens for
possessing small amounts of drugs.
---------------------------------------------------------------------------
Extradition treaties sometimes condition the surrender of
fugitives upon a showing of ``dual criminality'', i.e., proof
that the facts underlying the offense in the Requesting State
would also constitute an offense had they occurred in the
Requested State. Most mutual assistance treaties do not require
dual criminality for cooperation, and many such treaties
expressly state that assistance may be provided even when the
facts under investigation in the Requesting State would not be
a crime in the Requested State. However, Section 8 of
Australia's mutual legal assistance law permits assistance to
be denied if dual criminality is lacking, and hence dual
criminality may be deemed an ``essential interest'' under
Article 3 of this treaty. During the negotiations, the United
States delegation received assurances from the Australia
delegation that assistance would be available under the Treaty
to U.S. investigations of major crimes such as drug
trafficking, terrorism, organized crime and racketeering, money
laundering, tax fraud or tax evasion, and crimes against
environmental laws.
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \10\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
---------------------------------------------------------------------------
\10\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations.'' A request in
another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power to execute the
request. This provision is not intended or understood to
authorize the use of the grand jury in the United States for
the collection of evidence pursuant to a request from
Australia. Rather, it is anticipated that when a request from
Australia requires compulsory process for execution, the United
States Department of Justice would ask a federal court to issue
the necessary process under Title 28, United States Code,
Section 1782, and the provisions of the Treaty. \11\
---------------------------------------------------------------------------
\11\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for
representing the Requesting State in any proceedings in the
Requested State arising out of the request for assistance.
Thus, it is understood that if execution of the request entails
action by a judicial or administrative agency, the Central
Authority of the Requested State shall arrange for the
presentation of the request to that court or agency at no cost
to the Requesting State. Since the cost of retaining counsel
abroad to present and process letters rogatory is sometimes
quite high, this provision for reciprocal legal representation
in Paragraph 2 is a significant advance in international legal
cooperation. It is also understood that should the Requesting
State choose to hire private counsel for a particular request,
it is free to do so at its own expense.
Paragraph 3 provides that ``[r]equests shall be executed in
accordance with the laws of the Requested State except to the
extent that this Treaty provides otherwise.'' Thus, the method
of executing a request for assistance under the Treaty must be
in accordance with the Requested State's internal laws absent
specific contrary procedures in the Treaty itself. Neither
State is expected to take any action pursuant to a treaty
request which would be prohibited under its internal laws. For
the United States, the Treaty is intended to be self-executing;
no new or additional legislation will be needed to carry out
the obligations undertaken.
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there may be significant differences between the
procedures which must be followed by United States and
Australia authorities in collecting evidence in order to assure
the admissibility of that evidence at trial. For instance,
United States law permits documentary evidence taken abroad to
be admitted in evidence if the evidence is duly certified and
the defendant has been given fair opportunity to test its
authenticity. \12\ Australia law currently contains no similar
provision. Thus, documents assembled in Australia in strict
conformity with Australian procedures on evidence might not be
admissible in United States courts. Similarly, United States
courts utilize procedural techniques such as videotape
depositions to enhance the reliability of evidence taken
abroad, and some of these techniques, while not forbidden, are
not used in Australia.
---------------------------------------------------------------------------
\12\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
The Treaty's primary goal of enhancing law enforcement in
the Requesting State could be frustrated if the Requested State
were to insist on producing evidence in a manner which renders
the evidence inadmissible or less persuasive in the Requesting
State. For this reason, Paragraph 3 requires the Requested
State to follow the procedure outlined in the request to the
extent that it can, even if the procedure is not that usually
employed in its own proceedings. However, if the procedure
called for in the request is unlawful in the Requested State
(as opposed to simply unfamiliar there), the appropriate
procedure under the law applicable for investigations or
proceedings in the Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested State may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \13\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\13\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.- Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, Nov. 13, 1994, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \14\
Article 6 states that the Requesting State will pay fees of
expert witnesses, translation and transcription costs, and
allowances and expenses related to travel of persons pursuant
to Articles 10 and 11.
---------------------------------------------------------------------------
\14\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 13, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 13, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
It will be recalled that Article 4(2)(d) states that the
Requesting State must specify the purpose for which the
information or evidence sought under the Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it. If assistance
is provided with a condition under this paragraph, the U.S.
could deny public disclosure under the Freedom of Information
Act.
It was understood that in some cases the Requested State
may not deem a ``best efforts'' undertaking sufficient to
protect its interests, and it may require more comprehensive
assurances or deny the request, if the Treaty contains a basis
for doing so. For example, currency transaction reports (CTR)
are confidential in Australia, and were the United States to
seek access to CTRs in the possession of the Australian
Government, and Australia felt the ``best efforts`` commitment
in Article 7(2) were insufficient, it could exercise discretion
under Article 9(2) to deny the request.
The Australian delegation indicated that use limitations
would be imposed only in exceptional cases, or in cases in
which Australian law enforcement authorities themselves would
be subject to use and disclosure limitations. The United States
delegation assured the Australian delegation that the United
States would not seek information from Australia on a broader
basis than Australian authorities could obtain that
information.
The Australian delegation expressed particular concern that
information it might supply in response to a request by the
United States under the Treaty not be subject to disclosure
under the Freedom of Information Act. It was agreed that this
clause of the Treaty, as drafted, would mean that a Freedom of
Information Act request for information provided under the
Treaty would be denied.
Paragraph 3 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
paragraphs 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that an Australia authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Taking Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom evidence is sought shall be compelled, if necessary,
to appear and testify or produce documents, records, or other
articles of evidence. The compulsion contemplated by this
article can be accomplished by subpoena or any other means
available under the law of the Requested State.
Paragraph 1, when read together with Article 5(3), ensures
that no person will be compelled to furnish information if he
has a right not to do so under the law of the Requested State.
Thus, a witness questioned in the United States pursuant to a
request from Australia is guaranteed the right to invoke any of
the testimonial privileges (e.g., attorney client,
interspousal) available in the United States as well as the
constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \15\ A witness testifying in
Australia may raise any of the similar privileges available
under Australian law.
---------------------------------------------------------------------------
\15\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions, either directly or through a local legal
representative, during the taking of testimony under this
article. Paragraph 4 requires that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \16\ Paragraph 5 states that documents, records, and
articles of evidence produced pursuant to this article may be
authenticated by an attestation, including, in the case of
business records, authentication in the manner indicated in
Form A appended to the Treaty. Thus, the provision establishes
a procedure for authenticating business records in a manner
similar to Title 18, United States Code, Section 3505. \17\ It
is understood that this paragraph provides for the
admissibility of authenticated documents as evidence without
additional foundation or authentication. With respect to the
United States, this paragraph is self-executing, and does not
need implementing legislation.
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\16\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, Supra note 13, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 13,
art. 8(4).
\17\ Title 18, U.S. Code, Section 3505(c)(2), requires that an
attestation of foreign business records be sworn to or affirmed on
penalty of criminal punishment for false statement or false attestation
in the foreign state. Australia assured the U.S. that the making of a
false statement on Form A before an Australian judicial authority would
be punishable as a criminal offense in the Australian state or
territory where made. See, e.g., Secs. 327 and 330, Crimes Act 1900
(Australian Capital Territory); Secs. 317, 327, and 330, Crimes Act
1900 (New South Wales); Secs. 96, 97, 99, and 119, Criminal Code
(Northern Territory); Secs. 123, 124, 193, and 194, Criminal Code
(Queensland).
---------------------------------------------------------------------------
Paragraph 5 provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance or materiality) would still
have to be satisfied in each case.
Paragraph 6 states that evidence may also be authenticated
by any other form or manner prescribed by either Central
Authority. It is anticipated that this provision will be of
particular value in Australian requests, and United States
requests for evidence to which Title 18, United States Code,
Section 3505 is inapplicable. In such cases, the Central
Authority will state the manner of authentication for the
evidence sought.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available documents, records, or information
in the possession of government departments and agencies in the
Requested State. The term ``government departments and
agencies'' includes all executive, judicial, and legislative
units of the Federal, State, and local level in each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Australia under this article in
appropriate cases. \18\
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\18\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
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Paragraph 3 states that documents provided under this
article may be authenticated by the official in charge of
maintaining them through the use of Form B appended to the
Treaty, and if authenticated in this manner, the evidence shall
be admissible in evidence in the courts of the United States.
Thus, the Treaty establishes a procedure for authenticating
official foreign documents that is consistent with Rule 902(3)
of the Federal Rules of Evidence and Rule 44 of the Federal
Rules of Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible,'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Paragraph 4 states that documents provided under this
article may also be authenticated by any other form or manner
prescribed by either Central Authority. In such cases, the
Central Authority will state the manner of authentication for
the evidence sought.
Article 10--Assistance in the Requesting State
This article provides that upon request, the Requested
State shall request the consent of persons who are located in
its territory to travel to the Requesting State to appear as a
witness in the Requesting State or assist in investigations,
prosecutions, or proceedings in the Requesting State. It shall
notify the Requesting State of such person's response. An
appearance in the Requesting State under this article is not
mandatory, and the invitation may be refused by the prospective
witness. The Requesting State would be expected to pay the
expenses of such an appearance pursuant to Article 6 if
requested by the person whose appearance is sought.
The article further provides that the person shall be
informed of the amount and kind of expenses which the
Requesting State will provide in a particular case. It is
assumed that such expenses would normally include the costs of
transportation, and room and board. When the person is to
appear in the United States, a nominal witness fee would also
be provided.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \19\
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\19\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \20\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \21\
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\20\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
10, art. 26.
\21\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
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Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
needed for purposes of assistance under this Treaty may be
transferred to the Requested State if the person consents and
if the Central Authorities of both States agree. This would
also cover situations in which a person in custody in the
United States on a criminal matter has sought permission to
travel to another country to be present at a deposition being
taken there in connection with the case. \22\
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\22\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph 3(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
3(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Paragraph 3(e) requires that if the sending State advises
the receiving State that the person sought is no longer
required to be held in custody, the person transferred shall be
released from custody and be treated as a person who appeared
voluntarily in the Requesting State pursuant to Article 10.
Article 12--Safe Conduct
Paragraph 1 provides that a person who is in the Requesting
State pursuant to Articles 10 or 11 shall not be served with
process, or be detained or subjected to any restriction of
personal liberty by reason of acts or convictions which
preceded the witness' departure from the Requested State. It is
understood that this provision does not prevent the prosecution
of a person for perjury or any other crime committed while in
the Requesting State.
Article 12(2) states that the safe conduct guaranteed in
this article expires twenty five days after the Central
Authority of the Requesting State has notified the Central
Authority of the Requested State that the person's presence is
no longer required, or if he leaves the territory of the
Requesting State and thereafter voluntarily returns to it. This
safe conduct period is longer than that prescribed in other
mutual legal assistance treaties because of the significant
distance between the United States and Australia and the
difficulties of travel arrangements.
Article 13--Location or Identification of Persons
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) if the Requesting State seeks such
information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons sought by the Requesting State. The extent
of such efforts will vary, of course, depending on the quality
and extent of the information provided by the Requesting State
concerning the suspected location and last known location.
The obligation to locate persons is limited to persons that
are or may be in the territory of the Requested State. Thus,
the United States would not be obliged to attempt to locate
persons which may be in third countries. In all cases, the
Requesting State would be expected to supply all available
information about the last known location of the persons
sought.
Article 14--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers at the
request of the Requesting State. Similar provisions appear in
several U.S. mutual legal assistance treaties.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Australia to follow a
specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 15--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \23\ This article
creates a formal framework for handling such requests.
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\23\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (Search warrant issued February 24, 1984).
---------------------------------------------------------------------------
Article 15 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Australia will have to be supported by a
showing of probable cause for the search. A United States
request to Australia would have to satisfy the corresponding
evidentiary standard there.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized article shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the United States, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced under
this article. As in Articles 8(5) and 9(3), the injunction that
the certificates be admissible without additional
authentication leaves the trier of fact free to bar use of the
evidence itself, in spite of the certificate, if there is some
reason to do so other than authenticity or chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the
article to be transferred. This article is similar to
provisions in many other United States mutual legal assistance
treaties. \24\
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\24\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, Dec.
4, 1990; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 17;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 13; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 14; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jul. 3, 1986.
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Article 16--Return of Evidence
This article provides that any item provided under the
Treaty must be returned to the Requested State when no longer
needed for the relevant investigation, prosecution, or
proceeding. This would normally be invoked only if the Central
Authority of the Requested States requests it, normally at the
time the item is provided to the Requesting State. It is
anticipated that unless original records, or items of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development in practice.
Article 17--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Australia in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
Paragraph 1 provides that upon request, each Central
Authority shall endeavor to locate, trace, restrain, freeze,
seize, forfeit, or confiscate the proceeds and
instrumentalities of crime, to the extent it is permitted to do
so by its law. The term ``proceeds or instrumentalities'' was
intended to include things such as money, vessels, or other
valuables either used in the crime or purchased or obtained as
a result of the crime.
Pursuant to Paragraph 1, the Central Authority of the State
in which the proceeds or instrumentalities are located may take
whatever action is appropriate under its law. For instance, if
the assets in question are located in the United States and
were obtained as a result of a fraud in Australia, they could
be seized under Title 18, United States Code, Section 981, in
aid of a prosecution under Title 18, United States Code,
Section 2314, \25\ or be subject to a temporary restraining
order in anticipation of a civil action for the return of the
assets to the lawful owner. Proceeds of a foreign kidnapping,
robbery, extortion or a fraud by or against a foreign bank are
civilly and criminally forfeitable in the United States since
these offenses are predicate offenses under U.S. money
laundering laws. \26\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
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\25\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\26\ Title 18, United States Code, Section 1956(c)(7)(B).
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If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B) allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \27\ The United States delegation
expects that Article 17 of the Treaty will enable this
legislation to be even more effective.
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\27\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\28\ Paragraph 2 is consistent with this framework, and will
enable a Contracting Party having control of forfeited or
confiscated proceeds or instrumentalities to transfer such
property or the proceeds of its sale to the other Party at the
former's discretion and to the extent permitted by its laws.
---------------------------------------------------------------------------
\28\ See Title 18, United States Code, Section 981 (i)(1).
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Paragraph 3 satisfies a requirement of Australian law by
providing that where the Requesting State seeks the enforcement
of a court order restraining, forfeiting, confiscating, or
otherwise immobilizing proceeds of crime located in the
Requested State, the request shall be accompanied by the
original signed order, or a copy thereof, and in either case
should bear the seal of the Central Authority of the Requesting
State.
Article 18--Compatibility with Other Arrangements
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international treaties or arrangements. Article 18
also provides that the Treaty shall not prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Australian law on letters rogatory completely undisturbed,
and would not alter any pre-existing agreements concerning
investigative assistance. \29\
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\29\ See e.g., the U.S.-Australia Agreement on the Procedures for
Mutual Assistance in Administration of Justice in connection with the
Lockheed Aircraft Corporation Matter, signed at Washington September
13, 1976, 27 U.S.T. 3424, T.I.A.S. 8372.
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Article 19--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another. Practical measures of this kind might include methods
of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \30\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
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\30\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 14, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 14, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 24, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 24, art. 18.
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Article 20--Entry Into Force and Termination
Paragraph 1 contains the procedure for the entry into force
of the Treaty. Since Australia approval process for treaties of
this kind is different from that in the United States, and the
approval of Parliament is not necessary, there will not be
instruments of ratification. Instead, the Treaty will enter
into force when the Contracting Parties exchange written
notification that they have complied with their respective
requirements for entry into force.
Paragraph 2 provides that the Treaty shall apply to any
request presented pursuant to it, even if the relevant acts or
omissions occurred before the date on which the Treaty entered
into force. Provisions of this kind are common in law
enforcement agreements.
Paragraph 3 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and Barbados on Mutual Legal Assistance in Criminal Matters
On February 28, 1996, the United States signed a treaty
with Barbados 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 expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking in
the eastern Caribbean, where Barbados is a regional leader.
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. Barbados has its
own mutual legal assistance laws in place for implementing the
Treaty, and does not anticipate enacting new legislation. \1\
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\1\ ``An Act to make provision with respect to the scheme relating
to Mutual Assistance in Criminal Matters within the Commonwealth and to
facilitate its operation in Barbados, and to make provision concerning
mutual assistance in criminal matters between Barbados and countries
other than Commonwealth countries'' (2nd April 1992), hereinafter
``Barbados Mutual Assistance in Criminal Matters Act, 1992.''
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The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Barbados,
and other legal measures taken prior to the filing of formal
charges in either State. \2\ The term ``proceedings'' was
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
\3\ It was also agreed that since the phrase ``proceedings
related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \4\ yet such proceedings are covered by the
Treaty.
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\2\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Barbados under the
Treaty in connection with investigations prior to charges being filed
in Barbados. Prior to the 1996 amendments to Title 28, United States
Code, Section 1782, some U.S. courts had interpreted that provision to
require that assistance be provided in criminal matters only if formal
charges have already been filed abroad, or are ``imminent,'' or ``very
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in
Granting Requests for International Judicial Assistance,'' 15 Fordham
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem,
however, by amending subsec. (a) to state ``including criminal
investigation conducted before formal accusation.'' In any event, this
Treaty was intentionally written to cover criminal investigations that
have just begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\3\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this article, however, makes it clear that there is no
general requirement of dual criminality under this Treaty for
cooperation. Thus, assistance may be provided even when the
criminal matter under investigation in the Requesting State
would not be a crime in the Requested State ``[e]xcept as
otherwise provided in this Treaty,'' a phrase which refers to
Article 3(1)(e), under which the Requested State may, in its
discretion, require dual criminality for a request under
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters). Article 1(3) is important
because United States and Barbados criminal law differ
significantly, and a general dual criminality rule would make
assistance unavailable in many significant areas. This type of
limited dual criminality provision is found in other U.S.
mutual legal assistance treaties. \5\ During the negotiations,
the United States delegation received assurances from the
Barbados delegation that assistance would be available under
the Treaty to the United States investigations of key crimes
such as drug trafficking, fraud, money laundering, tax
offenses, antitrust offenses, and environmental protection
matters.
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\5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
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Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \6\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Barbados by letters
rogatory, an avenue of international assistance that the Treaty
leaves undisturbed. Similarly, the paragraph provides that the
Treaty is not intended to create any right in a private person
to suppress or exclude evidence provided pursuant to the
Treaty, or to impede the execution of a request.
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\6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Barbados on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. The Barbadian Central Authority would make all requests
emanating from officials in Barbados.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \7\
Paragraph 2 also states that the Attorney General of Barbados
or a person designated by the Attorney General will serve as
the Central Authority for Barbados.
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\7\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or other essential public
interests of that State. All United States mutual legal
assistance treaties contain provisions allowing the Requested
State to decline to execute a request if execution would
prejudice its essential interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
The delegations also agreed that the phrase ``essential
public interests'' was intended to narrowly limit the class of
cases in which assistance may be denied. It would not be enough
that the Requesting State's case is one that would be
inconsistent with public policy had it been brought in the
Requested State. Rather, the Requested State must be convinced
that execution of the request would seriously conflict with
significant public policy. An example might be a request
involving prosecution by the Requesting State of conduct which
occurred in the Requested State and is constitutionally
protected in that State.
However, it was agreed that ``essential public interests''
could include interests unrelated to national military or
political security, and be invoked if the execution of a
request would violate essential United States interests related
to the fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph 1(b) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \8\
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\8\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
---------------------------------------------------------------------------
In general, the mere fact that the execution of a request
would involve the disclosure of records protected by bank or
business secrecy in the Requested State would not justify
invocation of the ``essential public interests'' provision.
Indeed, a major objective of the Treaty is to provide a formal,
agreed channel for making such information available for law
enforcement purposes. However, Barbados' delegation stressed
that in exceptional circumstances the disclosure of business or
banking secrets could be of such significant importance that it
could prejudice that State's ``essential public interests.''
For example, if the disclosure of particular business records
in responding to a United States request for assistance could
substantially prejudice an entire industry, such as the off-
shore banking or reinsurance industries, which is of special
importance to the Barbadian economy, an ``essential public
interests'' denial might be appropriate. It should be noted
that this provision is bilateral, and in similar circumstances
could be used by the United States to prevent a similar
prejudice to its essential public interests. The Barbadian view
of this provision is thus similar to the Swiss view of Article
3(2) of the U.S.-Switzerland Treaty. \9\
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\9\ Technical Analysis to the Treaty between the U.S. and
Switzerland on Mutual Assistance in Criminal Matters, signed May 25,
1973. U.S. Senate Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
Paragraph (1)(c) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph (1)(d) permits denial of a request if it involves
a political offense. \10\It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
---------------------------------------------------------------------------
\10\ See Section 18(2)(a) and 18(2)(b), Barbados Mutual Assistance
Act, 1992.
---------------------------------------------------------------------------
Paragraph (1)(e) permits denial of a request if there is no
``dual criminality'' with respect to requests made pursuant to
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters).
Finally, Paragraph (1)(f) permits denial of the request if
execution would be contrary to the Constitution of the
Requested State. This provision was deemed necessary under
Barbadian law, \11\ and is similar to clauses in other United
States mutual legal assistance treaties. \12\
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\11\ Section 18(2)(d), Barbados Mutual Assistance Act, 1992.
\12\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989,
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13,
1989, art. III(1)(d).
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Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \13\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
---------------------------------------------------------------------------
\13\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Barbados. Rather, it is
anticipated that when a request from Barbados requires
compulsory process for execution, the United States Department
of Justice would ask a federal court to issue the necessary
process under Title 28, United States Code, Section 1782, and
the provisions of the Treaty. \14\
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\14\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) reads ``[t]he competent
judicial or other authorities of the Requested State shall have
power to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in the execution of mutual
assistance requests. The phrase refers to ``judicial or other
authorities'' to include all those officials authorized to
issue compulsory process that might be needed in executing a
request. For example, in Barbados, justices of the peace and
senior police officers are empowered to issue certain kinds of
compulsory process under certain circumstances.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Paragraph 2 is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \15\, and provides,
that ``[r]equests shall be executed in accordance with the
internal laws and procedures of the Requested State, except to
the extent that this Treaty provides otherwise.'' Thus, the
method of executing a request for assistance under the Treaty
must be in accordance with the Requested State's internal laws
absent specific contrary procedures in the Treaty itself.
Neither State is expected to take any action pursuant to a
treaty request which would be prohibited under its internal
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to
carry out the obligations undertaken.
---------------------------------------------------------------------------
\15\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 12.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Barbados
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documentary evidence taken abroad to be
admitted in evidence if the evidence is duly certified and the
defendant has been given fair opportunity to test its
authenticity. \16\ Barbados law currently contains no similar
provision. Thus, documents assembled in Barbados in strict
conformity with Barbadian procedures on evidence might not be
admissible in United States courts. Similarly, United States
courts utilize procedural techniques such as videotape
depositions to enhance the reliability of evidence taken
abroad, and some of these techniques, while not forbidden, are
not used in Barbados.
---------------------------------------------------------------------------
\16\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts. Both delegations
agreed that the Treaty's primary goal of enhancing law
enforcement in the Requesting State could be frustrated if the
Requested State were to insist on producing evidence in a
manner which renders the evidence inadmissible or less
persuasive in the Requesting State. For this reason, Paragraph
3 requires the Requested State to follow the procedure outlined
in the request to the extent that it can, even if the procedure
is not that usually employed in its own proceedings. However,
if the procedure called for in the request is unlawful in the
Requested State (as opposed to simply unfamiliar there), the
appropriate procedure under the law applicable for
investigations or proceedings in the Requested State will be
utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested Party may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \17\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\17\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \18\
Article 6 does, however, oblige the Requesting State to pay
fees of expert witnesses, translation, interpretation and
transcription costs, and allowances and expenses related to
travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\18\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 17, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 5, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it.
The Barbados delegation expressed particular concern that
information supplied by Barbados in response to United States
requests must receive real and effective confidentiality, and
not be disclosed under the Freedom of Information Act. Both
delegations agreed that since this article permits the
Requested State to prohibit the Requesting State's disclosure
of information for any purpose other than that stated in the
request, a Freedom of Information Act request that seeks
information that the United States obtained under the Treaty
would have to be denied if the United States received the
information on the condition that it be kept confidential.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that there is an obligation to do
so under the Constitution of the Requesting State in a criminal
prosecution. Any such proposed disclosure shall be notified by
the Requesting State to the Requested State in advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
paragraphs 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Barbados authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article.
Paragraph 4, when read together with Article 5(3), ensures
that no person will be compelled to furnish information if he
has a right not to do so under the law of the Requested State.
Thus, a witness questioned in the United States pursuant to a
request from Barbados is guaranteed the right to invoke any of
the testimonial privileges (e.g., attorney client,
interspousal) available in the United States as well as the
constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \19\ A witness testifying in
Barbados may raise any of the similar privileges available
under Barbadian law.
---------------------------------------------------------------------------
\19\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \20\
---------------------------------------------------------------------------
\20\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 17, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 5,
art. 8(4).
---------------------------------------------------------------------------
Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
this paragraph provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance, and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Barbados under this article in
appropriate cases. \21\
---------------------------------------------------------------------------
\21\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Parties to provide tax return
information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated in accordance with the procedures
specified in the request, and if authenticated in this manner,
the evidence shall be admissible in evidence in the Requesting
State. Thus, the Treaty establishes a procedure for
authenticating official foreign documents that is consistent
with Rule 902(3) of the Federal Rules of Evidence and Rule 44,
Federal Rules of Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6 if requested by the person whose appearance is
sought.
Paragraph l provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while he is in
the Requesting State. Most U.S. mutual legal assistance
treaties anticipate that the Central Authority will determine
whether to extend such safe conduct, but under the Treaty with
Barbados, the Central Authority merely reports whether safe
conduct has been extended. This is because in Barbados only the
Director of Public Prosecutions can extend such safe conduct,
and the Attorney General (who is Central Authority for Barbados
under Article 3 of the Treaty) cannot do so. This ``safe
conduct'' is limited to acts or convictions that preceded the
witness's departure from the Requested State. It is understood
that this provision would not prevent the prosecution of a
person for perjury or any other crime committed while in the
Requesting State.
Paragraph 3 states that the safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer
required, or if the person leaves the territory of the
Requesting State and thereafter returns to it. However, the
competent authorities of the Requesting State may extend the
safe conduct up to fifteen days if they determine that there is
good cause to do so. For the United States, the ``competent
authorities'' for these purposes would be the Central
Authority.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \22\
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\22\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \23\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \24\
---------------------------------------------------------------------------
\23\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
13, art. 26.
\24\ It is also consistent with Sections 10 and 23, Barbados Mutual
Assistance Act, 1992, and with Title 18, United States Code, Section
3508.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State
for that purpose if the person consents and if the Central
Authorities of both States agree. This would also cover
situations in which a person in custody in the United States on
a criminal matter has sought permission to travel to another
country to be present at a deposition being taken there in
connection with the case. \25\
---------------------------------------------------------------------------
\25\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State.
\26\ The extent of such efforts will vary, of course, depending
on the quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
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\26\ This is consistent with Barbados law. See Section 20, Barbados
Mutual Assistance Act, 1992.
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The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. This is
consistent with Barbados law, \27\ and identical provisions
appear in several U.S. mutual legal assistance treaties.
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\27\ Section 24, Barbados Mutual Assistance Act, 1992.
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It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Barbados to follow a
specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782, \28\ and Barbados'
courts have the power to execute such requests, under Section
21 of the Barbados Mutual Assistance Act 1992. \29\ This
article creates a formal framework for handling such requests.
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\28\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984).
\29\ See,In the Matter of the Issuance and Execution of A Search
Warrant at Premises in Barbados and the Removal of Certain Articles
Documents and Property Belonging to Applicants; TC Interglobe Services,
BAJ Marketing, Triple Eight Int'l Services, BLC Services, Facton
Services vs. Attorney General, No. 1177 of 1996 in the High Court of
Justice, Civil Division, Barbados (search warrant issued July 12,
1996).
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Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Barbados will have to be supported by a
showing of probable cause for the search. A United States
request to Barbados would have to satisfy the corresponding
evidentiary standard there, which is ``a reasonable basis to
believe'' that the specified premises contains articles likely
to be evidence of the commission of an offense.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced under
this article. As in Articles 8(5) and 9(3), the injunction that
the certificates be admissible without additional
authentication leaves the trier of fact free to bar use of the
evidence itself, in spite of the certificate, if there is some
reason to do so other than authenticity or chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \30\
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\30\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 20;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 17; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jan. 6, 1994.
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The Barbados delegation explained that it is the long-
standing policy of its Government to permit only Barbadian law
enforcement officials to be present and participate at the
execution of the search of a private home, and hence it would
not be able to extend permission for United States officials to
be present and participate in the execution of a request to
Barbados for a such a search and seizure under Article 14 of
the Treaty.
Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. The delegations understood
that this requirement would be invoked only if the Central
Authority of the Requested State specifically requests it at
the time that the items are delivered to the Requesting State.
It is anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Barbados in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Barbados, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \31\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the U.S.
since these offenses are predicate offenses under U.S. money
laundering laws. \32\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
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\31\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\32\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B) allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \33\ The United States delegation
expects that Article 16 of the Treaty will enable this
legislation to be even more effective.
---------------------------------------------------------------------------
\33\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \34\
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\34\ In Barbados, unlike the U.S., the law does not currently allow
for civil forfeiture. However, Barbados law does permit forfeiture in
criminal cases, and ordinarily a defendant must be convicted in order
for Barbados to confiscate the defendant's property.
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\35\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
---------------------------------------------------------------------------
\35\ See Title 18, United States Code, Section 981 (i)(1).
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Article 17--Compatibility with Other Arrangements
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Barbados law on letters rogatory completely undisturbed,
and would not alter any pre-existing agreements concerning
investigative assistance. \36\
---------------------------------------------------------------------------
\36\ E.g., the U.S.-Barbados Agreement for the Exchange of
Information With Respect to Taxes, Nov. 3, 1984, T.I.A.S. 11203.
---------------------------------------------------------------------------
Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties.
37 It is anticipated that the Central Authorities
will conduct annual consultations pursuant to this article.
---------------------------------------------------------------------------
\37\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 17, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 30, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 5, art. 18.
---------------------------------------------------------------------------
Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented pursuant to it after it enters into force,
even if the relevant acts or omissions occurred before the date
on which the Treaty entered into force. Provisions of this kind
are common in law enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and Brazil on Mutual Legal Assistance in Criminal Matters
On October 14, 1997, the United States signed a treaty with
Brazil on Mutual Legal Assistance in Criminal Matters (``the
Treaty''). \1\ 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 officials in need of foreign evidence for use in
criminal cases.
---------------------------------------------------------------------------
\1\ In English, the title of the convention reads ``Treaty,'' but
the Brazilian delegation insisted, for reasons of Brazilian practice in
the terminology used to classify different types of international
agreements, that the Portuguese language text of the document use the
term ``Acordo,'' or ``Agreement,'' rather than ``Tratado,'' or Treaty.
Both delegations agreed that the document is subject to advice and
consent by each nation's legislature before ratification and entry into
force. See Article 20.
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The Treaty is expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
international drug and firearms trafficking, money laundering,
large-scale international fraud, and other serious offenses.
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. Brazil has its
own mutual legal assistance legislation, \2\ but it anticipates
the enactment of new or additional legislation for implementing
the Treaty.
---------------------------------------------------------------------------
\2\ Decree of Law No. 3689 of 3 Oct. 1941, and Government Decree
No. 20, 14 August 1990.
---------------------------------------------------------------------------
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 provides for assistance in all matters
involving the investigation, prosecution, and prevention of
offenses, and in proceedings relating to criminal matters.
The negotiators agreed that the term ``investigations''
includes grand jury proceedings in the United States, similar
proceedings in Brazil, and all other legal measures taken prior
to the filing of formal charges in either State. \3\ The term
``proceedings'' was intended to cover the full range of
proceedings in a criminal case, including such matters as bail
and sentencing hearings. \4\ It was also agreed that since the
phrase ``proceedings related to criminal matters'' is broader
than the investigation, prosecution or sentencing process
itself, proceedings covered by the Treaty need not be strictly
criminal in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \5\ yet such proceedings are covered by the
Treaty.
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\3\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Brazil under the
Treaty in connection with investigations prior to charges being filed
in Brazil. Prior to the 1996 amendments to Title 28, United States
Code, Section 1782, some U.S. courts had interpreted that provision to
require that assistance be provided in criminal matters only if formal
charges have already been filed abroad, or are ``imminent,'' or ``very
likely.'' McCarthy, ``A Proposed Unified Standard for U.S. Courts in
Granting Requests for International Judicial Assistance,'' 15 Fordham
Int'l Law Rev. 772 (1991). The better view seems to be that Section
1782 does not contemplate such restrictions. The 1996 amendment to
Section 1782 effectively overruled these decisions, however, by
amending subsec. (a) to state ``including criminal investigation
conducted before formal accusation.'' In any event, this Treaty was
intentionally written to cover criminal investigations that have just
begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending, or are
``imminent,'' or ``very likely,'' or ``very likely very soon.'' Thus,
U.S. courts should execute requests under the Treaty without examining
such factors.
\4\ One United States court has interpreted Title 28, United States
Code, Section 1782 as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This interpretation poses an
unnecessary obstacle to the execution of requests concerning matters
which are at the investigatory stage, or which are customarily handled
by administrative officials in the Requesting Party. Since this
paragraph of the treaty specifically permits requests to be made in
connection with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\5\ Title 21, United States Code, Section 881; Title 18, United
States Code, Section 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this Article makes it clear that there is no requirement
of dual criminality under this Treaty for cooperation, except
with respect to assistance or cooperation in connection with
searches, seizures and forfeitures. Thus, assistance may be
provided even when the criminal matter under investigation in
the Requesting State would not be a crime in the Requested
State. However, if the request relates to a search, seizure, or
forfeiture, the Central Authority of the Requested State must
first determine whether the act to which the request relates is
punishable as an offense under the laws of the Requested State.
This type of limited dual criminality provision is found in
other U.S. mutual legal assistance treaties. \6\ During the
negotiations, the United States delegation received assurances
from the Brazil delegation that assistance would be available
under the Treaty to the United States in investigations of all
major criminal matters, including: narcotics trafficking,
terrorism, organized crime and racketeering, money laundering
(notwithstanding the fact that money laundering is not a crime
in Brazil yet), fraud, Export Control Act violations, child
exploitation or obscenity, tax offenses, antitrust offenses,
and crimes against the environment or endangered species.
---------------------------------------------------------------------------
\6\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
Paragraph 4 contains a unique provision that reads:
``The Parties recognize the particular importance of
combating serious criminal activities, including money
laundering and the illicit trafficking in firearms, ammunition
and explosives. Without limitation to the scope of assistance
established in this Article, the Parties shall provide each
other with assistance in such matters in accordance with this
Treaty.''
This paragraph was included to underscore the Treaty's
applicability to two major law enforcement problems (without
prejudice, of course, to its applicability to other offenses).
The large scale fraud and money laundering, particularly in
public corruption matters, was highlighted recently in the case
of Jorgina Maria de Freitas Fernandes, a Brazilian citizen who
stole $34 million from Brazil's social security system and
moved to Florida with the money. \7\ The disturbing extent to
which drug traffickers and other criminals in Brazil have
obtained access to high-powered firearms manufactured in the
U.S. is also a major problem. Brazilian authorities are moving
to establish liaison with FinCEN on money laundering and have
already begun working closely with the Bureau of Alcohol,
Tobacco, and Firearms, via the U.S. Embassy, on arms
trafficking cases, and the mutual legal assistance treaty could
be used to authenticate evidence obtained through these
channels.
---------------------------------------------------------------------------
\7\ In the case, the Government of Brazil hired a private law firm,
which located the missing money and won a judgment against Fernandes in
Dade County, Florida, Circuit Court for $123 million (including treble
damages).
---------------------------------------------------------------------------
Paragraph 5 is a standard provision in United States mutual
legal assistance treaties \8\ which states that the Treaty is
intended solely for government to government mutual legal
assistance. The Treaty is not intended to provide to private
persons a means of evidence gathering, or to extend to civil
matters. Private litigants in the United States may continue to
obtain evidence from Brazil by letters rogatory, an avenue of
international assistance which this treaty leaves undisturbed.
Similarly, the paragraph provides that the Treaty is not
intended to create any right in a private person to suppress or
exclude evidence thereunder.
---------------------------------------------------------------------------
\8\ United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), cert.
denied., 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each party establish a ``Central
Authority'' for transmission and reception of treaty requests.
The Central Authority of the United States would make all
requests to Brazil on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. \9\ The Brazilian Central Authority would make all
requests emanating from officials in Brazil.
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\9\ The title of the Treaty in English refers to ``Mutual Legal
Assistance,'' but the Brazilian delegation insisted, for stylistic
reasons, that the title in Portuguese read ``Assistencia Judiciaria.''
The U.S. delegation was concerned that the Portuguese might falsely
suggest that the Treaty is limited to assistance to judicial
authorities, but the Brazilian delegation assured the U.S. delegation
that Article 2 makes it clear that assistance is available under the
Treaty to prosecutors, investigators, and other members of the criminal
law enforcement community.
---------------------------------------------------------------------------
The Central Authority for the Requesting Party will
exercise discretion as to the form and content of requests, and
also to the number and priority of requests. The Central
Authority of the Requested Party is responsible for receiving
each request, transmitting it to the appropriate federal or
state agency, court, or other authority for execution, and
insuring that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \10\
Article 2(2) of the Treaty also states that the Brazilian
Ministry of Justice will serve as the Central Authority for
Brazil.
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\10\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. \11\ It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
---------------------------------------------------------------------------
\11\ Brazilian law currently requires that foreign requests for
assistance be transmitted through diplomatic channels to the Justice
Ministry. Article 783-784, Codigo de Processo Penal. The Brazilian
delegation assured the U.S. delegation that new legislation would be
enacted in Brazil to authorize direct communication of requests between
the Central Authorities.
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Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or similar essential interests of
that State. All United States mutual legal assistance treaties
contain provisions allowing the Requested State to decline to
execute a request if execution would prejudice its essential
interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
The delegations also agreed that the phrase ``essential
interests'' was intended to narrowly limit the class of cases
in which assistance may be denied. It would not be enough that
the Requesting State's case is one that would be inconsistent
with public policy had it been brought in the Requested State.
Rather, the Requested State must be convinced that execution of
the request would seriously conflict with significant public
policy. An example might be a request involving prosecution by
the Requesting State of conduct which occurred in the Requested
State and is constitutionally protected in that State.
However, it was agreed that ``essential interests'' could
include interests unrelated to national military or political
security, and be invoked if the execution of a request would
violate essential United States interests related to the
fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph 1(b) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \12\
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\12\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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It was also agreed that ``essential interests'' permits
denial of a request if it involves a political offense. It is
anticipated that the Central Authorities will employ
jurisprudence similar to that used in the extradition treaties
for determining what is a ``political offense.'' These
restrictions are similar to those found in other mutual legal
assistance treaties.
Paragraph (1)(c) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \13\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\13\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973,
art. 26, 27 U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
Paragraph 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations.'' A request in
another form must be confirmed in writing within thirty days
unless the Central Authority of the Requested State agrees
otherwise. Requests must be in the language of the Requested
State unless otherwise agreed.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Brazil. Rather, it is
anticipated that when a request from Brazil requires compulsory
process for execution, the United States Department of Justice
would ask a federal court to issue the necessary process under
Title 28, United States Code, Section 1782, and the provisions
of the Treaty. The third sentence in Article 5(1) reads ``[t]he
courts of the Requested State shall issue subpoenas, search
warrants, or other orders necessary to execute the request.''
\14\ This language reflects an understanding that the Parties
intend to provide each other with every available form of
assistance from judicial and executive branches of government
in the execution of mutual assistance requests.
---------------------------------------------------------------------------
\14\ This paragraph of the Treaty, thus, specifically authorizes
United States courts to use all of their powers to issue subpoenas and
other process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Brazil's Ministry of Justice,
which will be its Central Authority under the Treaty, currently
lacks the power to represent the U.S. before Brazilian courts
in mutual legal assistance treaty matters. Therefore, the
Brazilian delegation assured the U.S. delegation that until
such time as appropriate legislation is in place enabling such
representation, the Brazilian Government's Central Authority
will hire private attorneys to represent the U.S. when our
mutual legal assistance requests are presented to Brazilian
courts. This will require the appropriation of funds, though,
and cannot begin before fiscal year 1998.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \15\, and provides,
that ``[r]equests shall be executed in accordance with the laws
of the Requested State except to the extent that this Treaty
provides otherwise.'' Thus, the method of executing a request
for assistance under the Treaty must be in accordance with the
Requested State's internal laws absent specific contrary
procedures in the Treaty itself. Neither State is expected to
take any action pursuant to a treaty request which would be
prohibited under its internal laws. For the United States, the
Treaty is intended to be self-executing; no new or additional
legislation will be needed to carry out the obligations
undertaken.
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\15\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and
Brazilian authorities in collecting evidence in order to assure
the admissibility of that evidence at trial. For instance,
United States law permits documentary evidence taken abroad to
be admitted in evidence if the evidence is duly certified and
the defendant has been given fair opportunity to test its
authenticity. \16\ Brazilian law currently contains no similar
provision. Thus, documents assembled in Brazil in strict
conformity with Brazilian procedures on evidence might not be
admissible in United States courts. Similarly, United States
courts utilize procedural techniques such as videotape
depositions to enhance the reliability of evidence taken
abroad, and some of these techniques, while not forbidden, are
not used in Brazil.
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\16\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 3 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested Party may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``a description of the subject matter and nature of the
investigation, prosecution, or proceeding'' as required by
Article 4(2)(b). Therefore, Paragraph 5 of Article 5 enables
the Requesting State to call upon the Requested State to keep
the information in the request confidential. \17\ If the
Requested State cannot execute the request without disclosing
the information in question (as might be the case if execution
requires a public judicial proceeding in the Requested State),
or if for some other reason this confidentiality cannot be
assured, the Treaty obliges the Requested State to so indicate,
thereby giving the Requesting State an opportunity to withdraw
the request rather than risk jeopardizing an investigation or
proceeding by public disclosure of the information.
---------------------------------------------------------------------------
\17\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.- Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistace Treaty, supra note 6, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \18\
Article 6 does, however, oblige the Requesting State to pay
fees of expert witnesses, translation, interpretation and
transcription costs, and allowances and expenses related to
travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\18\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 17, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 6, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential or be used only subject to terms and
conditions it may specify. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing inSec. Sec. rticle 7 shall preclude the use or
disclosure of information to the extent that there is an
obligation to do so under the Constitution of the Requesting
State in a criminal prosecution. Any such proposed disclosure
shall be notified by the Requesting State to the Requested
State in advance.
Paragraph 4 states that once information or evidence
obtained under the Treaty has been revealed to the public in a
manner consistent with paragraphs 1 or 2, the Requesting State
is free to use the evidence for any purpose. Once evidence
obtained under the Treaty has been revealed to the public in a
trial, that information effectively becomes part of the public
domain, and is likely to become a matter of common knowledge,
perhaps even be described in the press. The negotiators noted
that once this has occurred, it is practically impossible for
the Central Authority of the Requesting Party to block the use
of that information by third parties.
It should be noted that under Article 1(5), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Brazilian authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article. Paragraph 4, when read together with Article 5(3),
ensures that no person will be compelled to furnish information
if he has a right not to do so under the law of the Requested
State. Thus, a witness questioned in the United States pursuant
to a request from Brazil is guaranteed the right to invoke any
of the testimonial privileges (e.g., attorney client,
interspousal) available in the United States as well as the
constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \19\ A witness testifying in
Brazil may raise any of the similar privileges available under
Brazilian law.
---------------------------------------------------------------------------
\19\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \20\
---------------------------------------------------------------------------
\20\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), TIAS No. 10734, 1359 UNTS 209; U.S.- Bahamas
Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 9(2);
U.S.-Mexico Mutual Legal Assistance Treaty, Supra note 17, art. 7(2);
U.S.-Philippines Mutual egal Assistance Treaty, supra note 6, art.
8(4).
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Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication by means of the
form appended to the Treaty. \21\ Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
this paragraph provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
---------------------------------------------------------------------------
\21\ Brazilian authorities told the U.S. delegation that a person
in Brazil who made a false statement in connection with these
authentication certificates would be subject to prosecution under Art.
342 of Brazil's penal code.
---------------------------------------------------------------------------
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance, and materiality) would still
have to be satisfied in each case.
Article 9--Official Records
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision is necessary
because government files in each State contain some kinds of
information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Brazil under this article in appropriate
cases. \22\
---------------------------------------------------------------------------
\22\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated by the officials in charge of
maintaining them through the use of a form appended to the
Treaty. No further authentication is required. If authenticated
in this manner, the evidence shall be admissible in evidence in
the Requesting State. Thus, the Treaty establishes a procedure
for authenticating official foreign documents that is
consistent with Rule 902(3) of the Federal Rules of Evidence
and Rule 44, Federal Rules of Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite witnesses who are located in its territory
and needed in the Requesting State to travel to the Requesting
State to testify. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6 of the Treaty, and Article 10(1) provides that the
witness shall be informed of the amount and kind of expenses
which the Requesting State will provide in a particular case.
It is assumed that such expenses would normally include the
costs of transportation, room, and board. When the witness is
to appear in the United States, a nominal witness fee would
also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State may, in its discretion, determine that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while he is in
the Requesting State. The safe conduct is limited to acts or
convictions which preceded the witness' departure from the
Requested State. This provision does not prevent the
prosecution of a person for perjury or any other crime
committed while in the Requesting State. Since the decision to
offer such safe conduct may have to be made by the prosecutor
or the judge responsible for the potential criminal charges,
not by the Central Authority alone, the Central Authority may
need to consult with other officials regarding any proposal to
offer safe conduct under this paragraph. With this fact in
mind, the paragraph requires that the Central Authority of the
Requesting State promptly inform the Central Authority of the
Requested State ``whether such safe conduct shall be
extended.''
Paragraph 3 states that the safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer
required, or when he leaves the territory of the Requesting
Party and thereafter returns to it. However, the Central
Authority of the Requesting State may, in its discretion,
extend the safe conduct up to fifteen days.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \23\
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\23\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \24\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \25\
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\24\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
13, art. 26.
\25\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other Sates whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State if
the person consents and if the Central Authorities of both
States agree. This would also cover situations in which a
person in custody in the United States on a criminal matter has
sought permission to travel to another country to be present at
a deposition being taken there in connection with the case.
\26\
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\26\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
extent of such efforts will vary, of course, depending on the
quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. Identical
provisions appear in several U.S. mutual legal assistance
treaties.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Brazil to follow a specified
procedure for service) or by the United States Marshal's
Service in instances in which personal service is requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782, \27\ and Brazil's
courts have the power to execute such requests. This article
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
\27\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984).
---------------------------------------------------------------------------
Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Brazil will have to be supported by a
showing of probable cause for the search. A United States
request to Brazil would have to satisfy the corresponding
evidentiary standard there, which is roughly the same.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the description of the item, and the
integrity of its condition.
This paragraph also provides that the certificates
describing continuity of custody (such as that set forth in
Form C appended to the Treaty) will be admissible without
additional authentication at trial in the Requesting State,
thus relieving the Requesting State of the burden, expense, and
inconvenience of having to send its law enforcement officers to
the Requested State to provided authentication and chain of
custody testimony each time the Requesting State uses evidence
produced under this article. As in Articles 8(5) and 9(3), the
injunction that the certificates be admissible without
additional authentication leaves the trier of fact free to bar
use of the evidence itself, in spite of the certificate, if
there is some reason to do so other than authenticity or chain
of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \28\
---------------------------------------------------------------------------
\28\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 6; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 20;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 17; U.S.- U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 6; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jan. 6, 1994
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Article 15--Return of Items
This article provides that any documents, records, or items
furnished under the Treaty must be returned to the Requested
State as soon as possible. This would normally be invoked only
if the Central Authority of the Requested State specifically
requests it at the time that the items are delivered to the
Requesting State. It is anticipated that unless original
records or articles of significant intrinsic value are
involved, the Requested State will not usually request return
of the items, but this is a matter best left to development in
practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Brazil in combating narcotics
trafficking. One significant strategy in this effort is action
by authorities in both States to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Brazil, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \29\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the U.S.
since these offenses are predicate offenses under U.S. money
laundering laws. \30\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
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\29\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\30\ Title 18, United States Code, Section 1956(c)(7)(B).
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If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B), allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act, Title 21, United States Code, Section 853)
within whose jurisdiction such offense or activity would be
punishable by death or imprisonment for a term exceeding one
year if such act or activity had occurred within the
jurisdiction of the United States.'' This is consistent with
the laws in other countries, such as Switzerland and Canada;
there is a growing trend among nations toward enacting
legislation of this kind in the battle against narcotics
trafficking. \31\ The United States delegation expects that
Article 16 of the Treaty will enable this legislation to be
even more effective.
---------------------------------------------------------------------------
\31\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \32\
---------------------------------------------------------------------------
\32\ In Brazil, unlike the U.S., the law does not currently allow
for civil forfeiture. However, Brazilian law does permit forfeiture in
criminal cases, and ordinarily a defendant must be convicted in order
for Brazil to confiscate the defendant's property.
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\33\
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\33\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
Article 17--Compatibility with Other Treaties
This article states that assistance and procedures provided
by this treaty shall not prevent either Party from granting
assistance to the other under other applicable international
agreements. Article 17 also provides that the Treaty shall not
prevent recourse to any assistance available under the internal
laws of either country, or pursuant to any applicable bilateral
agreement or practice. Thus, the Treaty would leave the
provisions of United States and Brazilian law on letters
rogatory completely undisturbed, and would not alter any pre-
existing executive agreements concerning investigative
assistance. \34\
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\34\ See E.g., U.S.-Brazil Agreement on Cooperation in the Field of
Control of Illicit Traffic of Drugs, with Annex, July 19, 1983, TIAS
10756; U.S.-Brazil Mutual Cooperation Agreement for Reducing Demand,
Preventing Illicit Use and Combating Illicit Production and Traffic of
Drugs, September 3, 1986, TIAS 11382.
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Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \35\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this paragraph.
---------------------------------------------------------------------------
\35\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 6, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 17, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 28, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 6, art. 18.
---------------------------------------------------------------------------
Article 19--Application
Article 19 provides that the Treaty shall apply to any
request presented pursuant to it after it enters into force,
even if the relevant acts or omissions occurred before the date
on which the Treaty entered into force. Provisions of this kind
are common in law enforcement agreements, and similar
provisions are found in most of the United States' extradition
treaties.
Article 20--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification.
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 states that the Parties may amend this Treaty
by mutual agreement, and any such amendment shall enter into
force upon a written exchange of notifications between the
Parties, through the diplomatic channel, that all domestic
requirements for its entry into force have been completed.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and the Czech Republic on Mutual Legal Assistance in Criminal Matters
Signed February 4, 1998
On February 4, 1998, the Attorney General of the United
States and the Ambassador of the Czech Republic signed a Treaty
on Mutual Legal Assistance in Criminal Matters (``the
Treaty''). In recent years, the United States has signed
similar treaties with other 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 with the Czech Republic is a major advance in
the formal law enforcement relationship between the two
countries, and is expected to be a valuable weapon for the
United States in its efforts to combat transnational terrorism,
international drug trafficking, and Russian organized crime.
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 Czech
delegation advised that under Czech jurisprudence, the terms of
the Treaty would take precedence over silence in Czech domestic
law, and, in case of a conflict between the Treaty and future
Czech domestic law, the Treaty would control.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 provides for assistance ``for criminal
proceedings, including investigations to verify the commission
of offenses, to gather evidence of offenses, and to prosecute
offenses, the punishment of which, at the time of the request
for assistance, would fall within the jurisdiction of the
judicial authorities of the Requesting State.'' By this phrase
the negotiators specifically agreed to provide treaty
assistance at any stage of a criminal matter. \1\ The Czech
negotiators explained that under the Czech law, there exists an
investigative stage both before and after indictment. This
phrase will allow the Czech authorities to secure assistance at
both of these investigative stages, as well as later during the
prosecution stage. For the United States, this includes not
only police-to-police cooperation before a crime is committed,
a grand jury investigation, a criminal trial, or 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. \2\
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\1\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist the Czech Republic
under the Treaty in connection with investigations prior to charges
being filed in Czech Republic. Prior to the 1996 amendments of Title
28, United States Code, Section 1782, some U.S. courts interpreted that
section to require that assistance be provided in criminal matters only
if formal charges have already been filed abroad, or are ``imminent,''
or ``very likely.'' McCarthy, ``A Proposed Uniform Standard for U.S.
Courts in Granting Requests for International Judicial Assistance,'' 15
Fordham Int'l Law J. 772 (1991). The 1996 amendment to the statute
eliminates this problem, however, by amending subsec. (a) to state
``including criminal investigation conducted before formal
accusation.'' In any event, this Treaty was intentionally written to
cover criminal investigations that have just begun as well as those
that are nearly completed; it draws no distinction between cases in
which charges are already pending, ``imminent,'' ``very likely,'' or
``very likely very soon.'' Thus, U.S. courts should execute requests
under the Treaty without examining such factors.
\2\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
---------------------------------------------------------------------------
Paragraph 2 lists the types of assistance specifically
considered by the negotiators. Most of the items are described
in greater detail in subsequent articles. The list is not
exhaustive, as indicated by the phrase ``assistance shall
include'' in the paragraph's chapeau and reinforced by the
phrase in item (i), which states that assistance shall include
``providing any other assistance consistent with the laws of
the Requested State.'' Paragraph 3 specifies that the principle
of dual criminality is generally inapplicable. Dual criminality
obligates the Requested State to provide assistance only when
the criminal conduct committed in the Requesting State would
also constitute a crime if committed in the Requested State. In
other words, the obligation to provide assistance upon request
arises irrespective of whether the offense for which assistance
is requested is a crime in the Requested State. However, the
paragraph lists an exception to the rule: where execution of
the request would require a court order, the Requested State
may, in fact, decline to provide assistance in the absence of
dual criminality. Even so, the paragraph obligates the
Requested State to ``make every effort to approve a request for
assistance requiring such a court order'' and to grant such a
request if, using the standard of ``reasonable suspicion,'' the
conduct described would also constitute a crime under the laws
of the Requested State. The delegations anticipate that only on
extremely rare occasions will the dual criminality requirement
prevent the granting of requested assistance.
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \3\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from the Czech Republic
by letters rogatory, an avenue of international assistance that
the Treaty leaves undisturbed. Similarly, the paragraph
provides that the Treaty is not intended to create any right in
a private person to suppress or exclude evidence provided
pursuant to the Treaty, or to impede the execution of a
request.
---------------------------------------------------------------------------
\3\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
Paragraph 1 requires that each Contracting State shall
``seek and obtain assistance'' under the Treaty through their
respective Central Authorities.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
The Attorney General has delegated the authority to handle
the duties of Central Authority under mutual assistance
treaties to the Assistant Attorney General in charge of the
Criminal Division. \4\ The Central Authority for the Czech
Republic will be the Office of the Prosecutor General and the
Ministry of Justice. \5\ This dual Central Authority
arrangement reflects the importance and independence of the
Office of the Prosecutor General in the Czech Republic criminal
justice system. Both the Czech Constitution and the Czech
Criminal Code designate distinct and separate responsibilities
and duties to the Office of the Prosecutor General and the
Ministry of Justice. The Prosecutor's Office is responsible for
handling requests to and from foreign authorities for
assistance in criminal matters at the investigation stage,
while the Ministry of Justice is responsible for handling
requests to and from foreign authorities for assistance in
criminal matters at the prosecution stage. The Czech delegation
informed the United States delegation that, in practice, the
U.S. Central Authority could send all requests to the Office of
the Prosecutor General since most foreign requests fall within
the investigative stage. If the request falls under the
jurisdiction of the Czech Ministry of Justice, however, the
Office of the Prosecutor General will promptly forward the
request to the Ministry of Justice for execution.
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\4\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
\5\ Similarly, Article 2(2) of the U.S.-Hungary Mutual Legal
Assistance Treaty, signed Dec. 1, 1994, entered into force March 18,
1997 (------ UST ------), provides that the Hungarian Minister of
Justice and Office of the Chief Public Prosecutor will serve as a dual
Central Authority.
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Paragraph 2 provides that the U.S. Central Authority will
``make'' requests on behalf of federal, state, and local
``prosecutors, investigators with criminal law enforcement
jurisdiction, and agencies and entities with specific statutory
or regulatory authority to refer matters for criminal
prosecution'' in the United States. The Czech Central Authority
will make requests on behalf of Czech prosecutors and courts.
Paragraph 3 specifies that the Central Authority for the
Requesting State shall use its ``best efforts'' not to make a
request if, in its view: (a) the request is based on offenses
that do not have serious consequences; or (b) the extent of the
assistance to be requested is unreasonable in view of the
sentence expected upon conviction. This provision is intended
to give the Central Authorities a firm basis on which to refuse
to submit a request on behalf of a competent authority because
of the insignificance or inappropriateness of the request.
Paragraph 4 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or Interpol channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Denial of Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law applicable
generally. Similar provisions appear in many other U.S. mutual
legal assistance treaties.
During negotiations, the Czech delegation informed that
they do not have a separate military code; rather, military law
is covered in a section of the single Czech criminal code
dealing with ``ordinary criminal law.'' The delegations
understand this provision to provide that a Requested State
will have discretion to deny a request under this provision
only when there exists a certain criminal conduct that would be
an offense under military law, but would not be an offense
under ordinary law. For example, showing disrespect to a senior
military officer would be a purely military offense and, thus,
a basis on which the Requested State would have discretion to
deny assistance. On the other hand, if a military officer
murders another military officer, this would be a military
offense as well as an offense under ordinary law and, thus, the
Requested State would not have discretion to deny assistance
under this provision. As a practical matter, the negotiating
delegations noted that they anticipate that this provision will
rarely, if ever, be used as a basis for denial of a request.
Paragraph (1)(b) permits denial of a request if it involves
a political offense. It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
Paragraph 1(c) permits the Central Authority of the
Requested State to deny a request if execution would prejudice
the sovereignty, security, order public, or similar essential
interests of that State. The negotiators anticipate that this
provision will be invoked in the rarest and most extreme
circumstances. The Czech delegation could not think of a
request within recent memory denied on the basis of sovereignty
or security. The term ``order public'' appears in other mutual
legal assistance treaties but is not commonly used by the
United States; however, the Czech delegation was more
comfortable with the term, commonly used in European
conventions, and intended that it cover matters that affect the
social fabric of the nation, such as, for example, requiring
(or denying a request to require) a witness of a certain
religion to take an oath that is contrary to the practice of
that religion. The phrase ``similar essential interests'' is
intended to convey a concept of substantial national
importance. In the United States, because the decision to deny
assistance lies with the Central Authority, the Attorney
General will work closely with the Department of State and
other relevant agencies in determining whether to execute a
request that involves ``sovereignty, security, order public, or
similar essential interests.''
Paragraph (1)(d) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \6\ and obliges the
Requested State to consider imposing appropriate conditions on
its assistance in lieu of denying a request outright pursuant
to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\6\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973,
art. 26, 27 UST 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
Paragraph 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form, Content, and Language of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations.'' A request in
another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise. Paragraph 1 also requires that the Treaty request,
including any attachments, be in the language of the Requested
State, unless otherwise agreed. The last sentence of Paragraph
1 states that the Requested States has no obligation to
translate a response to a request, including any attachments.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. If the Central Authority is not competent to
execute the request, it must promptly transmit the request to a
competent authority for execution.
For the Czech Republic, the Central Authority will
determine whether (1) the request complies with the terms of
the Treaty, and (2) its execution would prejudice the
sovereignty, security, or other essential interests of the
Czech Republic. If the request merits execution, the Central
Authority will transmit the request to an appropriate
department within the Office of the Prosecutor General or the
Ministry of Justice for that purpose. The procedure is similar
for the United States, except the United States Central
Authority normally will transmit the request to federal
investigators, prosecutors, or agencies for execution. The
United States Central Authority also may transmit a request to
state authorities in circumstances it deems appropriate.
Paragraph 1 further requires the competent authorities of
the Requested State, including courts, shall do ``everything in
their power'' to execute the requests. This sentence also
specifically authorizes and requires a Court of the Requested
State to take such action as is necessary and within its power
to execute the request. In the Czech Republic, courts, as well
as public prosecutors, are empowered under Czech law to issue
orders, including subpoenas and search warrants, that are
necessary to execute the request. In the Czech Republic,
execution of requests will be almost exclusively within the
province of the Office of the Prosecutor General, Ministry of
Justice, and the courts, whereas in the United States,
execution can be entrusted to any competent authority in any
branch of government, federal or state. This provision is not
intended or understood to authorize the use of the grand jury
in the United States for the collection of evidence pursuant to
a request from the Czech Republic. Rather, it is anticipated
that when a request from the Czech Republic requires compulsory
process for execution, the United States Department of Justice
would ask a federal court to issue the necessary process under
Title 28, United States Code, Section 1782, and the provisions
of the Treaty. \7\
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\7\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
Paragraph 2 reconfirms that, when necessary, the Central
Authority of the Requested State shall arrange for requests
from the Requesting State to be presented to the appropriate
authority in the Requested State for execution. In practice,
the Central Authority for the United States will transmit the
request with instructions for 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 will select an appropriate
representative, generally a federal prosecutor, to present the
matter to a court. Thereafter, the prosecutor will represent
the United States, acting to fulfill its obligations to the
Czech Republic under the Treaty by executing the request. Upon
receiving the court's appointment as a commissioner, the
prosecutor/commissioner will act as the court's agent in
fulfilling the court's responsibility to do ``everything in
[its] power'' to execute the request. In short, the prosecutor
may only seek permission from a court to exercise the court's
authority in using compulsory measures if he receives
permission from the court to do so.
The situation with respect to the Czech Republic is
different. The U.S. Central Authority will transmit all
requests to either the Czech Republic Office of the Prosecutor
General or the Ministry of Justice. If the case is in the
investigative stage, the Office of the Prosecutor General will
assign the request to an appropriate department within that
office. Public prosecutors in the Czech Republic have authority
to order compulsory process, including, but not limited to,
requiring a witness to appear to provide testimony, issuing
subpoenas to compel the production of documents or other
evidence, and ordering a search and seizure. The exercise of
this authority by Czech prosecutors does not require the
consent of a court. In other words, unlike in the United
States, a Czech prosecutor may execute a foreign request
seeking compulsory process without the assistance of the Czech
courts.
If the request to the Czech Republic relates to an indicted
case, the Office of the Prosecutor General of the Czech
Republic will transmit the request to the Ministry of Justice
for forwarding to an appropriate court with general advice
regarding the Czech Republic's treaty obligation and the
general evidentiary and procedural requirements of the United
States.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \8\, and provides, that
``[a] request shall be executed in accordance with the laws of
the Requested State except to the extent that this Treaty
provides otherwise.'' Thus, the method of executing a request
for assistance under the Treaty must be in accordance with the
Requested State's internal laws absent specific contrary
procedures in the Treaty itself. Neither State is expected to
take any action pursuant to a treaty request which would be
prohibited under its internal laws. For the United States, the
Treaty is intended to be self-executing; no new or additional
legislation will be needed to carry out the obligations
undertaken.
---------------------------------------------------------------------------
\8\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Czech
Republic authorities in collecting evidence in order to assure
the admissibility of that evidence at trial. For instance,
United States law permits documentary evidence taken abroad to
be admitted in evidence if the evidence is duly certified and
the defendant has been given fair opportunity to test its
authenticity. \9\ The law of the Czech Republic currenontains
no similar provision. Thus, documents assembled in the Czech
Republic in strict conformity with Czech procedures on evidence
might not be admissible in United States courts. Similarly,
United States courts utilize procedural techniques such as
videotape depositions to enhance the reliability of evidence
taken abroad, and some of these techniques, while not
forbidden, are not used in the Czech Republic.
---------------------------------------------------------------------------
\9\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested State may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the nature and stage of the proceeding'' as required by
Article 4(2)(b). Therefore, Paragraph 5 of Article 5 enables
the Requesting State to call upon the Requested State to keep
the information in the request confidential. \10\ If the
Requested State canxecute the request without disclosing the
information in question (as might be the case if execution
requires a public judicial proceeding in the Requested State),
or if for some other reason this confidentiality cannot be
assured, the Treaty obliges the Requested State to so indicate,
thereby giving the Requesting State an opportunity to withdraw
the request rather than risk jeopardizing an investigation or
proceeding by public disclosure of the information.
---------------------------------------------------------------------------
\10\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual
Legal Assistance Treaty, Nov. 13, 1994, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
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) the fees of experts; (2) the costs of
interpretation, translation, and transcription; and (3) the
allowances and expenses related to travel of persons traveling
outside the local judicial district in the Requested State for
the convenience of the Requesting State or pursuant to Articles
11, 12, and 13.
Costs ``relating to'' execution means the costs normally
incurred in transmitting a request to the executing authority,
notifying witnesses and arranging for their appearances,
producing copies of the evidence, conducting a proceeding to
compel execution of the request, etc. The negotiators agreed
that costs ``relating to'' execution to be borne by the
Requested State do not include expenses associated with the
travel of investigators, prosecutors, counsel for the defense,
or judicial authorities to, for example, question a witness or
take a deposition in the Requested State pursuant to Article
9(3), or travel in connection with Articles 11, 12, and 13.
Paragraph 2 of this article provides that if it becomes
apparent during the execution of a request that complete
execution of a request would require extraordinary expenses,
then the Central Authorities shall consult to determine the
terms and conditions under which execution may continue.
Article 7--Limitations on Use
Article 7 states that the Central Authority of the
Requested State may require that the Requesting State not use
any information or evidence obtained under this Treaty other
than in the proceeding described in the request without the
prior consent of the Central Authority of the Requested State.
Article 7 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
this article. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Article 8--Alteration of Conditions
Paragraph 1 states that nothing in Article 8 shall preclude
the use or disclosure of information to the extent that there
is an obligation to do so under the Constitution of the
Requesting State. Any such proposed disclosure shall be
notified by the Requesting State to the Requested State in
advance. If the United States Government were to receive
evidence under the Treaty that seems to be exculpatory to the
defendant in another case, the United States might be obliged
to share the evidence with the defendant in the second case.
\11\
---------------------------------------------------------------------------
\11\ See Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
Paragraph 1 further requires that the Requested State use
its ``best efforts'' to permit modification of a request for
the purpose of disclosure. This ``best efforts'' language was
used because the purpose of the Treaty is the production of
evidence for use at trial, and that purpose would be frustrated
if the Requested State could routinely permit the Requesting
State to see valuable evidence, but impose confidentiality
restrictions which prevent the Requesting State from using it.
In fact, where the condition is imposed pursuant to Article 8,
the disclosure shall be allowed unless prohibited by the law of
the Requested State.
Paragraph 2 states that once information or evidence
obtained under the Treaty has been revealed to the public in
accordance with Paragraph 1, the Requesting State is free to
use the evidence for any purpose. Once evidence obtained under
the Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
The negotiators expect the good faith protection of
confidentiality up to the point that the evidence is used in
the prosecution of the offense for which it was provided; as a
result, some previously confidential evidence may become public
when introduced as evidence 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 9--Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom evidence is sought shall be compelled, if necessary,
to appear and either testify or provide a statement, or produce
items, including documents, records, or articles of evidence.
The compulsion contemplated by this article can be accomplished
by subpoena or any other means available under the law of the
Requested State.
In the United States, a prosecutor asks a U.S. court to
appoint him as a commissioner empowering him to execute
subpoenas on behalf of the foreign authority. The procedure in
the United States as described is used regardless of whether
the request concerns a matter at the investigative stage or a
case that has been indicted. In the Czech Republic, the
authority of the public prosecutor to issue subpoenas and to
use other compulsory measures exists independently of the
courts. Therefore, in the Czech Republic, where the request
concerns a matter at the investigative stage and is handled by
the Office of the Prosecutor General, the public prosecutor may
use his power to issue subpoenas to compel the production of
documents or other evidence on behalf of the foreign authority.
Where the request concerns an indicted case and is handled by a
court, the court uses its power to issue subpoenas to compel
the production of documents or other evidence on behalf of the
foreign authority.
The criminal laws in both States contain provisions that
sanction the production of false evidence. The second sentence
of Article 9(1) explicitly states that the criminal laws in the
Requested State shall apply in situations where a person, other
than an accused, in that State provides false evidence in
execution of a request. The negotiators expect that were any
falsehood made in execution of a request, the Requesting State
could ask the Requested State to prosecute for perjury and
provide the Requested State with the information or evidence
needed to prove the falsehood. The Czech delegation advised
that Section 175 of the Czech Penal Code provides that a person
who provides false statements to a court, prosecutor, police,
or investigating commission of the Czech Parliament may be
subject to criminal punishment.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article. The Czech negotiators assured the U.S. delegation that
a stenographer could be present at depositions in the Czech
Republic. The presence of a stenographer is generally critical
to preserve testimony of witnesses inasmuch as the 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. The United States practice is intended,
among other things, to allow the trier of fact to receive
testimony, to the extent possible, as if the witnesses were
present at the United States court proceeding.
Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \12\
---------------------------------------------------------------------------
\12\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), TIAS No. 10734, 1359 UNTS 209; U.S.-Bahamas
Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 9(2);
U.S.-Mexico Mutual Legal Assistance Treaty, supra note 10, art. 7(2);
U.S.-Philippines Mutual Legal Assistance Treaty, supra note 10, art.
8(4).
---------------------------------------------------------------------------
Article 9(5) is primarily for the benefit of the United
States. The United States evidentiary system requires that
evidence that is to be used as proof in a legal proceeding be
authenticated as a precondition to admissibility. This
paragraph provides that evidence produced in the Requested
State pursuant to Article 9 may be authenticated by an
``attestation.'' Although the provision is sufficiently broad
to include the authentication of ``[e]vidence produced . . .
pursuant to this Article,'' the negotiators focused on and were
primarily concerned with business records. In order to ensure
the United States that business records provided by the Czech
Republic pursuant to the Treaty could be authenticated in a
manner consistent with existing U.S. law, the negotiators
crafted Form A to track the language of Title 18, United States
Code, Section 3505, the foreign business records authentication
statute. If the Czech authorities properly complete, sign, and
attach Form A to executed documents, or submit Form B
certifying the absence or non-existence of business records, a
U.S. judge may admit the records into evidence without the
appearance at trial of a witness. The admissibility provided by
this paragraph provides for an exception to the hearsay rule;
however, admissibility extends only to authenticity and not to
relevance, materiality, etc., of the evidence; whether the
evidence is, in fact, admitted is a determination within the
province of the judicial authority presiding over the
proceeding for which the evidence is provided.
Article 10--Official Records
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country. For the Czech Republic, this includes the
executive, legislative, and judicial authorities at the central
and regional government levels.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State
will determine that extent and what those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty in tax
matters, and such assistance could include tax return
information when appropriate. The United States delegation was
satisfied after discussion that this Treaty is a ``convention
relating to the exchange of tax information'' for purposes of
Title 26, United States Code, Section 6103(k)(4), and the
United States would have the discretion to provide tax return
information to the Czech Republic under this article in
appropriate cases. \13\
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\13\ Under 26 U.S.C. Sec. 103(i) information in the files of the
Internal Revenue Service (generally protected from disclosure under 26
U.S.C. Sec. 103) may be disclosed to federal law enforcement personnel
in the United States for use in a non-tax criminal investigations or
proceedings, under certain conditions and pursuant to certain
procedures. The negotiators agreed that this Treaty (which provides
assistance both for tax offenses and in the form of information in the
custody of tax authorities of the Requested State) is a ``convention .
. . relating to the exchange of tax information'' under Title 26,
United States Code, Section 6103(k)(4), pursuant to which the United
States may exchange tax information with treaty partners. Thus, the
Internal Revenue Service may provide tax returns and return information
to the Czech Republic through this Treaty when, in a criminal
investigation or prosecution, the authority of the Czech Republic on
whose behalf the request is made can meet the same conditions required
of United States law enforcement authorities under Title 26, United
States Code, Sections 6103(h) and (i). As an illustration, a request
from the Czech Republic for tax returns to be used in a non-tax
criminal investigation, in accordance with 26 U.S.C. 6103(i)(1)(A),
would have to specify that the law of the Czech Republic enforcement
authority is:
Personally and directly engaged in--
(i) preparation for any judicial or administrative proceeding
pertaining to the enforcement of a specifically designated criminal
statute of the Czech Republic (not involving tax administration) to
which the Czech Republic is or may be a party. (ii) any investigation
which may result in such a proceeding, or (iii) any proceeding in the
Czech Republic pertaining to enforcement of such a criminal statute to
which the Czech Republic is or may be a party. (See 26 U.S.C.
6103(i)(1)(A).)
The request would have to be presented to a federal district court
judge or magistrate for an order directing the Internal Revenue Service
to disclose the tax returns as specified at 26 U.S.C. 6103(i)(1)(B).
Before issuing such an order, the judge or magistrate would have to
determine, also in accordance with 26 U.S.C. 6103(i)(1)(B), that:
(i) there is reasonable cause to believe, based upon information
believed to be reliable, 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 criminal investigation in the Czech
Republic or proceeding concerning such act, and the information sought
to be disclosed cannot reasonably be obtained, under the circumstances,
from another source.
In other words, the law enforcement authorities of the Czech
Republic seeking tax returns would be treated as if they were United
States law enforcement authorities--undergo the same access procedure
where they would be held to the same standards.
---------------------------------------------------------------------------
Paragraph 3 provides for the authentication of records
produced pursuant to this Article by a government department or
agency responsible for their maintenance. Such authentication
is to be effected through the use of Form C appended to the
Treaty. If the Czech authorities properly complete, sign, and
attach Form C to executed documents, or submit Form D
certifying the absence or non-existence of such records, a U.S.
judge may admit the records into evidence as self-
authenticating under Rule 902(3) of the Federal Rules of
Evidence. The admissibility provided by this paragraph provides
for an exception to the hearsay rule; however, admissibility
extends only to authenticity and not to relevance, materiality,
etc., of the evidence. Whether the evidence is, in fact,
admitted is a determination within the province of the judicial
authority presiding over the proceeding for which the evidence
is provided.
Article 11--Appearance Outside the Requested State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State or a third State to appear
before an appropriate authority there. It shall notify the
Requesting State of the invitee's response. An appearance in
the Requesting State or a third State under this article is not
mandatory, and the invitation may be refused by the prospective
witness.
When the United States seeks to have the Czech Republic
invite a person to appear in the United States or a third
State, the United States Central Authority will send a letter
of invitation through the Czech Republic Central Authority. The
person invited is free to decline and shall not be subject to
any penalty for doing so or for failing to appear after
agreeing to do so. This does not preclude the United States
from seeking under Article 14 service of a document such as a
subpoena issued under Title 28, United States Code, Sections
1783-1784 and directed to a United States citizen or resident
located in the Czech Republic, which subpoena may entail
sanctions for failure to appear in the United States as
directed by the subpoena.
Paragraph 2 provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided. Paragraph 2 also
provides that the person who agrees to travel to the Requesting
State may request and receive an advance for expenses. The
advance may be provided through the embassy or a consulate of
the Requesting State.
Paragraph 3 provides assurances that an invited person who
appears in the Requesting State pursuant to a request for
assistance shall not be ``prosecuted, detained, or subjected to
any restriction of personal liberty'' for acts committed prior
to the invitee's leaving the Requested State. This provision
does not protect against civil suits, prosecution, punishment,
or restriction of personal liberty with respect to acts
committed after departure from the Requested State. Any person
appearing in the United States pursuant to a request under
Article 11 or Article 12 will have such assurances unless the
United States Central Authority specifies otherwise in the
request inviting the person to appear.
Paragraph 4 terminates the safe conduct provided in
paragraph 1 if, after the person with safe conduct is notified
that his or her presence is no longer required, that person,
although free to leave, remains in the Requesting State for
seven days, or, having left, voluntarily returns.
Article 12--Temporary Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \14\
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\14\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \15\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters.
---------------------------------------------------------------------------
\15\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 6,
art. 26.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State if
the person consents and if the Central Authorities of both
States agree. This would also cover situations in which a
person in custody in the United States on a criminal matter has
sought permission to travel to another country to be present at
a deposition being taken there in connection with the case.
\16\
---------------------------------------------------------------------------
\16\ See Title 18, United States Code, Section 3508. See also
United States v. King, 552 F.2d 833 (9th Cir. 1976), cert. denied, 430
U.S. 966 (1977), where the defendants insisted on traveling to Japan to
be present at the deposition of certain witnesses in prison there.
---------------------------------------------------------------------------
Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Paragraph 3(e) provides that, where the receiving State is a
third state, the Requesting State shall make all arrangements
necessary to meet the requirements of this paragraph.
Paragraph 4 states that safe conduct for the transferred
person may be provided for by the Central Authority of the
receiving State under the same terms set forth in Article 11,
subject to the conditions set forth in paragraph 3 of this
article.
Article 13--Transit of Persons in Custody
Most modern extradition treaties provide for cooperation in
the transit of persons being extradited, \17\ although the
extradition treaty currently in force between the United States
and the Czech Republic is silent on this topic. Article 13 is
not focused on the transit of extradited persons. Rather, this
article provides a basis for mutual cooperation with respect to
prisoners who are involved in a criminal investigation or
prosecution other than as extradited fugitives (e.g., as
witnesses appearing to testify or as defendants appearing to be
present at a proceeding).
---------------------------------------------------------------------------
\17\ See, e.g., U.S.-Hungary Extradition Treaty, signed Dec. 1,
1994, entered into force March 18, 1997, art. 19; U.S.-Japan
Extradition Treaty, signed March 3, 1978, entered into force March 26,
1980, art. 15 (31 UST 892, TIAS 9625); U.S.-Mexico Extradition Treaty,
signed May 4, 1978, entered into force Jan. 25, 1980, art. 20 (31 UST
5059, TIAS 9656).
---------------------------------------------------------------------------
Paragraph 1 gives each Party the power to authorize transit
through its territory of a person being transferred to the
other Contracting State by a third state. Paragraph 2 obligates
each Party to keep in custody a person in transit during the
transit period. Requests for transit are to contain a
description of the person being transported and a brief
statement of the facts of the case for which the person is
sought. Paragraph 3 allows each Party to refuse transit of its
nationals.
Under this article, no advance authorization is needed if
the person in custody is in transit to one of the Contracting
States and is traveling by aircraft and no landing is scheduled
in the territory of the other. Should an unscheduled landing
occur, a request for transit may be required at that time, and
the Requested State may grant the request if, in its
discretion, it is deemed appropriate to do so. Where transit is
granted, the person in transit shall be kept in custody until
such time as the person may continue in transit out of the
Requested State.
Article 14--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
extent of such efforts will vary, of course, depending on the
quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items in third countries. In
all instances, the Requesting State is expected to supply all
available information about the last known location of the
persons or items sought.
Article 15--Service of Documents
Paragraph 1 creates an obligation on the Requested State to
use its best efforts to effect the service of documents such as
summons, complaints, subpoenas, or other legal papers relating
in whole or in part to a Treaty request. Identical provisions
appear in several U.S. mutual legal assistance treaties.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by the Czech Republic to follow
a specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested. Service in the Czech Republic typically will be made
by mail, unless the United States specifies that some other
form is necessary; Czech authorities typically will be able to
accommodate such requests.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 16--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \18\ This article
creates a formal framework for handling such requests.
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\18\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984).
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The negotiators agreed that requests for the production of
physical evidence usually will be executed pursuant to Article
9. In situations in which a subpoena duces tecum or demand for
production is inadequate, however, this article permits a
search and seizure.
Article 16 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from the Czech Republic will have to be
supported by a showing of probable cause for the search. A
United States request to the Czech Republic would have to
satisfy the corresponding evidentiary standard applicable there
at the time of the request.
When the Central Authority of the United States submits a
request for search and seizure to one of the Central
Authorities of the Czech Republic, the United States Central
Authority may specify whether it wishes a Czech court or public
prosecutor to issue the search and seizure order. Czech
authorities can accommodate this request. If the United States
request does not specify which Czech authority should execute
the request, however, typically a Czech public prosecutor will
issue the order and then engage the Czech police to conduct the
search and seizure. Under Czech law, there is no need for Czech
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 proving that chain by certificates admissible in a judicial
proceeding in the Requesting State. The Requested State is
required to maintain a reliable record, from the time of a
seizure, of the ``identity of the item, the integrity of its
condition, and the continuity 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 tracing the route of the item seized (and any change in
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 reason 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 not in serious question.
For the Czech Republic, the chain of custody is not a
significant factor in the admissibility of evidence.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \19\
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\19\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, Dec.
4, 1990, art. 15(3); U.S.-Bahamas Mutual Legal Assistance Treaty, supra
note 12, art. 15(3); U.S.-Canada Mutual Legal Assistance Treaty, supra
note 10, art. 15(4); U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, Jul. 3, 1986, art. 15(3); U.S.-Hungary
Mutual Legal Assistance Treaty, Dec. 1, 1994, supra note 5, art. 15(3);
U.S.-Korea Mutual Legal Assistance Treaty, Nov. 23, 1993, art. 15(3);
U.S.-Panama Mutual Legal Assistance Treaty, Apr. 11, 1991, art. 15(3);
U.S.-Philippines Mutual Legal Assistance Treaty, supra note 10, art.
15(3); U.S.-Spain Mutual Legal Assistance Treaty, Nov. 20, 1990, art.
15(3); U.S.-U.K. Mutual Legal Assistance Treaty, Jul. 3, 1986, art.
15(4).
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Article 17--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 item, including
a document, record, or article of evidence, provided by the
Requested State pursuant to the Treaty. The second sentence of
this article provides that when a request for the return of an
item is not made until after the transfer has already occurred,
the Requesting State shall comply with the request to the
extent feasible.
Article 18--Forfeiture
A major goal of the Treaty is to enhance the efforts of
both the United States and the Czech Republic in combating
narcotics trafficking. One significant strategy in this effort
is action by United States authorities to seize and confiscate
money, property, and other proceeds of drug trafficking.
Paragraph 1 provides that, upon request, the Requested
State shall use its best efforts to determine whether proceeds
or instrumentalities of a crime, which might be forfeitable or
seized, are located in the Requested State. The second sentence
requires that the request state the grounds for believing that
such proceeds or instrumentalities, in fact, are located in the
Requested State. Finally, the last sentence of this paragraph
requires that the Requested State inform the Requesting State
of the results of its inquiry. Upon notification, the Central
Authority of the Contracting Party in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. If the Contracting Party in which
the proceeds or instrumentalities are located takes any action
with regard to forfeiture and/or immobilization of the
property, its Central Authority shall report to the other
Central Authority on the action taken. The phrase ``proceeds
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.
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \20\
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\20\ In the Czech Republic, unlike the U.S., the law does not
currently allow for civil forfeiture. However, Czech law does permit
forfeiture in criminal cases, and ordinarily a defendant must be
convicted in order for the Czech Republic to confiscate the defendant's
property.
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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.
Paragraph 3 gives discretion to the Requested State, to the
extent permitted by its laws, to give effect to any final legal
determination given in the Requesting State for the forfeiture
of such proceeds or instrumentalities, or to initiate its own
legal action for the forfeiture of such assets.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\21\ Paragraph 4 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
---------------------------------------------------------------------------
\21\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
The Czech Republic does not prohibit sharing and, thus, the
Czech delegation stated that it thought that Czech authorities
could share a percentage of forfeited proceeds with the United
States on a case-by-case basis.
Article 19--Restitution
This provision obligates the Contracting States to assist
each other to the extent permitted by their laws to facilitate
restitution. One type of assistance envisioned includes the
transfer of items obtained through criminal activity.
Article 20--Criminal Fines
This Article obligates the Contracting States to assist, to
the extent permitted by their laws, in proceedings regarding
criminal fines. The second sentence of this provision
specifically states that such assistance is not intended to
include the collection of criminal fines.
Article 21--Compatibility with Other Treaties
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Czech Republic law on letters rogatory completely
undisturbed, and would not alter any pre-existing agreements
concerning investigative assistance.
Article 22--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \22\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
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\22\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 10, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 10, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 19, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 19, art. 18.
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Article 23--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification
Paragraph 2 provides that the Treaty shall enter into force
two months after the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented after its entry into force, even if the
relevant acts or omissions occurred before the date on which
the Treaty entered into force. Provisions of this kind are
common in law enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and Dominica on Mutual Legal Assistance in Criminal Matters
On October 10, 1996, the United States signed a treaty with
Dominica 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 expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking in
the eastern Caribbean, where Dominica is a regional leader.
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. Dominica has its
own mutual legal assistance laws in place for implementing the
Treaty, and does not anticipate enacting new legislation. \1\
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\1\ ``An Act to make provision with respect to the scheme relating
to Mutual Assistance in Criminal Matters within the Commonwealth and to
facilitate its operation in Dominica, and to make provision concerning
mutual assistance in criminal matters between Dominica and countries
other than Commonwealth countries'' (15 May 1990), hereinafter
``Dominica Mutual Assistance Act, 1990.'' Since there are some
differences between the Treaty and Dominican law, it is anticipated
that Dominica will issue regulations under Section 29, which will
``direct that [the] Act shall apply in relation to [the United States]
as if it were a Commonwealth country, subject to such limitations,
conditions, exceptions or qualifications (if any) as may be
prescribed...'' in order for the terms of the Treaty to be applied.
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The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre- charge proceedings in Dominica,
and other legal measures taken prior to the filing of formal
charges in either State. \2\ The term ``proceedings'' was
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
\3\ It was also agreed that since the phrase ``proceedings
related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \4\ yet such proceedings are covered by the
Treaty.
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\2\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Dominica under the
Treaty in connection with investigations prior to charges being filed
in Dominica. Prior to the 1996 amendments to Title 28, United States
Code, Section 1782, some U.S. courts had interpreted that provision to
require that assistance be provided in criminal matters only if formal
charges have already been filed abroad, or are ``imminent,'' or ``very
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in
Granting Requests for International Judicial Assistance,'' 15 Fordham
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem,
however, by amending subsec. (a) to state ``including criminal
investigation conducted before formal accusation.'' In any event, this
Treaty was intentionally written to cover criminal investigations that
have just begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\3\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting Party. Since this paragraph
of the treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\ See 21 U.S.C. 881; 18 U.S.C. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact which is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this Article 1, however, makes it clear that there is no
general requirement of dual criminality under this Treaty for
cooperation. Thus, assistance may be provided even when the
criminal matter under investigation in the Requesting State
would not be a crime in the Requested State ``[e]xcept as
otherwise provided by this Treaty,'' a phrase which refers to
Article 3(1)(e), under which the Requested State may, in its
discretion, require dual criminality for a request under
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters). Article 1(3) is important
because United States and Dominica criminal law differ
somewhat, and a general dual criminality rule would make
assistance unavailable in significant areas. This type of
limited dual criminality provision is found in other U.S.
mutual legal assistance treaties. \5\ During the negotiations,
the United States delegation received assurances that
assistance would be available under the Treaty to the United
States in investigations of such offenses as conspiracy; drug
trafficking, including continuing criminal enterprise (Title
21, United States Code, Section 848), offenses under the
racketeering statutes (Title 18, United States Code, Sections
1961-1968), money laundering, tax crimes, including tax evasion
and tax fraud, crimes against environmental protection laws,
and antitrust violations.
---------------------------------------------------------------------------
\5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \6\ that states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Dominica by letters
rogatory, an avenue of international assistance that the Treaty
leaves undisturbed. Similarly, the paragraph provides that the
Treaty is not intended to create any right in a private person
to suppress or exclude evidence provided pursuant to the
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
\6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Dominica on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. The Dominican Central Authority would make all requests
emanating from officials in Dominica.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \7\
Paragraph 2 also states that the Attorney General of Dominica
or a person designated by the Attorney General will serve as
the Central Authority for Dominica.
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\7\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or other essential public
interests of that State. All United States mutual legal
assistance treaties contain provisions allowing the Requested
State to decline to execute a request if execution would
prejudice its essential interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
The delegations also agreed that the phrase ``essential
public interests'' was intended to narrowly limit the class of
cases in which assistance may be denied. It would not be enough
that the Requesting State's case is one that would be
inconsistent with public policy had it been brought in the
Requested State. Rather, the Requested State must be convinced
that execution of the request would seriously conflict with
significant public policy. An example might be a request
involving prosecution by the Requesting State of conduct which
occurred in the Requested State and is constitutionally
protected in that State.
However, it was agreed that ``essential public interests''
could include interests unrelated to national military or
political security, and be invoked if the execution of a
request would violate essential United States interests related
to the fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke Paragraph (1)(b) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \8\
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\8\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, October 24,
1989. See also Mutual Legal Assistance Treaty Concerning the Cayman
Islands: Report by the Committee on Foreign Relations, 100th Cong., 2nd
Sess. 67 (1988) (Testimony of Deputy Assistant Attorney General Mark M.
Richard).
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In general, the mere fact that the execution of a request
would involve the disclosure of records protected by bank or
business secrecy in the Requested State would not justify
invocation of the ``essential public interests'' provision.
Indeed, a major objective of the Treaty is to provide a formal,
agreed channel for making such information available for law
enforcement purposes. In the course of the negotiations, the
Dominica delegation expressed its view that in very exceptional
and narrow circumstances the disclosure of business or banking
secrets could be of such significant importance to its
Government (e.g., if disclosure would effectively destroy an
entire domestic industry rather than just a specific business
entity) that it could prejudice that State's ``essential public
interests'' and entitle it to deny assistance. \9\ The U.S.
delegation did not disagree that there might be such
extraordinary circumstances, but emphasized its view that
denials of assistance on this basis by either party should be
extremely rare.
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\9\ The Dominica view of this provision is thus similar to the
Swiss view of Article 3(2) of the U.S.-Switzerland Treaty. See
Technical Analysis to the Treaty between the U.S. and Switzerland on
Mutual Assistance in Criminal Matters, signed May 25, 1973. U.S. Senate
Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
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Paragraph (1)(c) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph (1)(d) permits denial of a request if it involves
a political offense. \10\ It is anated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
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\10\ See Section 19(2)(a) and 19(2)(b), Dominica Mutual Assistance
Act 1990.
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Paragraph (1)(e) permits denial of a request if there is no
``dual criminality'' with respect to requests made pursuant to
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters).
Paragraph (1)(f) permits denial of the request if execution
would be contrary to the Constitution of the Requested State.
This provision was deemed necessary under Dominican law, \11\
and is similar to clauses in other United States mutual legal
assistance treaties. \12\
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\11\ Section 19(2)(e), St. Dominica Mutual Assistance Act 1990.
\12\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989,
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13,
1989, art. III(1)(d).
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Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \13\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\13\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Dominica. Rather, it is
anticipated that when a request from Dominica requires
compulsory process for execution, the United States Department
of Justice would ask a federal court to issue the necessary
process under Title 28, United States Code, Section 1782, and
the provisions of the Treaty. \14\
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\14\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) reads ``[t]he competent
judicial or other authorities of the Requested State shall have
power to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in the execution of mutual
assistance requests. The phrase refers to ``judicial or other
authorities'' to include all those officials authorized to
issue compulsory process that might be needed in executing a
request. For example, in Dominica, justices of the peace and
senior police officers are empowered to issue certain kinds of
compulsory process under certain circumstances.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Paragraph 2 is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \15\, and provides,
``[r]equests shall be executed according to the internal laws
and procedures of the Requested State, except to the extent
that this Treaty provides otherwise.'' Thus, the method of
executing a request for assistance under the Treaty must be in
accordance with the Requested State's internal laws absent
specific contrary procedures in the Treaty itself. Thus,
neither State is expected to take any action pursuant to a
Treaty request which would be prohibited under its internal
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to
carry out the obligations undertaken.
---------------------------------------------------------------------------
\15\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 12.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Dominica
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documentary evidence taken abroad to be
admitted in evidence if the evidence is duly certified and the
defendant has been given fair opportunity to test its
authenticity. \16\ Dominica law currently contains no similar
provision. Thus, documents assembled in Dominica in strict
conformity with Dominican procedures on evidence might not be
admissible in United States courts. Similarly, United States
courts utilize procedural techniques such as videotape
depositions to enhance the reliability of evidence taken
abroad, and some of these techniques, while not forbidden, are
not used in Dominica.
---------------------------------------------------------------------------
\16\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures that must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded - - if the Requested State were to insist
unnecessarily on handling the evidence in a manner usually
reserved for evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 3 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested State may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
Party to call upon the Requested State to keep the information
in the request confidential. \17\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\17\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \18\
Article 6 states that the Requesting State will pay fees of
expert witnesses, translation, interpretation and transcription
costs, and allowances and expenses related to travel of persons
pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\18\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 17, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 5, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it.
The Dominica delegation expressed concern that information
it might supply in response to a request by the United States
under the Treaty not be disclosed under the Freedom of
Information Act. Both delegations agreed that since this
article permits the Requested State to prohibit the Requesting
State's disclosure of information for any purpose other than
that stated in the request, a Freedom of Information Act
request that seeks information that the United States obtained
under the Treaty would have to be denied if the United States
received the information on the condition that it be kept
confidential.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that there is an obligation to do
so under the Constitution of the Requesting State in a criminal
prosecution. Any such proposed disclosure and the provision of
the Constitution under which such disclosure is required shall
be notified by the Requesting State to the Requested State in
advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
Paragraph 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Dominica authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article. Paragraph 4, when read together with Article 5(3),
ensures that no person will be compelled to furnish information
if he has a right not to do so under the law of the Requested
State. Thus, a witness questioned in the United States pursuant
to a request from Dominica is guaranteed the right to invoke
any of the testimonial privileges (i.e., attorney client,
interspousal) available in the United States as well as the
constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \19\ A witness testifying in
Dominica may raise any of the similar privileges available
under Dominican law.
---------------------------------------------------------------------------
\19\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \20\
---------------------------------------------------------------------------
\20\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 17, art.
7(2); U.S.- Philippines Mutual Legal Assistance Treaty, supra note 5,
art. 8(4).
---------------------------------------------------------------------------
Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
this paragraph provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance, and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Dominica under this article in
appropriate cases. \21\
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\21\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated in accordance with the procedures
specified in the request, and if authenticated in this manner,
the evidence shall be admissible in evidence in the Requesting
State. Thus, the Treaty establishes a procedure for
authenticating official foreign documents that is consistent
with Rule 902(3) of the Federal Rules of Evidence and Rule 44,
Federal Rules of Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6 if requested by the person whose appearance is
sought.
Paragraph l provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while he is in
the Requesting State. Most U.S. mutual legal assistance
treaties anticipate that the Central Authority will determine
whether to extend such safe conduct, but under the Treaty with
Dominica, the Central Authority merely reports whether safe
conduct has been extended. This is because in Dominica only the
Director of Public Prosecutions can extend such safe conduct,
and the Attorney General (who is Central Authority for Dominica
under Article 3 of the Treaty) cannot do so. This ``safe
conduct'' is limited to acts or convictions that preceded the
witness's departure from the Requested State. It is understood
that this provision would not prevent the prosecution of a
person for perjury or any other crime committed while in the
Requesting State.
Paragraph 3 states that the safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer
required, or if the person leaves the territory of the
Requesting State and thereafter returns to it. However, the
competent authorities of the Requesting State may extend the
safe conduct up to fifteen days if they determine that there is
good cause to do so. For the United States, the ``competent
authorities'' for these purposes would be the Central
Authority.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \22\
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\22\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \23\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \24\
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\23\ U.S.-Switzerlanual Legal Assistance Treaty, supra note 13,
art. 26.
\24\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
It is also consistent with Sections 10 and 23, Dominica Mutual
Assistance Act 1992.
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Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State
for that purpose if the person consents and if the Central
Authorities of both States agree. This would also cover
situations in which a person in custody in the United States on
a criminal matter has sought permission to travel to another
country to be present at a deposition being taken there in
connection with the case. \25\
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\25\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State.
\26\ The extent of such efforts will vary, of course, depending
on the quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
---------------------------------------------------------------------------
\26\ This is consistent with Section 201, Dominica Mutual
Assistance Act 1990.
---------------------------------------------------------------------------
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. This is
consistent with Dominica law, \27\ and identical provisions
appear in several U.S. mutual legal assistance treaties.
---------------------------------------------------------------------------
\27\ Section 25, Dominica Mutual Assistance Act 1990.
---------------------------------------------------------------------------
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Dominica to follow a
specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782, \28\ and the courts
of Dominica have the power to execute such requests, under
Section 21 of the Dominica Mutual Assistance Act 1992. This
article creates a formal framework for handling such requests.
---------------------------------------------------------------------------
\28\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984).
---------------------------------------------------------------------------
Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Dominica will have to be supported by a
showing of probable cause for the search. A United States
request to Dominica would have to satisfy the corresponding
evidentiary standard there, which is ``a reasonable basis to
believe'' that the specified premises contains articles likely
to be evidence of the commission of an offense.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced under
this article. As in Articles 8(5) and 9(3), the injunction that
the certificates be admissible without additional
authentication leaves the trier of fact free to bar use of the
evidence itself, in spite of the certificate, if there is some
reason to do so other than authenticity or chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \29\
---------------------------------------------------------------------------
\29\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 20;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 17; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.- Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jan. 6, 1994.
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Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. The delegations understood
that this requirement would be invoked only if the Central
Authority of the Requested State specifically requests it at
the time that the items are delivered to the Requesting State.
It is anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Dominica in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Dominica, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \30\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the U.S.
since these offenses are predicate offenses under U.S. money
laundering laws. \31\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
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\30\ This statute makes it annse to transport money or valuables in
interstate or foreign commerce knowing that they were obtained by fraud
in the United States or abroad.
\31\ Title 18, United States Code, Section 1956(c)(7)(B).
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If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B) allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \32\ The United States delegation
expects that Article 16 of the Treaty will enable this
legislation to be even more effective.
---------------------------------------------------------------------------
\32\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \33\
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\33\ In Dominica, unlike the U.S., the law does not currently allow
for civil forfeiture. However, Dominica law does permit forfeiture in
criminal cases, and ordinarily a defendant must be convicted in order
for Dominica to confiscate the defendant's property.
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\34\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
---------------------------------------------------------------------------
\34\ See Title 18, United States Code, Section 981 (i)(1).
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Article 17--Compatibility with Other Arrangements
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Dominica law on letters rogatory completely undisturbed,
and would not alter any pre-existing agreements concerning
investigative assistance. \35\
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\35\ See e.g., the U.S.-Dominica Agreement for the Exchange of
Information With Respect to Taxes, signed at Washington October 1,
1987, entered into force May 9, 1988, T.I.A.S. 11543.
---------------------------------------------------------------------------
Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which Treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \36\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
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\36\ See e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 17, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 29, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 5, art. 18.
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Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented pursuant to it after it enters into force,
even if the relevant acts or omissions occurred before the date
on which the Treaty entered into force. Provisions of this kind
are common in law enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and the Republic of Estonia on Mutual Legal Assistance in Criminal
Matters
On April 2, 1998, the Attorney General of the United States
and the Ambassador of the Republic of Estonia signed a Treaty
on Mutual Legal Assistance in Criminal Matters (``the
Treaty''). The Treaty with Estonia is the third mutual legal
assistance treaty the United States has concluded with a
republic of the former Soviet Union.
In recent years, the United States has signed treaties with
a substantial 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 with Estonia is a major advance in
the formal law enforcement relationship between the two
countries and is expected to be a valuable weapon for the
United States in its efforts to combat transnational terrorism,
international drug trafficking, and Russian organized crime.
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 Estonian
delegation advised that the Treaty would be self-executing in
Estonia.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the state of that law at the time of the negotiations,
to the best of the drafters* knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre- charge proceedings in Estonia,
and other legal measures taken prior to the filing of formal
charges in either State. \1\ The negotiators also agreed that
``investigations'' includes administrative inquiries by
agencies or entities with authority to investigate for the
purpose of determining whether to refer matters to the
Department of Justice for criminal prosecution. \2\ The term
``proceedings'' was intended to cover the full range of
proceedings in a criminal case, including such matters as bail
and sentencing hearings. \3\ It was also agreed that since the
phrase ``proceedings related to criminal matters'' is broader
than the investigation, prosecution or sentencing process
itself, proceedings covered by the Treaty need not be strictly
criminal in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \4\ yet such proceedine covered by the Treaty.
---------------------------------------------------------------------------
\1\ The requirement assistance be provided under the Treaty at the
pre-indictment stage is critical to the U.S., as our investigators and
prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Estonia under the
Treaty in connection with investigations prior to charges being filed
in Estonia. Prior to the 1996 amendments to Section 1782, some U.S.
courts had interpreted that Section to require that assistance be
provided in criminal matters only if formal charges have already been
filed abroad, or are ``imminent,'' or ``very likely.'' McCarthy, ``A
Proposed Uniform Standard for U.S. Courts in Granting Requests for
International Judicial Assistance,'' 15 Fordham Int'l Law J. 772
(1991). The 1996 amendment eliminates this problem, however, by
amending subsec. (a) to state ``including criminal investigation
conducted before formal accusation.'' In any event, this Treaty was
intentionally written to cover criminal investigations that have just
begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\2\ Although n critical as is assistance for grand jury
investigations, the U.S. nonetheless relies on agencies and entities
(e.g., the Internal Revenue Service, the Securities and Exchange
Commission) to conduct administrative inquiries into potential criminal
misconduct and, in appropriate instances, to refer the matters for
criminal prosecution. The negotiators here, as did the negotiators for
Latvia and for Lithuania, agreed that the U.S. could expect assistance
in response to requests on behalf of such U.S. agencies and entities
made for the purpose of determining whether to refer matters for
criminal prosecution.
\3\ United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters that are at
the investigatory stage, or that are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Paragraph 3 specifies that the principle of double or dual
criminality - - that the obligation of the Requested State to
provide assistance only attaches where the criminal conduct
committed in the Requesting 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.
During the negotiations, the Estonian delegation provided
assurances that assistance would be available under the Treaty
to the United States in criminal matters involving such
offenses as conspiracy; drug trafficking, including continuing
criminal enterprise (Title 21, United States Code, Section
848); offenses under the racketeering statutes (Title 18,
United States Code, Sections 1961-1968); money laundering;
terrorism; tax crimes, including tax evasion and tax fraud;
crimes against environmental protection laws; antitrust
violations; and alien smuggling.
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties, \5\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Estonia by letters
rogatory, an avenue of international assistance that the Treaty
leaves undisturbed. Similarly, the paragraph provides that the
Treaty is not intended to create any right in a private person
to suppress or exclude evidence provided pursuant to the
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
\5\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
Article 2(1) requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Estonia on behalf of federal, state, and local
prosecutors and other law enforcement authorities in the United
States. The Estonian Central Authority would make all requests
emanating from officials in Estonia.
Article 2(2) provides that the Attorney General or a person
designated by the Attorney General shall be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \6\
Article (2)(2) also provides that the Central Authority for the
Republic of Estonia will be the Ministry of Justice or a person
designated by the Minister of Justice.
---------------------------------------------------------------------------
\6\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
---------------------------------------------------------------------------
Article 2(3) provides that the Central Authorities shall
communicate directly with one another for purposes of making
and executing requests. It is anticipated that such
communication will be accomplished by telephone, telefax, or
any other means, at the option of the Central Authorities.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph 1(b) permits denial of a request if it involves a
political offense. It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
Paragraph (1)(c) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or similar essential interests of
that State. All United States mutual legal assistance treaties
contain provisions allowing the Requested State to decline to
execute a request if execution would prejudice its essential
interests.
The delegations agreed that the word ``security'' would
include cases where assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the Department of Justice, in its role
as Central Authority for the United States, would work closely
with the Department of State and other Government agencies to
determine whether to execute a request that falls into this
category.
The delegations agreed that the phrase ``essential
interests'' is intended to limit narrowly the class of cases in
which assistance may be denied. It is not enough that the
Requesting State's case is one that would be inconsistent with
public policy had it been brought in the Requested State.
Rather, the Requested State must be convinced that execution of
the request would seriously conflict with significant public
policy. An example is a request involving prosecution by the
Requesting State of conduct that occurred in the Requested
State that is constitutionally protected in the Requested
State.
The delegations further agreed that ``essential interests''
may include interests unrelated to national military or
political security, and may be invoked if the execution of a
request would violate essential interests related to the
fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation. The attainment of that goal would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Accordingly, the
United States Central Authority may invoke paragraph 1(c) to
decline to provide sensitive or confidential drug-related
information pursuant to a Treaty request whenever it
determines, after appropriate consultation with law
enforcement, intelligence, and foreign policy agencies, that a
senior foreign government official who likely will have access
to the information is engaged in or facilitates the production
or distribution of illegal drugs, and is using the request to
the prejudice of a United States investigation or prosecution.
\7\
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\7\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2d Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, Department of
Justice).
---------------------------------------------------------------------------
Paragraph 1(d) permits the denial of a request if it is not
made in conformity with the Treaty.
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \8\ and obliges the
Requested State to consider imposing appropriate conditions on
its assistance in lieu of denying a request outright pursuant
to the first paragraph of the article. For example, a
Requesting State might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph permits the
Requested State to provide the information on the condition
that it be used only in the routine criminal case. Naturally,
the Requested State would notify the Requesting State of any
proposed conditions before actually delivering the evidence in
question, thereby according the Requesting State an opportunity
to indicate whether it is willing to accept the evidence
subject to the conditions. If the Requesting State does accept
the evidence subject to the conditions, it must honor the
conditions.
---------------------------------------------------------------------------
\8\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the grounds for any denial of
assistance. This ensures that, when a request is only partly
executed, the Requested State will provide some explanation for
not providing all of the information or evidence sought. This
should avoid misunderstandings, and enable the Requesting State
to better prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations.'' A request in
another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise, and the request shall be in the language or
translated into the language of the Requested State unless
otherwise agreed.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty that must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, first review it, then
promptly notify the Central Authority of the Requesting State
if the request does not appear to comply with the Treaty's
terms. Where the request satisfies the Treaty's requirements
and the assistance sought can be provided by the Central
Authority itself, the request will be fulfilled immediately.
Where the request meets the Treaty's requirements but its
execution requires action by some other entity in the Requested
State, the Central Authority will promptly transmit the request
to the correct entity for execution. When the United States is
the Requested State, it is anticipated that the Central
Authority will transmit most requests to federal investigators,
prosecutors, or judicial officials for execution if the Central
Authority deems it appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Estonia. Rather, it is
anticipated that when a request from Estonia requires
compulsory process for execution, the United States Department
of Justice would ask a federal court to issue the necessary
process under Title 28, United States Code, Section 1782, and
the provisions of the Treaty. \9\
---------------------------------------------------------------------------
\9\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) authorizes the courts or
competent authorities of the Requested State ``to issue
subpoenas, search warrants, or other orders necessary to
execute the request.'' The term ``competent authorities''
refers to the fact that in Estonia, public prosecutors, as well
as courts, are empowered under Estonian law to issue subpoenas,
search warrants, or other orders necessary to execute requests.
In Estonia public prosecutors almost exclusively will execute
requests from the United States, whereas in the United States,
execution can be entrusted to any appropriate competent
authority in the executive or judiciary branch of government,
federal or state. When a request from Estonia requires
compulsory process for execution, it is anticipated that the
competent executive authority in the United States will issue
the necessary compulsory process itself, \10\ or ask a court to
do so.
---------------------------------------------------------------------------
\10\ For example, the Securities and Exchange Commission has the
power to issue compulsory process to obtain evidence to execute a
request for assistance from certain foreign authorities.
---------------------------------------------------------------------------
Paragraph 2 reconfirms that the Central Authority of the
Requested State shall arrange for requests from the Requesting
State to be presented to the appropriate authority in the
Requested State for execution. In practice, the Central
Authority for the United States will transmit the request with
instructions for 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 will select an appropriate representative,
generally a federal prosecutor, to present the matter to a
court. Thereafter, the prosecutor will represent the United
States, acting to fulfill its obligations to Estonia under the
Treaty by executing the request. Upon receiving the court's
appointment as a commissioner, the prosecutor/commissioner will
act as the court's agent in fulfilling the court's
responsibility to do ``everything in [its] power'' to execute
the request. In short, the prosecutor may only exercise the
court's authority in using compulsory measures if he receives
permission from the court to do so.
The situation with respect to Estonia is different. The
U.S. Central Authority will transmit all requests to the
Estonian Ministry of Justice, which will assign each request to
an appropriate public prosecutor. Public prosecutors in Estonia
have authority to order compulsory process, including, but not
limited to, requiring a witness to appear to provide testimony,
issuing subpoenas to compel the production of documents or
other evidence, and ordering a search and seizure. The exercise
of this authority by Estonian prosecutors does not require the
consent of a court. In other words, unlike in the United
States, a Estonian prosecutor may execute a foreign request
seeking compulsory process without the assistance of the
Estonian courts.
Paragraph 3 provides that requests shall be executed in
accordance with the laws of the Requested State except to the
extent that the Treaty provides otherwise. Thus, for example,
the provision in Article 8(4) that claims of privilege under
the law of the Requesting State are to be referred back to the
courts of the Requesting State would take precedence over a
contrary provision in domestic law. To illustrate, 28 U.S.C.
1782 permits, as a basis for not compelling testimony or
production of evidence, deference to privileges legally
applicable in a Requesting State. To the extent that this
provision were considered to be in conflict with the Treaty,
the Treaty provision would prevail.
The second sentence of Paragraph 3 makes clear that the
Treaty does not authorize the use in the Requested State of
procedures that would otherwise be unlawful in the Requested
State.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing criminal investigation or proceeding in the
Requested State. The Central Authority of the Requested Party
may, in its discretion, take such preliminary action as deemed
advisable to obtain or preserve evidence that might otherwise
be lost before the conclusion of the investigation or legal
proceeding in that State. The paragraph also allows the
Requested State to provide the information sought to the
Requesting State subject to conditions needed to avoid
interference with the Requested State's proceeding or
investigation.
It is anticipated that some United States requests for
assistance may contain information that under United States law
must be kept confidential. For example, it may be necessary to
set out information that is ordinarily protected by Rule 6(e),
Federal Rules of Criminal Procedure, in the course of
explaining ``the subject matter and nature of the
investigation, prosecution, or proceeding'' as required by
Article 4(2)(b). This paragraph enables the Requesting State to
call upon the Requested State to keep the information in the
request confidential. \11\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
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\11\ This provision is similar to language in other United States
mutual legal assistance treaties. See, e.g., U.S.- Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985, art. 6(5); U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual
Legal Assistance Treaty, Nov. 13, 1994, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is delayed or postponed, the Central
Authority of the Requested State must also explain the reasons
to the Central Authority of the Requesting State. For example,
if the evidence sought could not be located, the Central
Authority of the Requested State would report that fact to the
Central Authority of the Requesting State.
Article 6--Costs
Article 6 obligates the Requested State to pay all costs
relating to the execution of a request except for those costs
enumerated in the article. The enumerated exceptions are: fees
of experts; translation, interpretation and transcription
costs; and allowances and expenses related to travel of persons
traveling either in the Requested State for the convenience of
the Requesting State or pursuant to Articles 10 and 11. This
provision is consistent with similar provisions in other United
States mutual legal assistance treaties. \12\
---------------------------------------------------------------------------
\12\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 11, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 11, art. 6.
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Costs ``relating to'' execution means the costs normally
incurred in transmitting a request to the executing authority,
notifying witnesses and arranging for their appearances,
producing copies of the evidence, conducting a proceeding to
compel execution of the request, etc. The negotiators agreed
that costs ``relating to'' execution to be borne by the
Requested State do not include expenses associated with the
travel of investigators, prosecutors, counsel for the defense,
or judicial authorities to, for example, question a witness or
take a deposition in the Requested State pursuant to Article
8(3), or travel in connection with Articles 10 and 11.
Paragraph 2 of this article provides that if it becomes
apparent during the execution of a request that complete
execution of a request would require extraordinary expenses,
then the Central Authorities shall consult to determine the
terms and conditions under which execution may continue.
Article 7--Limitations on Use
Under Article 4(2)(d), the Requesting State must specify
the purpose for which the information or evidence sought under
the Treaty is needed. Under Article 7(1), the Central Authority
of the Requested State may require that information provided
under the Treaty be used only for the purpose stated in the
request unless the Requested State provides its prior consent.
If the Requested State limits the subsequent use of the
information or evidence it provides, then the Requesting State
must comply with the requirement.
Both delegations agreed that the Central Authority of the
Requested State will not routinely require use limitations
under paragraph 1. Rather, it is expected that such limitations
will be requested sparingly, only when there is good reason to
restrict the use of the evidence.
Paragraph 2 authorizes the Requested State to request that
the information or evidence it provides to the Requesting State
be kept confidential. This paragraph operates in situations
outside Article 3 where the Requested State has no basis to
deny or limit assistance. For instance, the Requested State may
wish to cooperate with the investigation in the Requesting
State but to limit access to information that would unduly
prejudice the interests of persons not connected with the
matter being investigated. Paragraph 2 permits the request for
confidentiality. If the Requesting State accepts the assistance
with this condition, it is required to make ``best efforts'' to
comply with it. This ``best efforts'' language was used because
the purpose of the Treaty is the production of evidence for use
at trial, and that purpose would be frustrated if the Requested
State could routinely permit the Requesting State to see
valuable evidence, but impose confidentiality restrictions that
prevent the Requesting State from using it. If assistance is
provided with a condition under this paragraph, the United
States could deny public disclosure under the Freedom of
Information Act.
Situations could arise in which the United States received
information or evidence under the Treaty with respect to one
case that was exculpatory of a defendant in another case and
might be obliged to share the evidence or information with the
defense. Brady v. Maryland, 373 U.S. 83 (1963). Therefore,
Paragraph 3 provides that nothing in Article 7 would preclude
the use or disclosure of information or evidence to the extent
that such information or evidence is exculpatory to a defendant
in a criminal prosecution.
Paragraph 4 states that once information or evidence
obtained under the Treaty has been revealed to the public ``in
the normal course of the proceeding for which it was
provided,'' the Requesting State is free to use it for any
purpose. Once so revealed to the public, it effectively becomes
part of the public domain, a matter of common knowledge,
perhaps even be described in the press. The negotiators noted
that once this has occurred, it is practically impossible for
the Central Authority of the Requesting State to block the use
of the information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Parties, and the invocation and enforcement of these provisions
are left entirely to the Parties. If a person alleges that a
United States authority seeks to use information or evidence
obtained from Estonia in a manner inconsistent with this
Article, the person can so inform the Central Authority of
Estonia for its consideration as a matter between the Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents and records. The compulsion contemplated by this
article can be accomplished by subpoena or any other means
available under the law of the Requested State.
In Estonia, public prosecutors and courts each have the
power to compel testimony or documents from individuals or
entities in connection with both domestic and foreign
proceedings. The authority of the public prosecutor to issue
subpoenas and to use other compulsory measures exists
independently of the courts. In the United States, a prosecutor
asks that a federal district court appoint the prosecutor as a
commissioner, thereby empowering the prosecutor to issue
subpoenas on behalf of the foreign authority. Moreover, the
prosecutor/commissioner must return to the court for
enforcement in the event of noncompliance.
The second sentence of paragraph 1 provides that a person
who gives false testimony, either orally or in writing, in
execution of a request shall be subject to prosecution in the
Requested State in accordance with the criminal laws of that
State. The criminal laws of both the U.S. and Estonia contain
provisions that sanction the production of false evidence. The
negotiators expect that, with respect to a falsehood made in
execution of a request, the Requesting State could ask the
Requested State to prosecute and provide the Requested State
with the information or evidence needed to prove the falsehood.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, which may include the defendant and defense counsel in
criminal cases, shall be permitted by the Requested State to be
present during the execution of a request and pose questions
during the taking of testimony. Neither delegation foresaw a
problem in accommodating the needs for confrontation under
either system. Moreover, the Estonian negotiators also assured
the U.S. delegation that a stenographer could be present at
depositions in Estonia. The presence of a stenographer is
generally critical to preserve testimony of witnesses inasmuch
as the 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.
Paragraph 4 deals with claims of immunity, incapacity, and
privilege based on the law of the Requesting State but raised
in the Requested State. The immunities and privileges available
to witnesses under the law of the Requested State are not
affected by paragraph 4. No person will be compelled in the
Requested State to furnish information or evidence if he has a
right not to do so under the law of the Requested State. Thus,
a witness questioned in the United States pursuant to a request
from Estonia, in addition to any applicable constitutional
privilege (e.g., self-incrimination, to the extent applicable
in the context of evidence being taken for foreign
proceedings), may claim a testimonial privilege (e.g.,
attorney-client) legally recognized under United States law.
Likewise, a witness testifying in Estonia may raise any of the
similar privileges available under Estonian law. However,
paragraph 4 does require that if a witness attempts to assert
in the Requested State a privilege that is unique to the
Requesting State, the Requested State will nonetheless take the
requested evidence and turn it over to the Requesting State
along with notice that it was obtained over a claim of
privilege. The applicability of the privilege can then be
determined in the Requesting State, where the scope of the
privilege and the legislative and policy reasons underlying the
privilege are best understood. A similar provision appears in
many U.S. mutual legal assistance treaties. \13\
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\13\ See, e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty; supra note 11, art.
7(2); U.S.- Philippines Mutual Legal Assistance Treaty, supra note 11,
art. 8(4).
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Paragraph 5 is primarily for the benefit of the United
States. The United States evidentiary system requires that
evidence that is to be used as proof 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 ``[e]vidence produced . . .
pursuant to this Article,'' the negotiators focused on and were
primarily concerned with business records. In order to ensure
the United States that business records provided by Estonia
pursuant to the Treaty could be authenticated in a manner
consistent with existing U.S. law, the negotiators crafted Form
A to track the language of Title 18, United States Code,
Section 3505, the foreign business records authentication
statute. If the Estonian authorities properly complete, sign,
and attach Form A to executed documents, or submit Form B
certifying the absence or non-existence of business records, a
U.S. judge may admit the records into evidence without the
appearance at trial of a witness. The admissibility provided by
this paragraph provides for an exception to the hearsay rule;
however, admissibility extends only to authenticity and not to
relevance, materiality, etc., of the evidence. Whether the
evidence is, in fact, admitted is a determination within the
province of the judicial authority presiding over the
proceeding for which the evidence is provided.
Article 9--Official Records
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by an executive,
legislative, or judicial authority in the Requested State.
Paragraph 2 provides that the Requested State may provide
copies of any records, including documents or information in
any form, that are in the possession of an executive,
legislative, or judicial authority in that State, but that are
not publicly available, to the same extent and under the same
conditions as such copies would be available to its own law
enforcement or judicial authorities. The Requested State may in
its discretion deny a request for records that are not publicly
available entirely or in part.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty in tax
matters, and such assistance could include tax return
information when appropriate. The United States delegation was
satisfied after discussion that this Treaty is a ``convention
relating to the exchange of tax information'' for purposes of
Title 26, United States Code, Section 6103(k)(4), and the
United States would have the discretion to provide tax return
information to Estonia under this article in appropriate cases.
\14\
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\14\ Under 26 U.S.C. 6103(i) information in the files of the
Internal Revenue Service (generally protected from disclosure under 26
U.S.C. 6103) may be disclosed to federal law enforcement personnel in
the United States for use in a non-tax criminal investigations or
proceedings, under certain conditions and pursuant to certain
procedures. The negotiators agreed that this Treaty (which provides
assistance both for tax offenses and in the form of information in the
custody of tax authorities of the Requested State) is a ``convention .
. . relating to the exchange of tax information'' under Title 26,
United States Code, Section 6103(k)(4), pursuant to which the United
States may exchange tax information with treaty partners. Thus, the
Internal Revenue Service may provide tax returns and return information
to Estonia through this Treaty when, in a criminal investigation or
prosecution, the Estonian authority on whose behalf the request is made
can meet the same conditions required of United States law enforcement
authorities under Title 26, United States Code, Sections 6103(h) and
(i). As an illustration, an Estonian request for tax returns to be used
in a non-tax criminal investigation, in accordance with 26 U.S.C.
6103(i)(1)(A), would have to specify that the Estonian 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 Estonian
criminal statute (not involving tax administration) to which Estonia is
or may be a party.
(ii) any investigation which may result in such a proceeding, or
(iii) any Estonian proceeding pertaining to enforcement of such a
criminal statute to which Estonia is or may be a party. (See 26 U.S.C.
6103(i)(1)(A).)
The request would have to be presented to a federal district court
judge or magistrate for an order directing the Internal Revenue Service
to disclose the tax returns as specified at 26 U.S.C. 6103(i)(1)(B).
Before issuing such an order, the judge or magistrate would have to
determine, also in accordance with 26 U.S.C. 6103(i)(1)(B), that:
(i) there is reasonable cause to believe, based upon information
believed to be reliable, 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 an Estonian criminal investigation or proceeding concerning such
act, and the information sought to be disclosed cannot reasonably be
obtained, under the circumstances, from another source.
In other words, the Estonian law enforcement authorities seeking
tax returns would be treated as if they were United States law
enforcement authorities--undergo the same access procedure where they
would be held to the same standards.
---------------------------------------------------------------------------
Paragraph 3 is primarily for the benefit of the United
States. It provides for the authentication of records produced
pursuant to this Article by an executive, legislative, or
judicial authority responsible for their maintenance. Such
authentication is to be effected through the use of Form C
appended to the Treaty. If the Estonian authorities properly
complete, sign, and attach Form C to executed documents, or
submit Form D certifying the absence or non-existence of such
records, a U.S. judge may admit the records into evidence as
self-authenticating under Rule 902(3) of the Federal Rules of
Evidence. The admissibility provided by this paragraph provides
for an exception to the hearsay rule; however, admissibility
extends only to authenticity and not to relevance, materiality,
etc., of the evidence. Whether the evidence is, in fact,
admitted is a determination within the province of the judicial
authority presiding over the proceeding for which the evidence
is provided.
Article 10--Appearance Outside the Requested State
Paragraph 1 provides that upon request, the Requested State
shall invite persons who are located in its territory to travel
to the Requesting State to appear before an appropriate
authority there. The Central Authority of the Requested State
shall notify the Requesting State of the invitee's response. An
appearance in the Requesting State under this article is not
mandatory, and the prospective witness may refuse the
invitation.
Paragraph 2 concerns travel expenses, previously covered
under Article 6. Normally such expenses include the costs of
transportation, room, and board. Paragraph 2 also provides that
the person who agrees to travel to the Requesting State may
request and receive an advance for expenses. The advance may be
provided through the embassy or a consulate of the Requesting
State.
Paragraph 3 provides that the Central Authority of the
Requesting State may, in its discretion, determine that a
person appearing in the Requesting State pursuant to this
Article shall not be subject to service of process, or be
detained or subjected to any restriction of personal liberty,
by reason of any acts or convictions that preceded the person's
departure from the Requested State. Most U.S. mutual legal
assistance treaties anticipate that the Central Authority will
determine whether to extend such safe conduct. This ``safe
conduct'' is limited to acts or convictions that preceded the
witness's departure from the Requested State. It is understood
that this provision would not prevent the prosecution of a
person for perjury or any other crime committed while in the
Requesting State.
Paragraph 4 provides for expiration of the ``safe conduct''
seven days after notification between Central Authorities that
the person's presence is no longer required. Paragraph 4 is
intended to further provide that the Central Authority of the
Requesting State may, in its discretion, extend this period
(``for up to fifteen days if it determines that there is good
cause to do so''). (The Treaty erroneously and inadvertently
states that the Requested State may extend the ``safe
conduct,'' when what was intended was that the Requesting State
may do so. This error is being corrected by means of an
exchange of notes between the United States and Estonia.)
Article 11--Transfer of Persons in Custody
The need sometimes arises for a person in custody in one
country to assist in a criminal matter--generally to give
testimony--in another country. The country maintaining custody
may be willing and able to ``lend'' the person provided the
person is guarded while absent from the lending country and
returned to that country when no longer needed in the other
country. On occasion, the United States Justice Department has
arranged for consenting federal inmates in the United States to
be transported to foreign countries to assist in criminal
proceedings. \15\
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\15\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
by means of temporary transfers. Although the provision is
based on Article 26 of the United States-Switzerland Mutual
Legal Assistance Treaty, \16\ which in turn is based on Article
11 of the European Convention on Mutual Assistance in Criminal
Matters, \17\ paragraph 1 expands the geographic scope and the
purpose for the transfer to authorize a transfer ``outside the
Requested State,'' which could also be to a third State.
---------------------------------------------------------------------------
\16\ U.S.-Switzerlanual Legal Assistance Treaty, supra note 8, art.
26.
\17\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State if
the person consents and if the Central Authorities of both
States agree. This would also cover situations in which a
person in custody in the United States on a criminal matter has
sought permission to travel to another country to be present at
a deposition being taken there in connection with the case.
\18\
---------------------------------------------------------------------------
\18\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
---------------------------------------------------------------------------
Paragraph 3(a) 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,
unless otherwise authorized by the sending State.
Paragraph 3(b) provides that the receiving State must
return the transferred person to the custody of the sending
State as soon as circumstances permit or as otherwise agreed by
the Central Authorities. The transferred person need not
consent to the return to the sending State, only to the
original transfer.
Paragraph 3(c) 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 Estonia to the
United States and files a habeas corpus in an attempt to
prevent a return to Estonia in the absence of an extradition
request.
Paragraph 3(d) states that the person transferred will
receive credit in the sending State for the time in custody in
the receiving State.
Paragraph 3(e) provides that, where the receiving State is
a third state, the Requesting State shall make all arrangements
necessary to meet the requirements of this paragraph.
Paragraph 4 states that safe conduct for the transferred
person may be provided for by the Central Authority of the
receiving State under the same terms set forth in Article 10,
except that the person shall be kept in custody for the offense
for which the person is incarcerated in the sending State.
Article 12--Transit of Persons in Custody
Most modern extradition treaties provide for cooperation in
the transit of persons being extradited, \19\ although the
extradition treaty currently in force between the United States
and Estonia \20\ is silent on this topic. Article 12 is not
focused on the transit of extradited persons. Rather, this
article provides a basis for mutual cooperation with respect to
prisoners who are involved in a criminal investigation or
prosecution other than as extradited fugitives (e.g., as
witnesses appearing to testify or as defendants appearing to be
present at a proceeding).
---------------------------------------------------------------------------
\19\ See, e.g., U.S.-Hungary Extradition Treaty, Dec. 1, 1994, art.
19; U.S.-Japan Extradition Treaty, Mar. 3, 1978, art. 15, 31 U.S.T.
892, T.I.A.S. 9625.
\20\ See U.S.-Estonia Extradition Treaty, Nov. 8, 1923, 43 Stat.
1849, TS 703, and the Supplementary Treaty of October 10, 1934, 49
Stat. 3190, TS 888.
---------------------------------------------------------------------------
Paragraph 1 gives each Party the power to authorize transit
through its territory of a person being transferred to or from
the other State from or to a third State. Paragraph 2 obligates
each Party to keep in custody a person in transit during the
transit period. Requests for transit are to contain a
description of the person being transported and a brief
statement of the facts of the matter for which the person is
traveling.
Under this article, no advance authorization is needed if
the person in custody is in transit to one of the Parties and
is traveling by aircraft and no landing is scheduled in the
territory of the other. Should an unscheduled landing occur, a
request for transit may be required at that time, and the
Requested State may grant the request if, in its discretion, it
is deemed appropriate to do so. Where transit is granted, the
person in transit shall be kept in custody until such time as
the person may continue in transit out of the Requested State.
Article 13--Location or Identification of Persons or Items
This article requires each 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,
regarding the location of the person or item. 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.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items in third countries. In
all instances, the Requesting State is expected to supply all
available information about the last known location of the
persons or items sought.
Article 14--Service of Documents
Paragraph 1 requires the Requested State to use its ``best
efforts'' to effect service of any document related to any
request for assistance made under the Treaty. ``Best efforts''
varies depending on the information provided in the request, in
accordance with Article 4. It is expected that when the United
States is the Requested State, service under the Treaty will be
made by registered mail (in the absence of any request by
Estonia to follow a specified procedure for service) or by the
United States Marshal's Service in instances in which personal
service is requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 15--Search and Seizure
Where appropriate, the Requested State may search for,
secure, and deliver items needed as evidence, or for other
purposes, for the Requesting State. Article 5(1) authorizes
United States courts to issue search warrants to obtain
evidence requested by Estonia.
Article 15 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Estonia will have to be supported by a
showing of probable cause for the search. A United States
request to Estonia would have to satisfy the corresponding
evidentiary standard in Estonia.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form E appended to this Treaty, the identity
of the item, the continuity of custody, and any changes in its
condition.
The article also provides that the certificates describing
continuity of custody will be admissible in evidence in the
Requesting State as proof of the truth of the matters set forth
therein.
Paragraph 3 permits the Requested State, as a matter of
discretion, to protect the rights of third parties in the item
seized. The negotiators intended that the Requested State, in
using its discretion to impose conditions, would do so only to
the extent ``deemed to be necessary.'' This paragraph is not
intended to serve as an impediment to the transfer of items
seized. This article is similar to provisions in many other
United States mutual legal assistance treaties. \21\
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\21\ See, e.g., U.S.-Argentina Mutual Legal Assistance Treaty, Dec.
4, 1990, art. 15(3); U.S.-Bahamas Mutual Legal Assistance Treaty, supra
note 13, art. 15(3); U.S.-Canada Mutual Legal Assistance Treaty, supra
note 12, art. 15(4); U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, Jul. 3, 1986, art. 15(3); U.S.-Hungary
Mutual Legal Assistance Treaty, Dec. 1, 1994, art. 15(3); U.S.- Korea
Mutual Legal Assistance Treaty, Nov. 23, 1993, art. 15(3); U.S.-Panama
Mutual Legal Assistance Treaty, Apr. 11, 1991, art. 15(3); U.S.-
Philippines Mutual Legal Assistance Treaty, supra note 11, art. 15(3);
U.S.-Spain Mutual Legal Assistance Treaty, Nov. 20, 1990, art. 15(3);
U.S.-U.K. Mutual Legal Assistance Treaty, Jan. 6, 1994, art. 15(4).
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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 item, including
a document or record, provided by the Requested State pursuant
to the Treaty. Both Parties anticipate that, unless original
records or items of significant intrinsic value are involved,
the Requested State will not usually request return of the
item; however, both Parties recognize that this is a matter
best left to development in practice.
Article 17--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Estonia in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Estonia, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \22\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the
United States since these offenses are predicate offenses under
U.S. money laundering laws. \23\ Thus, it is a violation of
U.S. criminal law to launder the proceeds of these foreign
fraud or theft offenses when such proceeds are brought into the
United States.
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\22\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\23\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
If the assets are the proceeds of drug trafficking, it is
especially likely that the Parties will be able and willing to
help one another. Title 18, United States Code, Section
981(a)(1)(B) allows for the forfeiture to the United States of
property:
which represents the proceeds of an offense against a
foreign nation involving the manufacture, importation, sale, or
distribution of a controlled substance (as such term is defined
for the purposes of the Controlled Substance Act) within whose
jurisdiction such offense or activity would be punishable by
death or imprisonment for a term exceeding one year if such act
or activity had occurred within the jurisdiction of the United
States.
This is consistent with the laws in other countries, such
as Switzerland and Canada; there is a growing trend among
nations toward enacting legislation of this kind in the battle
against narcotics trafficking. \24\ The U.S. delegation expects
that Article 16 of the Treaty will enable this legislation to
be even more effective.
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\24\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances calls for the
States that are parties to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so.
Paragraph 3 will enable a Party having custody over
proceeds or instrumentalities of offenses to transfer forfeited
assets, or the proceeds of the sale of such assets, to the
other Party, at the former's discretion and to the extent
permitted by their respective laws.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\25\
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\25\ See Title 18, United States Code, Section 981 (i)(1).
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Estonian law neither authorizes nor prohibits sharing and,
thus, the Estonian delegation stated that Estonia could share a
percentage of forfeited proceeds with the United States on a
case-by-case basis.
Article 18--Compatibility with Other Treaties
This article clarifies that assistance and procedures
provided by this Treaty shall not prevent either Party from
providing assistance under any other applicable international
agreements. Article 18 also leaves intact the recourse to any
assistance available under the internal laws of either State.
Thus, the provisions of United States and Estonia law on
letters rogatory remain undisturbed, and the Treaty does not
alter any pre-existing agreements concerning investigative
assistance.
Article 19--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Parties will share those ideas with one another, and
encourages them to agree on the implementation of such
measures. Practical measures of this kind might include methods
of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \26\ It
is anticipated that the Central Authorities will conduct
regular consultations pursuant to this article.
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\26\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 11, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 12, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 21, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 21, art. 18.
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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 provides that this Treaty shall enter into
force upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty will be terminated six
months from the date that a Party receives written notification
from the other. Similar termination provisions are contained in
other United States mutual legal assistance treaties.
Technical Analysis of The Treaty Between The United States of America
and Grenada on Mutual Legal Assistance in Criminal Matters
On May 30, 1996, the United States signed a treaty with
Grenada 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 expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking in
the eastern Caribbean, where Grenada is a regional leader.
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. Grenada plans to
enact implementing legislation for the Treaty, as it currently
has no specific mutual legal assistance law in force.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Grenada,
and other legal measures taken prior to the filing of formal
charges in either State. \1\ The term ``proceedings'' was
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
\2\ It was also agreed that since the phrase ``proceedings
related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \3\ yet such proceedings are covered by the
Treaty.
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\1\ The requirement assistance be provided under the Treaty at the
pre-indictment stage is critical to the U.S., as our investigators and
prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Grenada under the
Treaty in connection with investigations prior to charges being filed
in Grenada. Prior to the 1996 amendments to Title 28, United States
Code, Section 1782, some U.S. courts had interpreted that provision to
require that assistance be provided in criminal matters only if formal
charges have already been filed abroad, or are ``imminent,'' or ``very
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in
Granting Requests for International Judicial Assistance,'' 15 Fordham
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem,
however, by amending subsec. (a) to state ``including criminal
investigation conducted before formal accusation.'' In any event, the
Treaty was intentionally written to cover criminal investigations that
have just begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\2\ One United States court has interpreted Title 28, United States
Code, Section 1782 as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\3\ Title 21, United States Code, Section 881; Title 18, United
States Code, Section 1964.
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Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this Article 1, however, makes it clear that there is no
general requirement of dual criminality under this Treaty.
Thus, assistance may be provided even when the criminal matter
under investigation in the Requesting State would not be a
crime in the Requested State ``...except as otherwise provided
by this Treaty,'' a phrase which refers to Article 3(1)(e),
under which the Requested State may, in its discretion, require
dual criminality for a request under Article 14 (involving
searches and seizures) or Article 16 (involving asset
forfeiture matters). Article 1(3) is important because United
States and Grenada criminal law differ, and a general dual
criminality rule would make assistance unavailable in many
significant areas. This type of limited dual criminality
provision is found in other U.S. mutual legal assistance
treaties. \4\ During the negotiations, the United States
delegation received assurances that assistance would be
available under the Treaty to the United States in
investigations of such offenses as conspiracy; drug
trafficking, including continuing criminal enterprise (Title
21, United States Code, Section 848); offenses under the
racketeering statutes (Title 18, United States Code, Section
1961-1968); money laundering; tax crimes, including tax evasion
and tax fraud; crimes against environmental protection laws;
and antitrust violations.
---------------------------------------------------------------------------
\4\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \5\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence-gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Grenada by letters
rogatory, an avenue of international assistance that the Treaty
leaves undisturbed. Similarly, the paragraph provides that the
Treaty is not intended to create any right in a private person
to suppress or exclude evidence provided pursuant to the
Treaty, or impede the execution of a request.
---------------------------------------------------------------------------
\5\ United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), cert.
denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Grenada on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. The Grenadan Central Authority will make all requests
emanating from officials in Grenada.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \6\
Paragraph 2 also states that the Attorney General of Grenada or
a person designated by the Attorney General will serve as the
Central Authority for Grenada.
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\6\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or other essential public
interests of that State. All United States mutual legal
assistance treaties contain provisions allowing the Requested
State to decline to execute a request if execution would
prejudice its essential interests.
The delegations agreed that ``security'' would include
cases in which assistance might involve disclosure of
information which is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute requests that might
fall in this category.
The delegations also agreed that the phrase ``essential
public interests'' was intended to narrowly limit the class of
cases in which assistance may be denied. It would not be enough
that the Requesting State's case is one that would be
inconsistent with public policy had it been brought in the
Requested State. Rather, the Requested State must be convinced
that execution of the request would seriously conflict with
significant public policy. An example might be a request
involving prosecution by the Requesting State of conduct which
occurred in the Requested State and is constitutionally
protected in that State.
However, it was agreed that ``essential public interests''
could include interests unrelated to national military or
political security, and be invoked if the execution of a
request would violate essential United States interests related
to the fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph (1)(b) to decline
to provide sensitive or confidential drug-related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \7\
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\7\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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In general, the mere fact that the execution of a request
would involve the disclosure of records protected by bank or
business secrecy in the Requested State would not justify
invocation of the ``essential public interests'' provision.
Indeed, a major objective of the Treaty is to provide a formal,
agreed channel for making such information available for law
enforcement purposes. In the course of the negotiations, the
Grenada delegation expressed its view that in very exceptional
and narrow circumstances the disclosure of business or banking
secrets could be of such significant importance to its
Government (e.g., if disclosure would effectively destroy an
entire domestic industry rather than just a specific business
entity) that it could prejudice that State's ``essential public
interests'' and entitle it to deny assistance. \8\ The U.S.
delegation did not disagree that there might be such
extraordinary circumstances, but emphasized its view that
denials of assistance on this basis by either party should be
extremely rare.
---------------------------------------------------------------------------
\8\ Grenada's view of this provision is thus similar to the Swiss
view of Article 3(2) of the U.S.-Switzerland Treaty. See Technical
Analysis to the Treaty between the U.S. and Switzerland on Mutual
Assistance in Criminal Matters, signed May 25, 1973. U.S. Senate Exec.
F, 94th Cong. 2d Sess. p. 39 (1976).
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Paragraph (1)(c) permits the denial of a request if it was
not made in conformity with the Treaty.
Paragraph (1)(d) permits denial of a request if it involves
a political offense. It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
Paragraph (1)(e) permits denial of a request if there is no
``dual criminality'' with respect to requests made pursuant to
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters).
Finally, Paragraph (1)(f) permits denial of the request if
execution would be contrary to the Constitution of the
Requested State. This provision is similar to clauses in other
United States mutual legal assistance treaties. \9\
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\9\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989, art.
2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13, 1989,
art. III(1)(d).
---------------------------------------------------------------------------
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty \10\, and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\10\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
Where the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Grenada. Rather, it is
anticipated that when a request from Grenada requires
compulsory process for execution, the United States Department
of Justice would ask a federal court to issue the necessary
process under Title 28, United States Code, Section 1782, and
the provisions of the Treaty. \11\
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\11\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) reads ``[t]he competent
judicial or other authorities of the Requested State shall have
power to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in the execution of mutual
assistance requests. The phrase refers to ``judicial or other
authorities'' to include all those officials authorized to
issue compulsory process that might be needed in executing a
request. For example, in Grenada, justices of the peace and
senior police officers are empowered to issue certain kinds of
compulsory process under certain circumstances.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Article 5(2) is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \12\, and provides,
``[r]equests shall be executed according to the internal laws
and procedures of the Requested State, except to the extent
that this Treaty provides otherwise.'' Thus, the method of
executing a request for assistance under the Treaty must be in
accordance with the Requested State's internal laws absent
specific contrary procedures in the Treaty itself. Thus,
neither State is expected to take any action pursuant to a
Treaty request which would be prohibited under its internal
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to
carry out the obligations undertaken.
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\12\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 9.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Grenada
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documentary evidence taken abroad to be
admitted in evidence if the evidence is duly certified and the
defendant has been given fair opportunity to test its
authenticity. \13\ Grenada law currently contains no similar
provision. Thus, documents assembled in Grenada in strict
conformity with Grenadan procedures on evidence might not be
admissible in United States courts. Similarly, United States
courts utilize procedural techniques such as videotape
depositions to enhance the reliability of evidence taken
abroad, and some of these techniques, while not forbidden, are
not used in Grenada.
---------------------------------------------------------------------------
\13\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Article 5(3) requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested Party may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information that under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Article 5(5) enables the Requesting State to call
upon the Requested State to keep the information in the request
confidential. \14\ If the Requested State cannot execute the
request without disclosing the information in question (as
might be the case if execution requires a public judicial
proceeding in the Requested State), or if for some other reason
this confidentiality cannot be assured, the Treaty obliges the
Requested Party to so indicate, thereby giving the Requesting
Party an opportunity to withdraw the request rather than risk
jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\14\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, supra note 4, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \15\
Article 6, however, states that the Requesting State will pay
fees of expert witnesses, translation, interpretation and
transcription costs, and allowances and expenses related to
travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\15\ See e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 14, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 4, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
Article 7(1). Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Article 7(2) requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it.
The Grenada delegation expressed concern that information
it might supply in response to a request by the United States
under the Treaty not be disclosed under the Freedom of
Information Act. Both delegations agreed that since this
article permits the Requested State to prohibit the Requesting
State's disclosure of information for any purpose other than
that stated in the request, a Freedom of Information Act
request that seeks information that the United States obtained
under the Treaty would have to be denied if the United States
received the information on the condition that it be kept
confidential.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that there is an obligation to do
so under the Constitution of the Requesting State in a criminal
prosecution. Any such proposed disclosure and the provision of
the Constitution under which such disclosure is required shall
be notified by the Requesting State to the Requested State in
advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
paragraphs 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting State to block the use of that
information by third parties.
It should be kept in mind that under Article 1(4) of the
Treaty, the restrictions outlined in Article 7 are for the
benefit of the parties (the United States and Grenada) and the
invocation and enforcement of these provisions are left
entirely to the parties. Where any individual alleges that an
authority in Grenada is seeking to use information or evidence
obtained from the United States in a manner inconsistent with
this article, the recourse would be for the person to inform
the Central Authority of the United States of the allegations,
for consideration as a matter between the governments.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article.
Paragraph 4, read together with Article 5(3), insures that
no person will be compelled to furnish information if he has a
right not to do so under the law of the Requested State. Thus,
a witness questioned in the United States pursuant to a request
from Grenada is guaranteed the right to invoke any of the
testimonial privileges (e.g., attorney client, interspousal
privilege) available in the United States, as well as the
constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \16\ A witness testifying in
Grenada may raise any of the similar privileges available under
Grenadan law.
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\16\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \17\
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\17\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 14, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 4,
art. 8(4).
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Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
the article provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Grenada under this article in appropriate
cases. \18\
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\18\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated in accordance with the procedures
specified in the request, and if authenticated in this manner,
the evidence shall be admissible in evidence in the Requesting
State. Thus, the Treaty establishes a procedure for
authenticating official foreign documents that is consistent
with Rule 902(3) of the Federal Rules of Evidence and Rule 44,
Federal Rules of Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons located in its territory to travel
to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6 if requested by the person whose appearance is
sought.
Paragraph 1 provides that the witness shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the witness is to appear in the United States,
a nominal witness fee would also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while he is in
the Requesting State. Most U.S. mutual legal assistance
treaties anticipate that the Central Authority will determine
whether to extend such safe conduct, but under the Treaty with
Grenada, the Central Authority merely reports whether safe
conduct has been extended. This is because in Grenada only the
Director of Public Prosecutions can extend such safe conduct,
and the Attorney General (who is Central Authority for Grenada
under Article 3 of the Treaty) cannot do so. The ``safe
conduct'' is limited to acts or convictions that preceded the
witness's departure from the Requested State. It is understand
that this provision would not prevent the prosecution of a
person for perjury or any other crime committed while in the
Requesting State.
Paragraph 3 states that the ``safe conduct'' extended
pursuant to this article expires seven days after the Central
Authority of the Requesting State has notified the Central
Authority of the Requested State that the person's presence is
no longer required, or when the person leaves the territory of
the Requesting Party and thereafter returns to it voluntarily.
However, the competent authorities of the Requested State may
extend the safe conduct up to fifteen days if it determines
that there is good cause to do so. For the United States, the
``competent authority'' for these purposes would be the Central
Authority; for Grenada, the Director of Public Prosecutions
would be the appropriate competent authority.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \19\
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\19\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \20\ which in turn
is based on Article 11 of the European Convention on Mutual
Assistance in Criminal Matters. \21\
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\20\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
10, art. 26.
\21\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State
for that purpose if the person consents and if the Central
Authorities of both States agree. This would also cover
situations in which a person in custody in the United States on
a criminal matter has sought permission to travel to another
country to be present at a deposition being taken there in
connection with the case. \22\
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\22\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain the person in custody throughout the person's
stay there, unless the sending State specifically authorizes
release. This paragraph also authorizes the receiving State to
return the person in custody to the sending State, and provides
that this return will occur in accordance with terms and
conditions agreed upon by the Central Authorities. The initial
transfer of a prisoner under this article requires the consent
of the person involved and of both Central Authorities, but the
provision does not require that the person consent to be
returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Article 11(3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
3(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
extent of such efforts will vary, of course, depending on the
quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. Identical
provisions appear in several U.S. mutual legal assistance
treaties.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Grenada to follow a specified
procedure for service) or by the United States Marshal's
Service in instances in which personal service is requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \23\ This article
creates a formal framework for handling such requests.
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\23\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984). The courts of
other states in the eastern Caribbean have the power to execute
requests for such searches, too. See, e.g., Section 21, Grenada Mutual
Assistance Act 1992; Section 22, Dominica Mutual Assistance Act 1990.
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The article requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Grenada will have to be supported by a
showing of probable cause for the search. A United States
request to Grenada would have to satisfy the corresponding
evidentiary standard there, which is ``a reasonable basis to
believe'' that the specified premises contains articles likely
to be evidence of the commission of an offense.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced pursuant
to this article. As in Articles 8(5) and 9(3), the injunction
that the certificates be admissible without additional
authentication at trial leaves the trier of fact free to bar
use of the evidence itself, in spite of the certificate, if
there is some other reason to do so aside from authenticity or
chain of custody.
Paragraph 3 states that the Requested state may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be
transferred. This article is similar to provisions in many
other United States mutual legal assistance treaties. \24\
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\24\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 4; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 17;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 14; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.- Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.- Panama
Mutual Legal Assistance Treaty, Apr. 11, 1991; U.S.- Philippines Mutual
Legal Assistance Treaty, supra note 4; U.S.-Spain Mutual Legal
Assistance Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal
Assistance Treaty, Jan. 6, 1994.
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Article 15--Return of Items
This procedural article provides that any documents or
items of evidence furnished under the Treaty must be returned
to the Requested State as soon as possible. The delegations
understood that the requirement would be invoked only if the
Central Authority of the Requested State specifically requests
it at the time that the items are delivered to the Requesting
State. It is anticipated that unless original records or
articles of significant intrinsic value are involved, the
Requested State will not usually request return of the items,
but this is a matter best left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Grenada in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
Article 16 is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. The first
paragraph authorizes the Central Authority of one State to
notify the other of the existence in the latter's territory of
proceeds or instrumentalities of offenses that may be
forfeitable or otherwise subject to seizure. The term
``proceeds or instrumentalities'' was intended to include
things such as money, vessels, or other valuables either used
in the crime or purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Grenada, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \25\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the U.S.
since these offenses are predicate offenses under U.S. money
laundering laws. \26\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
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\25\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\26\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B) allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada, and there is a growing trend among
nations toward enacting legislation of this kind in the battle
against narcotics trafficking. \27\ The United States
delegation expects that Article 16 of the Treaty will enable
this legislation to be even more effective.
---------------------------------------------------------------------------
\27\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\28\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party at the former's discretion and to the extent
permitted by their respective laws.
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\28\ See Title 18, United States Code, Section 981(i)(1).
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Article 17--Compatibility with Other Arrangements
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Grenada law on letters rogatory completely undisturbed, and
would not alter any pre-existing agreements concerning
investigative assistance. \29\
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\29\ E.g., the U.S.-Grenada Agreement for the Exchange of
Information With Respect to Taxes, signed at Washington December 18,
1986, entered into force July 13, 1987 (TIAS 11410).
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Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which Treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \30\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
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\30\ See e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 4, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 14, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 24, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 4, art. 18. Article 19--
Ratification, Entry Into Force, and Termination
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Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification.
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented pursuant to it after it enters into force,
even if the relevant acts or omissions occurred before the date
on which the Treaty entered into force. Provisions of this kind
are common in law enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of The Agreement Between The Government of the
United States of America and the Government of Hong Kong on Mutual
Legal Assistance in Criminal Matters
On April 15, 1997, representatives of the Governments of
the United States and Hong Kong signed the Agreement on Mutual
Legal Assistance in Criminal Matters (``the Agreement''). \1\
In recent years, the United States has entered into similar
treaties with many other 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.
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\1\ Although styled an Agreement, for purposes of U.S. law the
instrument will be considered a treaty and is therefore being submitted
to the Senate for advice and consent to ratification.
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Hong Kong reverted to the sovereignty of the People's
Republic of China (PRC) on July 1, 1997, and is now known as
the Hong Kong Special Administrative Region (HKSAR). \2\ At the
time this Mutual Legal Assistance Agreement was negotiated and
signed, Hong Kong was a crown colony of the United Kingdom,
which granted the Hong Kong Government an entrustment
authorizing it to negotiate and enact this Agreement directly
with the United States. In order to ensure that the Agreement
would remain in force after 1997, a draft text of the Agreement
was presented to the Joint Liaison Group (JLG), which is
composed of representatives of both the British and Chinese
Governments, and meets periodically to discuss issues related
to the status of post-1997 Hong Kong. The JLG approved the
commencement of negotiations, and the final text was approved
by the JLG prior to signing. Thus, the PRC agreed, through the
JLG, to permit Hong Kong to negotiate this Agreement, approved
its final terms, and has indicated that it will continue beyond
1997. In addition, the Government of the PRC has provided the
U.S. Government with a diplomatic note confirming that
intention.
---------------------------------------------------------------------------
\2\ For convenience, the HKSAR will be referred to herein as Hong
Kong.
---------------------------------------------------------------------------
The Agreement was negotiated in three rounds, over the
course of approximately one year. It is the fourth such
agreement the United States has signed with a country or
jurisdiction in Asia, and is a major advance for the United
States in its efforts to combat transnational organized crime,
terrorism, drug trafficking and other offenses. \3\ The
Agreement is also important for Hong Kong, as it reflects a
formal commitment by the United States to assist in high
priority investigations of financial crimes and other illicit
activity.
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\3\ The U.S. also has Mutual Legal Assistance Treaties in force
with Thailand, the Philippines and South Korea.
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It is anticipated that the Agreement will be implemented in
the United States pursuant to the procedural framework provided
by Title 28, United States Code, Section 1782. No new
implementing legislation will be needed. Hong Kong has enacted
its own internal implementing legislation that will apply to
requests under the Agreements.
The following technical analysis of the Agreement was
prepared by the United States delegation that conducted the
negotiations.
Article 1--Scope of Assistance
This article provides for assistance ``in connection with
the investigation, prosecution, and prevention of criminal
offences, and in proceedings related to criminal matters.''
The negotiators specifically agreed that the term
``investigation'' includes grand jury proceedings in the United
States and similar pre-charge proceedings in Hong Kong, as well
as administrative criminal investigations and other legal
measures taken prior to the filing of formal charges in either
Party. \4\ The term ``proceedings'' was intended to cover the
full range of proceedings in a criminal case, including such
matters as bail and sentencing hearings. \5\ It was also agreed
that since the phrase ``proceedings related to criminal
matters'' is broader than the investigation, prosecution or
sentencing process itself, proceedings covered by the Agreement
need not be strictly criminal in nature. For instance,
proceedings to forfeit to the government the proceeds of
illegal drug trafficking may be civil in nature; \6\ such
proceedings are covered by the Agreement.
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\4\ The requirement that assistance be provided under the Agreement
at the pre-indictment stage is critical to the United States, as our
investigators and prosecutors often need to obtain evidence from
foreign countries in order to determine whether to file criminal
charges. This obligation is a reciprocal one, and the United States
must assist Hong Kong under the Agreement in connection with
investigations prior to the filing of charges in Hong Kong.
\5\ One United States court has interpreted Title 28, United States
Code, Section 1782 as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. See In re Letters Rogatory Issued by Director of Inspection of
Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal,
620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary obstacle to
the execution of requests concerning matters at the investigatory stage
and those matters customarily handled by administrative officials in
the Requesting Party. Since this paragraph specifically permits
requests to be made in connection with matters not within the
jurisdiction of an adjudicatory ``tribunal'' in the Requesting Party,
this paragraph accords courts broader authority to execute requests
than does Title 28, United States Code, Section 1782, as interpreted in
the India and Fonseca cases.
\6\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
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Paragraph 2 sets forth a list of the major types of
assistance specifically considered by the negotiators. Most of
the items listed in paragraph 2 are described in further detail
in subsequent articles. The list is not intended to be
exhaustive, a fact that is signalled by the word ``include'' in
the opening clause of the paragraph and is reinforced by the
final subparagraph.
Paragraph 3 mandates that assistance shall not be refused
with respect to ``criminal offences related to taxation,
customs duties, foreign exchange control, or other revenue
matters,'' but assistance shall not be provided with respect to
non-criminal proceedings related to such offenses.
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \7\ that states that the
Agreement is intended solely for government-to-government
mutual legal assistance. The Agreement is not intended to
provide to private persons a means of evidence-gathering, or to
extend generally to civil matters. Private litigants in the
United States may continue to obtain evidence from Hong Kong by
letters rogatory, an avenue of international assistance that
the Agreement leaves undisturbed. Similarly, this paragraph
provides that the Agreement is not intended to create any right
in a private person to exclude or suppress evidence provided
pursuant to the Agreement.
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\7\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984).
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Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of requests
made under the Agreement. The Central Authority for the United
States makes all requests to Hong Kong on behalf of federal
agencies, state agencies, and local law enforcement authorities
in the United States. The Hong Kong Central Authority makes all
requests initiated by officials in Hong Kong.
The Central Authority for the Requesting Party exercises
discretion as to the form and content of requests, and the
number and priority of requests. The Central Authority for the
Requested Party is responsible for receiving each request,
transmitting it to the appropriate federal or state agency,
court, or other authority for execution, and ensuring that a
timely response is made.
Paragraph 2 provides that the Attorney General or a person
authorized by the Attorney General acts as the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \8\
Paragraph 2 also states that the Attorney General of Hong Kong
or a person authorized by the Attorney General serves as the
Central Authority for Hong Kong.
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\8\ 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. 81, 44 Fed. Reg. 18,661 (1979), as amended at 45 Fed.
Reg. 79,758 (1980); 48 Fed. Reg. 54,595 (1983). That delegation
subsequently was extended to the Deputy Directors of the Office of
International Affairs. 59 Fed. Reg. 42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate with one another directly. It is anticipated that
such communication will be accomplished by telephone, telefax
or by any other means acceptable to the Central Authorities
themselves.
Article 3--Limitations on Providing Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Agreement.
Article 3 sets forth the circumstances under which the
Requested Party may deny assistance under the Agreement. A
request shall be denied if it impairs the sovereignty,
security, or public order of the United States or the PRC; or
if the Central Authority is of the opinion that granting the
request would impair the Requested Party's essential interests,
\9\ or that the request for assistance relates to a political
offense \10\ or there are substantial grounds for believing the
request was made for the purpose of prosecuting, punishing, or
otherwise proceeding against a person on account of the
person's race, religion, nationality, or political opinions.
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\9\ The Department of Justice, in its role as Central Authority for
the United States, would work closely with the Department of State and
other government agencies to determine whether to execute a request
which might fall in this category. A fundamental purpose of the
Agreement is to enhance law enforcement cooperation, and that interest
would be hampered if sensitive law enforcement information available
under the Agreement were to fall into the wrong hands. Therefore, the
United States Central Authority would decline to provide sensitive or
confidential drug related information pursuant to a request under the
Agreement whenever it determines, after appropriate consultation with
law enforcement, intelligence, and foreign policy agencies, that a
senior foreign government official who will have access to the
information is engaged in or facilitates the production or distribution
of illegal drugs. This is consistent with the sense of the Senate as
expressed in its advice and consent to ratification of the other mutual
legal assistance treaties. See, e.g., Cong Rec 13884, October 24, 1989.
See also Mutual Legal Assistance Treaty Concerning the Cayman Islands:
Report by the Committee on Foreign Relations, 100th Cong., 2nd Sess. 67
(1988) (Testimony of Deputy Assistant Attorney General Mark M Richard).
\10\ Similar restrictions are found in other mutual legal
assistance treaties.
---------------------------------------------------------------------------
The Central Authority will also refuse assistance for
certain crimes if it determines that dual criminality does not
exist. Article 3(1)(d) provides that the Central Authority
shall refuse assistance if it is of the opinion that the acts
or omissions alleged would not have constituted a criminal
offense if they had taken place within the jurisdiction of the
Requested Party, or would not constitute in the Requesting
Party any of the offenses described in the Annex to the
Agreement. The Annex to the Agreement describes a number of
major offenses for which assistance must be provided without
regard to whether the offense would constitute an offense under
the laws of the Requested Party.
Finally, the Central Authority is permitted to deny
assistance if the request relates to an offense under military
law that would not be an offense under ordinary criminal law;
the request relates to the prosecution of a person for a
criminal offense for which the person has been convicted or
acquitted in the Requested Party; or the request is not made in
conformity with the Agreement.
Before denying assistance under Article 3, the Central
Authority of the Requested Party is required to consult with
its counterpart in the Requesting Party to consider whether
assistance can be given subject to such conditions as it deems
necessary. If the Requesting Party accepts assistance subject
to conditions, it shall comply with the conditions. If the
Central Authority of the Requested Party denies assistance, it
shall inform the Central Authority of the Requesting Party of
the reasons for the denial.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested Party may accept an
oral request in ``urgent cases.'' A request in such a situation
must be confirmed in writing promptly.
Paragraph 2 provides that the request and all supporting
documents accompanying the request shall be submitted in an
official language of the Requested Party. \11\
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\11\ Hong Kong has two official languages, English and Chinese.
---------------------------------------------------------------------------
Paragraph 3 lists information deemed crucial to the
efficient operation of the Agreement which must be included in
each request. Paragraph 4 outlines the types of information
that are important but not always crucial, and should be
provided ``to the extent necessary and possible.'' In keeping
with the intention of the Parties that requests be as simple
and straightforward as possible, there is no requirement under
the Agreement that a request be legalized or certified in any
particular manner.
Article 5--Execution of Requests
Paragraph 1 requires that the Central Authority of the
Requested Party execute a request or arrange for its execution.
The Agreement contemplates that upon receiving a request, the
Central Authority will first review the request, then promptly
notify the Central Authority of the Requesting Party if the
request does not appear to comply with the Agreement's terms.
If the request does satisfy the Agreement's requirements and
the assistance sought can be provided by the Central Authority
itself, the request will be fulfilled forthwith. If the request
meets the Agreement's requirements but its execution requires
action by some other entity in the Requested Party, the Central
Authority will promptly transmit the request to the correct
entity for execution. When the United States is the Requested
Party, it is anticipated that the Central Authority will
transmit most requests for execution to the federal
investigators, prosecutors, or judicial officials it deems
appropriate to fulfill the request.
Paragraph 2 requires the competent authorities responsible
for executing the request to use their ``best efforts.'' This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Hong Kong. Rather, it is
anticipated that when a request from Hong Kong requires
compulsory process for execution, the Department of Justice
will ask a federal court to issue the necessary process under
Title 28, United States Code, Section 1782, and the provisions
of the Agreement. This paragraph specifically authorizes courts
of the Requested Party to use their powers to issue subpoenas,
search warrants, or other orders to satisfy requests under the
Agreement.
Paragraph 3 provides that all requests shall be executed as
empowered by the Agreement or by the laws of the Requested
Party. Thus, the method of executing a request for assistance
under the Agreement must be in accordance with the Requested
Party's internal laws or specific procedures in the Agreement
itself. For the United States, the Agreement is intended to be
self-executing; no new or additional legislation will be needed
to carry out the obligations undertaken.
Paragraph 4 states that a request for assistance need not
be executed immediately when execution will interfere with an
ongoing criminal investigation, prosecution or proceeding in
the Requested Party. Rather, the Central Authority of the
Requested Party may postpone execution or make execution
subject to certain conditions. The Requested Party must comply
with the conditions if it accepts assistance subject to these
conditions.
Paragraph 5 requires the Requested Party promptly to inform
the Requesting Party of circumstances likely to result in a
significant delay in responding to the request.
It is anticipated that some United States requests for
assistance may contain information that under our law must be
kept confidential, for example, information that is ordinarily
protected by Rule 6(e), Federal Rules of Criminal Procedure.
Therefore, paragraph 6 enables the Requesting Party to call
upon the Requested Party to keep the information in the request
confidential. \12\ If the Requested Party cannot execute the
request without disclosing the information in question (as may
be the case if execution requires a public judicial proceeding
in the Requested Party), or if for some other reason this
confidentiality cannot be assured, the Agreement obliges the
Requested Party to so indicate, thereby giving the Requesting
Party an opportunity to withdraw the request rather than risk
jeopardizing its investigation or proceeding by public
disclosure of the information.
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\12\ This provision is similar to language in other United States
mutual legal assistance treaties. See, e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9. 1987, Art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; U.S.-Italy Mutual Legal Assistance
Treaty, Nov. 9, 1982, Art. 8(2); U.S.-Philippines Mutual Legal
Assistance Treaty, Nov. 13, 1994, Art. 5(5).
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Paragraph 7 requires the Central Authority of the Requested
Party to respond to reasonable inquiries by the Requesting
Party concerning progress toward execution of its requests.
This is intended to encourage open communication between the
Central Authorities in monitoring the status of specific
requests.
Paragraph 8 provides that the Central Authority of the
Requested Party must promptly notify the Central Authority of
the Requesting Party of the outcome of the execution of a
request. If the request is denied in whole or in part, the
Central Authority of the Requested Party must explain the
reasons for the outcome to the Central Authority of the
Requesting Party. For example, if the evidence sought cannot be
located, or if a witness to be interviewed invokes a privilege
under article 9(5), the Central Authority of the Requested
Party must report this to the Central Authority of the
Requesting Party.
Article 6--Representation and Expenses
This article reflects the increasingly accepted
international rule that each Party shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This article is consistent with similar
provisions in other United States mutual legal assistance
treaties. \13\
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\13\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar.
18, 1985, Art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, Nov.
13, 1994, Art. 6.
---------------------------------------------------------------------------
In paragraph 1, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested Party shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting Party. Since the cost of retaining
counsel abroad to present and process letters rogatory is
expensive at times, this provision for reciprocal legal
representation is a significant improvement in international
legal cooperation.
Paragraph 2 does oblige the Requesting Party to pay fees of
retained counsel; expert witnesses; translation,
interpretation, and transcription costs; and allowances and
expenses related to travel of persons pursuant to Articles 11
and 12.
Paragraph 3 requires consultations between the Parties
should it become evident during the course of executing the
request that ``expenses of an extraordinary nature'' would be
necessary to provide the assistance.
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested Party may require that information or evidence
provided under the Agreement not be used in any investigation,
prosecution or proceeding other than that stated in the request
without the prior consent of the Requested Party. In such
cases, the Requesting Party must comply with the requirements.
It will be recalled that Article 4(3)(d) states that the
Requesting Party must specify the reason why information or
evidence is sought.
It is not anticipated that the Central Authority of the
Requested Party will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the use of the evidence. Indeed, it was agreed that
neither Party would object to stating in the request that
subsequent civil use is contemplated for information or
evidence provided pursuant to the purposes stated in Article 1.
In such a case, no prior consent of the Central Authority of
the Requested Party would be required under Article 7 (1).
Paragraph 2 permits the Requested Party to request that
information or evidence provided to the Requesting Party be
kept confidential or be used only subject to terms and
conditions it specifies. Under most United States mutual legal
assistance treaties, conditions of confidentiality are imposed
only when necessary and are tailored to fit the circumstances
of each particular case. For instance, the Requested Party may
wish to cooperate with the investigation in the Requesting
Party but choose to limit access to information that might
endanger the safety of an informant, or unduly prejudice the
interests of persons not connected in any way with the matter
being investigated in the Requesting Party. Paragraph 2
requires that if conditions of confidentiality are imposed, the
Requesting Party must comply with them.
Paragraph 3 provides that nothing in this article shall
preclude the use or disclosure of information in a criminal
prosecution to the extent that there is an obligation to do so
under the U.S. Constitution or Hong Kong law. This provision
was included because if the United States government receives
evidence under the Agreement that appears to be exculpatory to
a defendant in a criminal case, the government is obliged to
share the evidence with the defendant. \14\ Advance notice of
any such proposed use or disclosure must be provided by the
Requesting Party to the Requested Party. The Hong Kong
delegation asked whether information it might supply in
response to a request by the United States under the Agreement
could be disclosed under the Freedom of Information Act. The
delegations agreed that paragraph 3, as drafted, does not
authorize disclosure under the Freedom of Information Act of
information provided under the Agreement.
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\14\ See Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
Paragraph 4 states that once evidence obtained under the
Agreement is revealed to the public in accordance with
paragraphs 1 or 2, the Requesting Party is authorized to use
the evidence for any purpose. Once evidence obtained under the
Agreement is revealed to the public in a trial, that
information effectively becomes part of the public domain. The
information is likely to become a matter of common knowledge,
perhaps even being cited or described in the press. Once that
occurs, it is practically impossible for the Central Authority
of the Requesting Party to block the use of that information by
third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Parties, and the invocation and enforcement of these provisions
are left entirely to the Parties. If a private person believes
that a Hong Kong authority seeks to use information or evidence
obtained from the United States in a manner inconsistent with
this article, the person can inform the Central Authority of
the United States of the allegations for consideration as a
matter between the Parties.
Article 8--Statements of Persons
This article provides that, upon receipt of a request for a
statement of a person for use in an investigation, prosecution
or proceeding related to a criminal matter, the Requested Party
must attempt to obtain the statement with the consent of the
person.
This article further illustrates the Parties' intention to
provide assistance to one another on a broad basis, as
indicated in Article 1(2)(a).
Article 9--Taking of Evidence or Testimony in the Requested Party
Paragraph 1 provides that a person in the Requested Party
from whom evidence is sought shall be compelled, if necessary,
to appear and give evidence. The compulsion contemplated by
this article can be accomplished by subpoena or any other means
available under the law of the Requested Party.
Paragraph 2 sets forth that the giving or taking of
evidence includes testimony and the production of documents,
records, or items. This paragraph illustrates one of the
advantages of a mutual legal assistance agreement over letters
rogatory. For the first time, there is clear legal authority
for the Parties to assist each other in gathering physical
evidence. In the past, Hong Kong law provided only for
assistance in obtaining testimony or documentary evidence.
Paragraph 3 requires that, upon request, the Requested
Party must furnish information in advance about the date and
place of the taking of evidence.
Paragraph 4 provides that any persons specified in the
request shall be permitted to be present during the execution
of the request and, to the extent allowed by the Requested
Party's laws, to pose questions to the person giving the
testimony or evidence. These persons would include the
defendant and defense counsel in a criminal case. The Hong Kong
delegation indicated that the presence of these persons is
provided for in Hong Kong law. It is understood that in the
event that direct questioning of a witness is not possible, the
defendant and defense counsel may submit questions for the
judge to pose to the person whose testimony or evidence is
being taken.
Paragraph 5, when read in conjunction with article 5(3),
ensures that no person will be compelled to furnish information
if the person has a right not to do so under the law of the
Requested Party. Thus, a witness questioned in the United
States pursuant to a request from Hong Kong is guaranteed the
right to invoke any of the testimonial privileges (e.g.,
attorney-client, interspousal) available in the United States,
as well as the constitutional privilege against self-
incrimination, to the extent that it applies in the context of
evidence being taken for foreign proceedings. \15\ A witness
testifying in Hong Kong may raise any of the similar privileges
available under Hong Kong law.
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\15\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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If a witness attempts to assert a privilege that is unique
to the Requesting Party, this paragraph does require that the
Requested Party take the desired evidence and turn it over to
the Requesting Party along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting Party, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are better understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \16\
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\16\ See, e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, Art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, Art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, Dec. 9, 1987, Art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, Nov. 13, 1994,
Art. 8(4).
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Paragraph 6 states that documents, records, and any other
items produced pursuant to this article or that are the subject
of testimony taken under this article may be certified in
accordance with procedures specified in the request. (See Form
A attached to the exchange of letters dated April 15, 1997 and
made part of this Agreement for use when the U.S. is the
Requesting Party.) If certified in accordance with such
procedures, they shall be admissible in courts of the Requested
Party as proof of the truth of the matters set forth therein.
However, it remains the responsibility of the judicial
authority presiding at the trial to determine whether the
evidence should in fact be admitted. The negotiators intended
that evidentiary tests other than authentication (such as
relevance or materiality) still must be satisfied in each case.
Article 10--Publicly Available and Official Documents
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records of government agencies.
The term ``government departments and agencies'' includes all
executive, judicial, and legislative units of the federal,
state, and local levels in both Parties.
Paragraph 2 gives each Party the discretion to furnish to
the other copies of materials in its possession, which 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 Party. This requirement is important because some
United States statutes limit disclosure of government
information to specific United States law enforcement
authorities for specific purposes. The intent of the
negotiators is to broaden statutorily limited access to include
foreign authorities entitled to assistance under this
Agreement. For example, the negotiators agreed that this
Agreement is a ``convention'' under Title 26, United States
Code, Section 6103 (k) (4), pursuant to which the United States
may exchange tax information with treaty partners. Thus, the
Internal Revenue Service may provide tax returns and return
information to Hong Kong through this Agreement when, in a
criminal investigation or prosecution, the Hong Kong authority
on whose behalf the request is made can meet the same
conditions required of United States law enforcement
authorities under Title 26, United States Code, Sections 6103
(h) and (i). Of course, if no law enforcement authorities are
entitled under any condition to gain access to a particular
non-public record, the treaty partner cannot expect to gain
access to it under the Agreement.
The discretionary nature of this provision was deemed
necessary because government files of a Party may contain
information available to investigative authorities in that
country that justifiably could be deemed inappropriate for
release to a foreign government. For example, assistance might
be deemed inappropriate if the information requested identifies
or endangers an informant, prejudices sources of information
needed in future investigations, or reveals information that
was given to the Requested Party in return for a promise not to
divulge it.
Paragraph 3 states that documents provided under this
article may be certified in accordance with the procedures
specified in the request, and if certified in this manner, the
evidence shall be admissible in courts in the Requesting Party
as proof of the truth of the matters set forth therein. (See
Form B attached to the exchange of letters dated April 15, 1997
and made part of this Agreement for use when the U.S. is the
Requesting Party.) Thus, the Agreement establishes a procedure
for authenticating official foreign records that is consistent
with Fed. R. Evid. 902(3) and Fed. R. Civ. P 44.
Paragraph 3, similar to Article 9(6), states that documents
certified in accordance with this paragraph shall be
``admissible,'' although the judicial authority presiding at
the trial determines whether the evidence should in fact be
admitted. Evidentiary tests other than authentication (such as
relevance and materiality) must be established in each case.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, countries are willing and able to ``lend'' witnesses
to the United States provided the witnesses will be carefully
guarded while in the United States and will be returned to the
country at the conclusion of their testimony. On occasion, the
United States Justice Department also has arranged for
consenting federal inmates in the United States to be
transported to foreign countries for testifying in criminal
proceedings. \17\
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\17\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \18\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters.
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\18\ 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.
---------------------------------------------------------------------------
There also have been situations in which a person in
custody in a United States criminal case has demanded
permission to travel to another country to be present at a
deposition being taken there in connection with the criminal
case. \19\ Paragraph 2 addresses this situation.
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\19\ See, e.g., United States v. King, 552 F.2d 833 (9th Cir. 1976)
(defendants insisted on traveling to Japan with attorneys to be present
at deposition of certain witnesses in prison).
---------------------------------------------------------------------------
Paragraph 3 provides express authority for the receiving
Party to maintain the person in custody throughout the person's
stay there, unless the sending Party specifically authorizes
release. This paragraph also requires the receiving Party to
return the person in custody to the sending Party as soon as
circumstances permit or as otherwise agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the prisoner consent to be returned to the sending Party.
Once the receiving Party agrees to assist the sending
Party's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving Party to hold the
person transferred and require extradition proceedings before
returning the person to the sending Party as agreed. Therefore,
paragraph 3(c) specifies that extradition proceedings are not
required before the status quo is restored by the return of the
person transferred. Paragraph 3(d) states that the person is to
receive credit for time served while in the custody of the
receiving Party. This is consistent with United States practice
in these matters.
Article 12--Attendance of Other Persons
This article provides that upon request, the Requested
Party shall invite witnesses who are located in its territory
to travel to the Requesting Party to appear before an
appropriate authority there. It shall notify the Requesting
Party of the invitee's response. An appearance in the
Requesting Party under this article is not mandatory; the
invitation may be refused by the prospective witness. The
Requesting Party is expected to pay the expenses of such an
appearance pursuant to Article 6. Such expenses usually will
include the costs of transportation and room and board.
Article 13--Safe Conduct
This article, like Article 27 of the United States-
Switzerland Treaty, provides that a person who is in the
Requesting Party for testifying or for confrontation purposes
pursuant to a request under Articles 11 or 12 shall be immune
from criminal prosecution, punishment or any restriction on
personal liberty, or service of process in a civil suit while
present in the Requesting Party. This ``safe conduct'' is
limited to events arising from acts or convictions that
preceded the person's departure from the Requested Party. These
assurances do not alter the Requesting Party's obligation,
pursuant to Article 11 (3), to maintain a person in custody for
those acts that resulted in the person's incarceration in the
Requested Party.
Paragraph 2 requires that the person must be advised of any
limitations placed upon safe conduct in this context.
Paragraph 3 states that for transferred persons not held in
custody in the sending Party, any safe conduct provided under
this article shall cease 15 days after the person has been
notified that his presence is no longer required in the
Requesting Party or whenever the person voluntarily reenters
the Requesting Party after leaving it.
Paragraph 4 provides that a person who consents to provide
evidence pursuant to Article 11 or 12 shall not be subject to
prosecution based on the person's testimony, except for
perjury.
Paragraph 5 states that the person cannot be required to
provide assistance unrelated to the request.
Paragraph 6 protects the person who refuses to consent to
provide assistance under Article 11 or 12 from any penalty or
coercive measure by the courts of either Party.
Article 14--Location or Identity of Persons or Items
This article provides for determining the whereabouts in
the Requested Party of persons (such as witnesses, potential
defendants, or experts) or items at the request of the
Requesting Party. This is a standard provision contained in all
United States mutual legal assistance treaties. The Agreement
requires only that the Requested Party ``endeavor to
ascertain'' the location or identity of the persons or items
sought by the Requesting Party. The extent of such efforts will
vary, of course, depending on the quality and extent of the
information provided by the Requesting Party concerning the
suspected location and last known location.
The Parties intended that the obligation to locate persons
or items be limited to persons or items that are or may be in
the territory of the Requested Party. Thus, the United States
is not obligated to attempt to locate persons or items that may
be in third countries. In all cases, the Requesting Party is
expected to supply all available information about the last
known location of the persons or items sought.
Article 15--Service of Documents
This article creates an obligation for the Requested Party
to ``use its best efforts'' to effect the service of summonses,
complaints, subpoenas, or other legal documents at the request
of the Requesting Party.
Paragraph 2 provides that when the documents to be served
call for the response or appearance of a person in the
Requesting Party, the documents should be transmitted by the
Requesting Party within a reasonable time before the response
or appearance date. Thus, if the United States were to ask Hong
Kong to serve a subpoena issued pursuant to Title 28, United
States Code, Section 1783 on a United States citizen located in
Hong Kong, the request would have to be submitted well in
advance of the hearing or trial at which the citizen is
expected to appear. This is to allow sufficient time for
service to be effected and for the person to make arrangements
for the appearance.
Paragraph 3 permits the Requested Party to effect service
by mail or, upon request by the Requesting Party, by other
methods not prohibited under the law of the Requested Party. It
is expected that when the United States is the Requested Party,
service under the Agreement will be made by registered mail (in
the absence of any request by Hong Kong to follow a specified
procedure for service), or by the United States Marshals
Service in instances when personal service is requested.
Paragraph 4 requires that proof of service be returned to
the Requesting Party.
Paragraph 5 protects persons who fail to comply with
process served under the Agreement from any penalty or coercive
measure under the law of the Requesting Party. The Hong Kong
delegation insisted on this rule, which does not appear in most
United States mutual assistance agreements. The United States
delegation was concerned that this provision might have an
adverse impact on U.S. law enforcement, because under Title 28,
United States Code, Section 1783, U.S. courts issue subpoenas
for service abroad on U.S. nationals and permanent residents
located in another country. If the United States asked Hong
Kong to serve such a subpoena on a U.S. national in Hong Kong,
the subpoena would be rendered valueless if the United States
court could not punish the recipient if he or she ignored it.
For this reason, the second sentence of Paragraph 5 states that
it does not apply if the United States is the Requesting Party
and the person served is a national or permanent resident of
the United States.
Article 16--Search and Seizure
It is sometimes in the interests of justice for one country
to ask another country to search for, secure, and deliver
articles or objects needed as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \20\ This article
creates a formal framework for handling such requests.
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\20\ See, e.g., Lancaster Factoring Company Limited v. Magnone, 90
F.3d 38, 41 (2d Cir. 1996).
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Article 16 requires that a search and seizure request
include ``information justifying such action under the law of
the Requested Party.'' This means that a request to the United
States from Hong Kong must be supported by a showing of
probable cause for the search. A United States request to Hong
Kong has to satisfy the corresponding evidentiary standard
there. It is contemplated that such requests are to be carried
out in strict accordance with the laws of the Requested Party.
Paragraph 2 states that the Requested Party must provide
information required by the Requesting Party concerning the
circumstances of the search and seizure and the subsequent
chain of custody of any item seized.
Paragraph 3 is designed to ensure that records are kept of
articles seized and/or delivered under the Agreement. This
provision effectively requires that the Requested Party record
detailed and reliable information regarding the condition of an
article at the time of seizure and the chain of custody between
seizure and delivery to the Requesting Party.
This paragraph also provides that the certificates
describing continuity of custody will be admissible without
additional authentication at trial in the Requesting Party,
thus relieving the Requesting Party of the burden, expense, and
inconvenience of having to transport the Requested Party's law
enforcement officers to the Requesting Party to provide
testimony regarding authentication and chain of custody each
time the Requesting Party uses evidence produced pursuant to
this article. (See Form C attached to the exchange of letters
dated April 15, 1997 and made part of this Agreement for use
when the U.S. is the Requesting Party.) As in Articles 9(6) and
10(3), the provision that the certificates are admissible
without additional authentication at trial leaves the trier of
fact free to bar use of the evidence itself, in spite of the
certificate, if some other reason exists to do so aside from
authenticity or chain of custody.
Paragraph 4 requires the Requesting Party to observe any
terms and conditions imposed by the Requested Party on the
delivery of the seized property. Conditions may be imposed to
protect the interests of third parties in the item to be
transferred. This article is similar to provisions in many
United States extradition treaties. \21\
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\21\ See, e.g., U.S.-United Kingdom Extradition Treaty, June 8,
1972, Art. 13, 28 U.S.T. 227, T.I.A.S. No. 8468, 1049 U.N.T.S. 167;
U.S.-Canada Extradition Treaty, Dec. 3, 1971, Art. 15, 27 U.S.T. 983,
T.I.A.S. No. 8237; U.S.-Japan Extradition Treaty, Mar. 3, 1978, Art.
13, 31 U.S.T. 892, T.I.A.S. No. 9625, 1203 U.N.T.S. 225; U.S.-Mexico
Extradition Treaty, May 4, 1978, Art. 19, 31 U.S.T. 5059, T.I.A.S. No.
9656.
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Article 17--Return of Items
This article provides that any documents, records, or items
of evidence furnished under the Agreement must be returned to
the Requested Party as soon as possible upon request by the
Central Authority of the Requested Party. It is anticipated
that unless original documents or articles of significant
intrinsic value are involved, the Requested Party usually will
not request return of the items, but this is a matter better
left to development of practice.
Article 18--Confiscation and Forfeiture
A major goal of the Agreement is to enhance the efforts of
both Parties in combatting narcotics trafficking. One
significant strategy in this effort under U.S. practice is
action by United States authorities to seize and confiscate
money, property, and other proceeds of drug trafficking.
This article replaces the U.S.-Hong Kong Agreement
Concerning the Confiscation and Forfeiture of the Proceeds and
Instrumentalities of Drug Trafficking, signed at Hong Kong
November 23, 1990, which expired when Hong Kong reverted to the
sovereignty of the People's Republic of China. \22\ It also
expands the scope of assistance available in forfeiture-related
matters. It is similar to Article 16 of the United States-
Philippines Mutual Legal Assistance Treaty and Article 15 of
the United States-Thailand Mutual Legal Assistance Treaty.
Paragraph 1 requires the Requested Party, upon request, to
endeavor to ascertain and to notify the Requesting Party of the
existence in the former's territory of any proceeds or
instrumentalities of offenses against the laws of the
Requesting Party that may be forfeitable or otherwise subject
to seizure. The terms ``proceeds or instrumentalities'' are
intended to include things such as money, vessels, or other
valuables either used in the crime or purchased or obtained as
a result of the crime.
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\22\ At present, the HKSAR provides assistance to the U.S. in
matters related to freezing and forfeiting drug proceeds pursuant to a
domestic law known as the Drug Trafficking (Recovery of Proceeds)
Ordinance.
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Upon receipt of notice under this article, the Central
Authority of the Party in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Hong Kong, they may be seized in aid of
a prosecution under Title 18, United States Code, Section 2314,
or may be subject to a temporary restraining order in
anticipation of a civil action for the return of the assets to
the lawful owner.
If the assets are the proceeds of drug trafficking, Title
18, United States Code, Section 981(a)(1)(B) would allow for
forfeiture to the United States of property which represents
the proceeds of serious foreign drug offenses in Hong Kong. The
HKSAR, like Switzerland and Canada, has similar laws that
reflect a growing trend among countries toward enacting
legislation of this kind in the battle against narcotics
trafficking. \23\ The United States delegation expects that
Article 18 will permit more effective use of U.S. forfeiture
statutes.
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\23\ For example, Article 3 of the United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
calls for the signatory nations to enact broad legislation to forfeit
illicit drug proceeds and to assist one another in such matters. United
Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, with annex and final act. Done at Vienna
December 20, 1988; entered into force November 11, 1990.
---------------------------------------------------------------------------
Paragraph 2 provides that the Requested Party shall take
measures to the extent permitted by its laws to immobilize the
assets temporarily, pending a final court determination in the
Requesting Party. Thus, if the law of the Requested Party
enables it to seize assets in aid of a proceeding in the
Requesting Party or to enforce a judgment of forfeiture levied
in the Requesting Party, the Agreement provides that the
Requested Party shall do so. The language of the article is
carefully selected, however, so as not to require either Party
to take any action that exceeds its internal legal authority.
It does not mandate institution of forfeiture proceedings or
initiation of temporary immobilization in either Party against
property identified by the other if the relevant prosecution
authorities do not deem it proper to do so.
Paragraph 3 states that ``appropriate'' means are to be
employed in providing assistance in the confiscation or
forfeiture of assets. Such means may include the enforcement of
an order issued by a court in the Requesting Party or the
initiation of proceedings in the Requested Party. Paragraph 4
obligates the Requested Party to notify the Requesting Party of
any action taken pursuant to this article.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in the law enforcement
activity that led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country and be approved by the Secretary of State.
Paragraph 5 is consistent with this framework and will enable a
Party having custody over proceeds or instrumentalities of
offenses to transfer forfeited assets, or the proceeds of the
sale of such assets, to the other Party, at the former's
discretion and to the extent permitted by its laws.
Article 19--Certification and Authentication
This article provides for the certification or
authentication by consular or diplomatic officers, upon request
by the Requesting Party, of documents, records or other
evidence transmitted to the Requesting Party pursuant to this
Agreement.
Article 20--Other Assistance
This article establishes that assistance provided for under
this Agreement shall not preclude the provision of assistance
between the Parties that is available pursuant to any other
applicable agreements. Article 20 also states that the
Agreement shall not be deemed to prevent recourse to any
assistance available under the internal laws of either Party,
or pursuant to other arrangements or practices between them.
Thus, the Agreement leaves undisturbed provisions of United
States and Hong Kong law that deal with letters rogatory and
does not alter any pre-existing agreements concerning
investigative assistance.
Article 21--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
practical ways to make the treaty more effective and their own
efforts more productive. This article calls upon the Parties to
share those ideas with one another and encourages them to agree
on implementation measures. Practical measures of this kind
might include methods of keeping each other informed of the
progress of matters in which assistance is provided pursuant to
the Agreement. Another example might include use of the
Agreement to obtain evidence that otherwise might be sought via
methods less acceptable to the Requested Party. Very similar
provisions are contained in recent United States mutual legal
assistance treaties. \24\
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\24\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
Nov. 13, 1994, Art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
Mar. 18, 1985, Art. 18; U.S.-Cayman Islands Mutual Legal Assistance
Treaty, July 3, 1986, Art. 18; U.S.-Argentina Mutual Legal Assistance
Treaty, Dec. 4, 1990, Art. 18.
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It is anticipated that the Central Authorities will conduct
regular consultations pursuant to this article.
Article 22--Resolution of Disputes
This article provides that any dispute as to the
interpretation, application, or implementation of the Agreement
shall be handled through diplomatic channels if the Central
Authorities fail to resolve the matter themselves.
Article 23--Entry Into Force and Termination
This article contains standard provisions on the procedures
for the Agreement's application and ratification, and the
exchange of instruments of ratification.
Paragraph 1 provides that the Agreement shall enter into
force thirty days after written notification that the
respective requirements of the Parties for its entry into force
have been satisfied.
Paragraph 2 states that the Agreement shall apply to any
request presented after it enters into force, even if the
relevant acts or omissions occurred before the date on which
the Agreement enters into force. Provisions of this kind are
common in law enforcement agreements; similar provisions are
found in most United States mutual legal assistance treaties.
Paragraph 3 contains standard treaty language setting forth
the procedure for terminating the Agreement. Termination shall
take effect three months after the date of the receipt of
written notification. Requests received prior to receipt of the
termination notice will nevertheless be processed as if the
Agreement were still in force.
Technical Analysis of the Treaty Between the United States of America
and Israel on Mutual Legal Assistance in Criminal Matters
On January 26, 1998, the United States signed a treaty with
Israel 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 expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking.
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. Israel has its
own mutual legal assistance laws in place for implementing the
Treaty. \1\
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\1\ Israel currently provides mutual legal assistance pursuant to
the Legal Assistance to Foreign States (Consolidated Version) Law,
5737-1977 (hereinafter ``Israel Mutual Assistance Law''). That law is
in the process of revision, and we have been assured that the revised
law will not adversely affect Israel's ability to implement the treaty.
---------------------------------------------------------------------------
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 provides for assistance in all matters
involving the investigation, prosecution, and prevention of
offenses, and in proceedings relating to criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Israel, and
other legal measures taken prior to the filing of formal
charges in either State. \2\ The term ``proceedings'' was
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
\3\ It was also agreed that since the phrase ``proceedings
related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
Government the proceeds of illegal drug trafficking may be
civil in nature; \4\ such proceedings are covered by the
Treaty.
---------------------------------------------------------------------------
\2\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Israel under the
Treaty in connection with investigations prior to charges being filed
in Israel. Prior to the 1996 amendments to Title 28, United States
Code, Section 1782, some U.S. courts had interpreted Section 1782, to
require that assistance be provided in criminal matters only if formal
charges have already been filed abroad, or are ``imminent,'' or ``very
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in
Granting Requests for International Judicial Assistance,'' 15 Fordham
Int'l Law J. 772 (1991). The 1996 amendment effectively overruled these
decisions, however, by amending subsec. (a) to state ``including
criminal investigation conducted before formal accusation.'' In any
event, this Treaty was intentionally written to cover criminal
investigations that have just begun as well as those that are nearly
completed; it draws no distinction between cases in which charges are
already pending, ``imminent,'' ``very likely,'' or ``very likely very
soon.'' Thus, U.S. courts should execute requests under the Treaty
without examining such factors.
\3\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This interpretation poses an
unnecessary obstacle to the execution of requests concerning matters
which are at the investigatory stage, or which are customarily handled
by administrative officials in the Requesting State. Since this
paragraph of the Treaty specifically permits requests to be made in
connection with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\ See 21 U.S.C. Section 881; 18 U.S.C. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this Article, however, makes it clear that there is no
general requirement of dual criminality under this treaty.
Thus, assistance may be provided even when the criminal matter
under investigation in the Requesting State would not be a
crime in the Requested State ``...except where otherwise
provided by this treaty,'' a phrase which refers to Article
3(1), under which the Requested State may, in its discretion,
require dual criminality for a request under Article 14
(involving searches and seizures) or Article 16 (involving
asset forfeiture matters). Article 1(3) is important because
United States and Israel criminal law differ significantly, and
a general dual criminality rule would make assistance
unavailable in many significant areas. This type of limited
dual criminality provision is found in other U.S. mutual legal
assistance treaties. \5\ During the negotiations, the United
States delegation received assurances from the Israel
delegation that assistance would be available under the Treaty
to the United States investigations of essentially all criminal
matters, including drug trafficking, terrorism, organized crime
and racketeering, money laundering, fraud, Export Control Act
violations, child exploitation or obscenity, antitrust
offenses, and crimes against the environment or endangered
species.
---------------------------------------------------------------------------
\5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
The U.S. and Israeli delegations that negotiated the Treaty
developed an exchange of Notes addressing the relationship
between this Treaty and the Convention between the United
States and Israel with Respect to Taxes on Income, signed on
November 20, 1975, with Protocols signed May 30, 1980 and
January 26, 1993, which entered into force December 30, 1994
(the ``Tax Convention''). The delegations agreed that the
Treaty will cover criminal tax cases, but, at the insistence of
Israeli authorities, it was also agreed that the assistance
would not be requested under the Treaty for any matter that
ordinarily would fall under the Tax Convention unless (1) the
request is for a form of assistance not included within the
framework of the Tax Convention or (2) the case concerned also
includes ``serious non-fiscal offenses'' as well as tax
offenses. In any event, a request for assistance under the
Treaty with regard to a fiscal offense should specify whether
assistance under the Tax Conven-tion has been previously
requested or granted. The Parties also expressed their
understanding that requests for assistance in the form of bank
records with respect to a fiscal offense will be made only in
connection with serious offenses involving willful, fraudulent
conduct. Serious offenses would include, for example, cases
involving substantial sums of money or involving a pattern of
criminal conduct. An exchange of notes detailing this under-
standing was signed on January 26, 1998, and accompanies the
Treaty.
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \6\ that states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Israel by letters
rogatory, an avenue of international assistance that the Treaty
leaves undisturbed. Similarly, the paragraph provides that the
Treaty is not intended to create any right in a private person
to obtain, suppress or exclude evidence provided pursuant to
the Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
\6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' to make and receive treaty requests. The Central
Authority of the United States would make all requests to
Israel on behalf of federal agencies, state agencies, and local
law enforcement authorities in the United States. The Israeli
Central Authority will make all requests emanating from
officials in Israel.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
also to the number and priority of requests. The Central
Authority of the Requested State is also responsible for
receiving each request, transmitting it to the appropriate
federal or state agency, court, or other authority for
execution, and ensuring that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \7\
Paragraph 2 also states that the Minister of Justice of Israel
or the person designated by the Minister of Justice will serve
as the Central Authority for Israel.
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\7\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
---------------------------------------------------------------------------
Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice its sovereignty, security, important public
policy, ordre public, or other essential interests. All United
States mutual legal assistance treaties contain provisions
allowing the Requested State to decline to execute a request if
execution would prejudice its essential interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
The delegations also agreed that the phrase ``essential
interests'' was intended to narrowly limit the class of cases
in which assistance may be denied. It would not be enough that
the Requesting State's case is one that would be inconsistent
with any public policy had it been brought in the Requested
State. Rather, the Requested State must be convinced that
execution of the request would seriously conflict with an
important public policy, which the delegations agreed could
include foreign policy considerations. \8\ Another example
might be a request involving prosecution by the Requesting
State of conduct which occurred in the Requested State and is
constitutionally protected in that State.
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\8\ The Justice and State Departments will work together in
reviewing requests to Israel and considering Israeli requests that
affect important public policy interests relating to foreign policy
considerations.
---------------------------------------------------------------------------
However, it was agreed that ``essential interests'' could
include interests unrelated to national military or political
security, and be invoked if the execution of a request would
violate essential United States interests related to the
fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority would invoke paragraph 1(a) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who
will have access to the information is engaged in or
facilitates the production or distribution of illegal drugs and
is using the request to the prejudice of a U.S. investigation
or prosecution. \9\
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\9\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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Paragraph 1(b) permits the Requested State to deny the
request if it relates to political offense or an offense under
military law which would not be an offense under ordinary
criminal law. It is anticipated that the Central Authorities
will employ jurisprudence similar to that used in the
extradition treaties for determining what is a ``political
offense.'' Similar provisions appear in many other U.S. mutual
legal assistance treaties.
Paragraph 1(c) permits the denial of a request if it was
not made in conformity with the Treaty.
Paragraph 2 is similar to Article 3(2) of the U.S.-Switzer-
land Mutual Legal Assistance Treaty, \10\ and obliges the
Requested State to consider imposing appropriate conditions on
its assistance in lieu of denying a request outright pursuant
to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\10\ U.S.-Switzerland Mutual Legal Assistance Treaty, July 7, 1989,
art. 26, 27 U.S.T. No. 8302, 1052 U.N.T.S. 61.
---------------------------------------------------------------------------
Paragraph 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may, in its
discretion, accept a request in another form in ``urgent
situations.'' A request in another form must be confirmed in
writing within such time period as the Requested State
determines. This paragraph also requires that requests be
accompanied by a translation in the language of the Requested
State unless otherwise agreed.
Paragraph 2 lists the kinds of information deemed crucial
to the efficient operation of the Treaty which must be included
in each request. Paragraph 3 outlines kinds of information that
are important but not always crucial, and should be provided
``to the extent necessary and possible.'' In keeping with the
intention of the Parties that requests be as simple and
straightforward as possible, there is no requirement under the
Treaty that a request be legalized or certified in any
particular manner.
Paragraph 4 states that any exhibits or other attachments
to a request shall be translated into the language of the
Requested State unless the Central Authorities agree other-
wise.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests or, when appropriate, transmit it to the
authority having jurisdiction to do so. The negotiators
intended that the Central Authority, upon receiving a request,
will first review the request, then promptly notify the Central
Authority of the Requesting State if the request does not
appear to comply with the Treaty's terms. If the request does
satisfy the Treaty's requirements and the assistance sought can
be provided by the Central Authority itself, the request will
be fulfilled immediately. If the request meets the Treaty's
requirements but its execution requires action by some other
entity in the Requested State, the Central Authority will
promptly transmit the request to the correct entity for
execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Israel. Rather, it is
anticipated that when a request from Israel requires compulsory
process for execution, the United States Department of Justice
would ask a federal court to issue the necessary process under
Title 28, United States Code, Section 1782, and the provisions
of the Treaty. \11\
---------------------------------------------------------------------------
\11\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) reads ``[t]he Courts of
the Requested State shall have authority to issue subpoenas,
search warrants, or other orders necessary to execute the
request; in the case of Israel, this authority shall be derived
from its domestic law.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in aid of the execution of
mutual assistance requests. It also reflects the fact that
Israel, where its domestic legislation does not so provide,
will enact legislation to ensure that its domestic legal
framework for executing requests for legal assistance is
consistent with the terms of this provision.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for
representation of the Requesting State in any proceedings in
the Requested State arising out of the request for assistance.
Thus, it is understood that if execution of the request entails
action by a judicial or administrative agency, the Central
Authority of the Requested State shall arrange for the
presentation of the request to that court or agency at no cost
to the Requesting State. Since the cost of retaining counsel
abroad to present and process letters rogatory is sometimes
quite high, this provision for reciprocal legal representation
in Paragraph 2 is a significant advance in international legal
cooperation. It is also understood that should the Requesting
State choose to hire private counsel for a particular request,
it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \12\, and provides,
that ``[r]equests shall be executed as empowered by this Treaty
or by applicable law.'' Thus, the method of executing a request
for assistance under the Treaty must be in accordance with the
Requested State's internal laws absent specific contrary
procedures in the Treaty itself. Neither State is expected to
utilize a procedure for executing a treaty request which would
be prohibited under its internal laws. For the United States,
the Treaty is intended to be self-executing; no new or
additional legislation will be needed to carry out the
obligations undertaken.
---------------------------------------------------------------------------
\12\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989,
art. 5(5).
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Israeli
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documentary evidence taken abroad to be
admitted in evidence if the evidence is duly certified and the
defendant has been given fair opportunity to test its
authenticity. \13\ Israeli law currently contains no similar
provision. Thus, documents assembled in Israel in strict
conformity with Israeli procedures on evidence might not be
admissible in United States courts. Similarly, United States
courts utilize procedural techniques such as videotape
depositions to enhance the reliability of evidence taken
abroad, and some of these techniques, while not forbidden, are
generally not used in Israel.
---------------------------------------------------------------------------
\13\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 3 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing criminal investigation, prosecution, or proceeding
in the Requested State. The Central Authority of the Requested
State may, in its discretion, take such preliminary action as
deemed advisable to obtain or preserve evidence that might
otherwise be lost before the conclusion of the criminal
investigation, prosecution, or proceeding in that State. The
paragraph also allows the Requested State to provide the
information sought to the Requesting State subject to
conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \14\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\14\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \15\
Article 6 does, however, oblige the Requesting State to pay
fees of expert witnesses, translation, interpretation, and
transcription, and the allowances and expenses related to
travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\15\ See, e.g. U.S.-Canada Mutual Legal Assistance Treaty, supra
note 14, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 5, art. 6.
---------------------------------------------------------------------------
Paragraph 2 states that if expenses of an extraordinary
nature are or will be required to execute the request, the
Central authorities of the Parties shall consult to determine
the manner in which the expenses shall be borne. A major case
in the Requesting State could involve substantial (and costly)
investigative efforts in the Requested State, and the law
enforcement authorities of the two Parties have finite
resources.
Paragraph 3 states that in cases of seizure, immobilization
or forfeiture of assets or restraining orders in which a court
of the Requested State, pursuant to its law, issues an order to
compensate an injured party or requires furnishing of a bond or
other security, the Central Authorities of the Parties shall
consult to determine the manner in which such costs shall be
borne.
Article 7--Limitations on Use
Paragraph 1 states that the Requested State shall not use
evidence or information provided under the Treaty for purposes
other than those stated in the request without prior consent of
the Central Authority of the Requested State. It will be
recalled that Article 4(2)(d) states that the Requesting State
must specify the purpose for which the information or evidence
sought under the Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Central Authority of the
Requested State may request that the information or evidence it
provides to the Requesting State be kept confidential or be
used only subject to terms and conditions it may specify. Under
most United States mutual legal assistance treaties, conditions
of confidentiality are imposed only when necessary, and are
tailored to fit the circumstances of each particular case. For
instance, the Requested State may wish to cooperate with the
investigation in the Requesting State but choose to limit
access to information which might endanger the safety of an
informant, or unduly prejudice the interests of persons not
connected in any way with the matter being investigated in the
Requesting State. Paragraph 2 requires that if the Requesting
State accepts the information or evidence subject to such
conditions, it shall comply with the conditions to the fullest
extent possible. If assistance is provided with a condition
under this paragraph, the U.S. could deny public disclosure
under the Freedom of Information Act.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in this Article shall preclude the use or
disclosure of information in a criminal prosecution to the
extent that (in the case of a request from the United States)
it is obliged to do so under its Constitution or (in the case
of a request from Israel) it is obligated to do so under the
fundamental rights provided under the law of Israel. Any such
proposed disclosure shall be notified by the Requesting State
to the Requested State in advance.
Paragraph 4 states that once information or evidence
obtained under the Treaty has been revealed to the public in a
public judicial or administrative proceeding related to a
request, the Requesting State is free to use the evidence or
information for any purpose ``unless otherwise indicated by the
Requested Party when executing the request.'' Once evidence
obtained under the Treaty has been revealed to the public in a
trial, that information effectively becomes part of the public
domain, and is likely to become a matter of common knowledge,
perhaps even be described in the press. The negotiators noted
that once this has occurred, it is practically impossible for
the Central Authority of the Requesting Party to block the use
of that information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Israeli authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Statements, Testimony or Evidence Before Authorities of the
Requested State
Paragraph 1 states that the Requested State shall, upon
request, endeavor to obtain a statement of a person for the
purpose of an investigation, prosecution or proceeding of the
Requesting State.
Paragraph 2 requires that the Requested State shall, if
necessary, compel the appearance of a person for taking
testimony and producing documents, records, and articles to the
same extent as would be permitted in investigations,
prosecutions and proceedings of that State. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 3 requires that upon request the Requested State
shall furnish information in advance about the date and place
of the taking of statement, testimony or evidence.
Paragraph 4 provides that any interested parties, including
the defendant and his counsel in criminal cases, may be
permitted by the Requested State to be present and pose
questions during the taking of testimony under this article.
Paragraph 5, when read together with Article 5(3), ensures
that no person will be compelled to furnish information if he
has a right not to do so under the law of the Requested State.
Thus, a witness questioned in the United States pursuant to a
request from Israel is guaranteed the right to invoke any of
the testimonial privileges (e.g., attorney client,
interspousal) available in the United States as well as the
constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \16\ A witness testifying in
Israel may raise any of the similar privileges available under
Israeli law.
---------------------------------------------------------------------------
\16\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 5 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \17\
---------------------------------------------------------------------------
\17\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 14, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 5,
art. 8(4).
---------------------------------------------------------------------------
Paragraph 6 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
this paragraph provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
Article 8(6) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Israel under this article in appropriate
cases. \18\
---------------------------------------------------------------------------
\18\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Parties to provide tax return
information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated under the provisions of the
Convention Abolishing the Requirement of Legalization for
Foreign Public Documents, or may be authenticated in the manner
specified by the Requesting State, which may include use of
Form B appended to the Treaty, and if certified or
authenticated in this manner, the evidence shall be admissible
in evidence in the Requesting State. Thus, the Treaty
establishes a procedure for authenticating official foreign
documents that is consistent with Rule 902(3) of the Federal
Rules of Evidence and Rule 44, Federal Rules of Civil
Procedure.
Like Article 8(6), Article 9(3) states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Appearance of Persons Before Authorities of the Requesting
State
This article provides that upon request, the Requested
State shall invite persons located in its territory to travel
to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness.
The Requesting State would be expected to pay the expenses
of such an appearance pursuant to Article 6 if requested by the
person whose appearance is sought. It is assumed that such
expenses would normally include the costs of transportation,
room, and board. When the person is to appear in the United
States, a nominal witness fee would also be provided.
The article also provides that the Central Authority of the
Requesting State shall promptly inform the Central Authority of
the Requested State of the person's response.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \19\
---------------------------------------------------------------------------
\19\For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \20\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \21\
---------------------------------------------------------------------------
\20\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
10, art. 26.
\21\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence is sought by the Requested
State for purposes of assistance under this Treaty shall be
transferred from the Requesting State to the Requested State if
the person consents and if the Central Authorities of both
States agree. This would also cover situations in which a
person in custody in the United States on a criminal matter has
sought permission to travel to another country to be present at
a deposition being taken there in connection with the case.
\22\
---------------------------------------------------------------------------
\22\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
---------------------------------------------------------------------------
Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Paragraph 4 provides that if the sending State notifies the
receiving State that the transferred person is no longer
required to be held in custody, that person shall either be
expeditiously returned to the sending State or be set at
liberty. A person so set at liberty shall be entitled to the
cost of his return travel to the sending State, if he returns
to that state.
Paragraph 5 states that the Requesting State shall be
responsible for making all necessary arrangements for the
transit of transferred persons through third countries.
Article 12--Safe Conduct
Paragraph 1 of Article 12 states that a person appearing
before authorities in the Receiving State pursuant to a request
under Article 10 or 11 shall not be subject to service of
process, or be detained or subjected to any other restrictions
of liberty with respect to criminal proceedings related to acts
or convictions which preceded that person's departure from the
Sending State, except as provided in Article 11.
Paragraph 2 states that the Central Authority of the
Receiving State may, in its discretion, determine whether a
person appearing before the authorities of the Receiving State
under Article 10 or 11 may be detained or subjected to any
restriction of personal liberty with respect to civil
proceedings related to any acts or omissions which preceded the
person's departure from the Sending State.
Paragraph 3 states that, when not inconsistent with its
domestic laws, the Central Authority of the Receiving State
may, in its discretion, determine that a person appearing
before the authorities of the Receiving State under Article 10
or 11 shall not be subject to service of process with respect
to a civil proceedings related to any acts or omissions which
preceded the person's departure from the sending state. Safe
conduct may only be offered under this paragraph, however, when
it is not inconsistent with the domestic law of the receiving
state.
None of these provisions prevent the prosecution of a
person for perjury or any other crime committed while in the
receiving State.
Paragraph 4 states that the safe conduct guaranteed in this
article shall cease fifteen days after the person has been
notified that his presence is no longer required, and, being
physically able to depart, he has not left the territory of the
Receiving State or he has left the Receiving State and
thereafter returns to it.
Article 13--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
extent of such efforts will vary, of course, depending on the
quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 14--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to execute a request to effect the
service of documents such as summons, complaints, subpoenas, or
other legal papers pursuant to a Treaty request. Identical
provisions appear in several U.S. mutual legal assistance
treaties.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Israel to follow a specified
procedure for service) or by the United States Marshal's
Service in instances in which personal service is requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be transmitted by the Requesting State to
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request. If
service cannot be effectuated, or cannot be effected in the
manner specified, the Requesting State shall be so informed and
shall be advised of the reasons.
Article 15--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782, \23\ and Israeli'
courts have the power to execute such requests, under Section
3(a) of the Israeli mutual assistance law. This article creates
a formal framework for handling such requests.
---------------------------------------------------------------------------
\23\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984).
---------------------------------------------------------------------------
Paragraph 1 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Israel will have to be supported by a
showing of probable cause for the search. A United States
request to Israel would have to satisfy the corresponding
evidentiary standard there, which is ``reason to believe'' that
the specified premises contains articles likely to be evidence
of the commission of an offense. \24\
---------------------------------------------------------------------------
\24\ See Section 23 of Israeli Criminal Procedure (Arrest and
Search) Ordinance (New Version) 5729-1969.
---------------------------------------------------------------------------
Paragraph 2 is designed to insure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, and to
the extent possible, every official who has custody of a seized
item shall certify the continuity of custody, the identity of
the item, and the integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requested State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the
Requesting State to provide authentication and chain of custody
testimony each time the Requesting State uses evidence produced
under this article. The requirement that the certificates be
admissible without additional authentication leaves the trier
of fact free to bar use of the evidence itself, in spite of the
certificate, if there is some reason to do so other than
authenticity or chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \25\
---------------------------------------------------------------------------
\25\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 17;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 14; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-U.K. Mutual Legal Assistance Treaty, Jan.
6, 1994.
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Article 16--Return of Documents, Records and Articles of Evidence
This article provides that any documents, records, or items
of evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. This would normally be
invoked only if the Central Authority of the Requested State
specifically requests it at the time that the items are
delivered to the Requesting State. It is anticipated that
unless original records or articles of significant intrinsic
value are involved, the Requested State will not usually
request return of the items, but this is a matter best left to
development in practice.
Article 17--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Israel in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to Article 17 in the U.S.-Canada
Mutual Legal Assistance Treaty and Article 15 of the U.S.-
Thailand Mutual Legal Assistance Treaty. Paragraph 1 states
that the Parties shall assist one another to the extent
permitted by their respective laws in proceedings relating to
the forfeiture of the proceeds or instrumentalities of
offenses. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
seize or immobilize the assets pending further proceedings.
Thus, 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 of forfeiture levied in the Requesting
State, the Treaty encourages the Requested State to do so. The
language of the article is carefully selected, however, so as
not to require either State to take any action that would
exceed its internal legal authority. It does not mandate
institution of forfeiture proceedings or initiation of
temporary immobilization in either country against property
identified by the other if the relevant prosecution authorities
do not deem it proper to do so. \26\
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\26\ In Israel, unlike the U.S. law, the law does not currently
allow for civil forfeiture. However, Israeli law does permit forfeiture
for certain criminal offenses (at present including in particular
narcotics violations), and ordinarily a defendant must be convicted in
order for Israel to confiscate the defendant's property.
---------------------------------------------------------------------------
Paragraph 2 authorizes the Central Authority of one State
to notify the other of the existence in the latter's territory
of proceeds or instrumentalities of offenses that may be
forfeitable or otherwise subject to seizure or immobilization
under the laws of the other Party. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables which are either being used
in the crime or which were purchased or obtained as a result of
the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Israel, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, U.S.C.
Section 2314, \27\ or be subject to a temporary restraining
order in anticipation of a civil action for the return of the
assets to the lawful owner. Proceeds of a foreign kidnapping,
robbery, extortion or a fraud by or against a foreign bank are
civilly and criminally forfeitable in the U.S. since these
offenses are predicate offenses under U.S. money laundering
laws. \28\ Thus, it is a violation of United States criminal
law to launder the proceeds of these foreign fraud or theft
offenses, when such proceeds are brought into the United
States.
---------------------------------------------------------------------------
\27\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\28\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B), allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \29\ The United States delegation
expects that Article 17 of the Treaty will enable this
legislation to be even more effective.
---------------------------------------------------------------------------
\29\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs an Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\30\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by its respective laws.
---------------------------------------------------------------------------
\30\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
Paragraph 4 states that the parties shall assist each other
to the extent permitted by their respective laws in connection
with restitution to victims of crime, and the imposition or
collection of fines in criminal proceedings. However, there is
no obligation under this paragraph to enforce restitution
orders or to collect fines or to enforce judgments imposing
fines.
Article 18--Referral For Investigation or Prosecution
This article is similar to provisions in other United
States mutual legal assistance treaties \31\ that deal with the
situation in which the officials of one State determine from
their investigation of a crime that prosecution of the offense
by the authorities of the other State is more appropriate. For
example, Israeli investigators probing the illegal possession
of narcotics in Israel may learn that the narcotics were
smuggled out of the country to the United States, and decide to
ask the United States to continue the investigation, turning
over to the Drug Enforcement Administration such evidence as
they have assembled.
---------------------------------------------------------------------------
\31\ U.S.-Thailand Mutual Legal Assistance Treaty, Mar. 19, 1986,
art. 14; U.S.-Spain Mutual Legal Assistance Treaty, supra note 24,
1990, art. 19.
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This article was included in this Treaty because of the
growing number of cases in which Israel prosecutes Israeli
citizens for crimes committed in the United States in lieu of
extradition, \32\ and United States prosecutors cooperate with
Israeli authorities to achieve successful prosecutions. It is
anticipated that this process will be facilitated by the
Treaty.
---------------------------------------------------------------------------
\32\ See Cohen, New York v. Kirman/Israel v. Kirman: A Prosecution
In Tel Aviv Under Israeli Law for a Narcotics Offense Committed in New
York, 4 Crim. L. F. 597 (1993); Abramovsky, Partners Against Crime:
Joint Prosecutions of Israeli Organized Crime Figures by U.S. and
Israeli Authorities, 5 Fordham Int'l L.J. 1903 (1996).
---------------------------------------------------------------------------
Article 19--Other Assistance
This article states that assistance and other procedures
set forth in this Treaty shall not prevent assistance under any
other applicable international agreement between the two
countries. It also provides that the Treaty shall not be deemed
to prevent recourse to any assistance available under the
domestic laws of either country. Thus, the Treaty leaves the
provisions of United States and Israeli law on letters rogatory
completely undisturbed, and does not alter any pre-existing
agreements concerning investigative assistance.
Article 20--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \33\ It
is anticipated that the Central Authorities will conduct
regular consultations pursuant to this article.
---------------------------------------------------------------------------
\33\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 14, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 24, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 5, art. 18.
---------------------------------------------------------------------------
Article 21--Ratification, Entry Into Force, Application, and
Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification.
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented after it enters into force, even if the
request relates to offenses that occurred before the Treaty
enters into force. Provisions of this kind are common in law
enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and Saint Kitts and Nevis on Mutual Legal Assistance in Criminal
Matters
On September 18, 1997, the United States signed a treaty
with Saint Kitts and Nevis 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 expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking in
the eastern Caribbean.
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. Saint Kitts and
Nevis has its own mutual legal assistance laws in place for
implementing the Treaty, and does not anticipate enacting new
legislation. \1\
---------------------------------------------------------------------------
\1\``An Act to make provision with respect to the Scheme relating
to Mutual Assistance in Criminal Matters within the Commonwealth and to
facilitate its operation in St. Kitts and Nevis and to make provision
concerning mutual assistance in Criminal Matters between Kitts and
Nevis and countries other than Commonwealth countries,'' hereinafter
``the Mutual Assistance in Criminal Matters Act, 1993.'' Since there
are some differences between the Treaty and St. Kitts and Nevis law, it
is anticipated that St. Kitts and Nevis will issue regulations under
Section 29 of the Act that will ``direct that [the] Act shall apply in
relation to [the United States] as if it were a Commonwealth country,
subject to such limitations, conditions, exceptions or qualifications
(if any) as may be prescribed . . .'' in order for the terms of the
Treaty to prevail.
---------------------------------------------------------------------------
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Saint Kitts
and Nevis, and other legal measures taken prior to the filing
of formal charges in either State. \2\ The term ``proceedings''
was intended to cover the full range of proceedings in a
criminal case, including such matters as bail and sentencing
hearings. \3\ It was also agreed that since the phrase
``proceedings related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \4\ yet such proceedings are covered by the
Treaty.
---------------------------------------------------------------------------
\2\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Saint Kitts and
Nevis under the Treaty in connection with investigations prior to
charges being filed in Saint Kitts and Nevis. Prior to the 1996
amendments to Title 28, United States Code, Section 1782, some U.S.
courts had interpreted that provision to require that assistance be
provided in criminal matters only if formal charges have already been
filed abroad, or are ``imminent,'' or ``very likely.'' McCarthy, ``A
Proposed Uniform Standard for U.S. Courts in Granting Requests for
International Judicial Assistance,'' 15 Fordham Int'l Law J. 772
(1991). The 1996 amendment eliminates this problem, however, by
amending subsec. (a) to state ``including criminal investigation
conducted before formal accusation.'' In any event, this Treaty was
intentionally written to cover criminal investigations that have just
begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\3\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 makes it clear that there is no general requirement of dual
criminality for cooperation. Thus, assistance may be provided
even when the criminal matter under investigation in the
Requesting State would not be a crime inxcept as otherwise
provided in this Treaty,'' a phrase which refers to Article
3(1)(e), under which the Requested State may, in its
discretion, require dual criminality before executing a request
under Article 14 (involving searches and seizures) or Article
16 (involving asset forfeiture matters). Article 1(3) is
important because United States and Saint Kitts and Nevis
criminal law differ, and a general dual criminality rule would
make assistance unavailable in many significant areas. This
type of limited dual criminality provision is found in other
U.S. mutual legal assistance treaties. \5\ During the
negotiations, the United States delegation received assurances
that assistance would be available under the Treaty to the
United States in investigations of such offenses as conspiracy;
drug trafficking, including continuing criminal enterprise
(Title 21, United States Code, Section 848); offenses under the
racketeering statutes (Title 18, United States Code, Section
1961-1968); money laundering; crimes against environmental
protection laws; and antitrust violations.
---------------------------------------------------------------------------
\5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
While the Treaty does not require dual criminality in
general, Saint Kitts and Nevis' delegation did raise questions
about assistance in one area in which the criminal laws of the
Parties differ. Since Saint Kitts and Nevis currently has no
income tax legislation, it suggested that the Treaty restrict
mutual assistance in tax cases, noting that such restrictions
are contained in the United States' mutual legal assistance
treaty with the United Kingdom regarding the Cayman Islands.
The United States delegation was unwilling to agree that this
Treaty be so limited, because criminal tax prosecutions are
often used to pursue and prosecute major criminals such as drug
traffickers and organized crime figures. Inhis treaty is
intended solely for mutual legal assistance in criminal matters
between the Parties as set forth in paragraph (1) above,''
thereby emphasizing that the Treaty applies only to criminal
tax matters. At Saint Kitts and Nevis' request, diplomatic
notes subsequently were exchanged indicating the Parties'
agreement that Saint Kitts and Nevis may interpret Article 1 to
exclude assistance under the treaty for civil and
administrative income tax matters that are unrelated to any
criminal matter.
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \6\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Saint Kitts and
Nevis by letters rogatory, an avenue of international
assistance that the Treaty leaves undisturbed. Similarly, the
paragraph provides that the Treaty is not intended to create
any right in a private person to suppress or exclude evidence
provided pursuant to the Treaty, or to impede the execution of
a request.
---------------------------------------------------------------------------
\6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Saint Kitts and Nevis on behalf of federal
agencies, state agencies, and local law enforcement authorities
in the United States. Saint Kitts and Nevis' Central Authority
will make all requests emanating from officials in Saint Kitts
and Nevis.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \7\
Paragraph 2 also states that the Attorney General of Saint
Kitts and Nevis or a person designated by the Attorney General
will serve as the Central Authority for Saint Kitts and Nevis.
\8\
---------------------------------------------------------------------------
\7\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
\8\ Section 4, Mutual Assistance in Criminal Matters Act, 1993.
---------------------------------------------------------------------------
Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or other essential public
interests of that State. All United States mutual legal
assistance treaties contain provisions allowing the Requested
State to decline to execute a request if execution would
prejudice its essential interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
The delegations also agreed that the phrase ``essential
public interests'' was intended to narrowly limit the class of
cases in which assistance may be denied. It would not be enough
that the Requesting State's case is one that would be
inconsistent with public policy had it been brought in the
Requested State. Rather, the Requested State must be convinced
that execution of the request would seriously conflict with
significant public policy. An example might be a request
involving prosecution by the Requesting State of conduct which
occurred in the Requested State and is constitutionally
protected in that State.
However, it was agreed that ``essential public interests''
could include interests unrelated to national military or
political security, and be invoked if the execution of a
request would violate essential United States interests related
to the fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph 1(b) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \9\
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\9\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
---------------------------------------------------------------------------
In general, the mere fact that the execution of a request
would involve the disclosure of records protected by bank or
business secrecy in the Requested State would not justify
invocation of the ``essential public interests'' provision.
Indeed, a major objective of the Treaty is to provide a formal,
agreed channel for making such information available for law
enforcement purposes. In the course of the negotiations, the
Saint Kitts and Nevis' delegation expressed its view that in
very exceptional and narrow circumstances the disclosure of
business or banking secrets could be of such significant
importance to its Government (e.g., if disclosure would
effectively destroy an entire domestic industry rather than
just a specific business entity) that it could prejudice that
State's ``essential public interests'' and entitle it to deny
assistance. \10\ The U.S. delegation did not disagree that
there might be such extraordinary circumstances, but emphasized
its view that denials of assistance on this basis by either
party should be extremely rare.
---------------------------------------------------------------------------
\10\ The Saint Kitts and Nevis view of this provision is thus
similar to the Swiss view of Article 3(2) of the U.S.-Switzerland
Treaty. See Technical Analysis to the Treaty between the U.S. and
Switzerland on Mutual Assistance in Criminal Matters, signed May 25,
1973. U.S. Senate Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
Paragraph (1)(c) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph (1)(d) permits denial of a request if it involves
a political offense. \11\ It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
---------------------------------------------------------------------------
\11\ See Section 19(2)(a) and 19(2)(b), Mutual Assistance in
Criminal Matters Act, 1993.
---------------------------------------------------------------------------
Paragraph (1)(e) permits denial of a request if there is no
``dual criminality'' with respect to requests made pursuant to
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters).
Finally, Paragraph (1)(f) permits denial of the request if
execution would be contrary to the Constitution of the
Requested State. This provision was deemed necessary under
Saint Kitts and Nevis law, \12\ and is similar to clauses in
other United States mutual legal assistance treaties. \13\
---------------------------------------------------------------------------
\12\ Section 19(2)(e), Mutual Assistance in Criminal Matters Act,
1993.
\13\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989,
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13,
1989, art. III(1)(d).
---------------------------------------------------------------------------
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \14\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
---------------------------------------------------------------------------
\14\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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed,
the Requested State will provide some explanation for not
providing all of the information or evidence sought. This
should avoid misunderstandings, and enable the Requesting State
to better prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Saint Kitts and Nevis.
Rather, it is anticipated that when a request from Saint Kitts
and Nevis requires compulsory process for execution, the United
States Department of Justice would ask a federal court to issue
the necessary process under Title 28, United States Code,
Section 1782, and the provisions of the Treaty. \15\
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\15\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
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The third sentence in Article 5(1) reads ``[t]he competent
judicial or other authorities of the Requested State shall have
power to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in the execution of mutual
assistance requests. The phrase refers to ``judicial or other
authorities'' to include all those officials authorized to
issue compulsory process that might be needed in executing a
request. For example, in Saint Kitts and Nevis, justices of the
peace and senior police officers are empowered to issue certain
kinds of compulsory process under certain circumstances.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Paragraph 2 is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \16\, and provides,
that ``[r]equests shall be executed according to the internal
laws and procedures of the Requested State except to the extent
that this Treaty provides otherwise.'' Thus, the method of
executing a request for assistance under the Treaty must be in
accordance with the Requested State's internal laws absent
specific contrary procedures in the Treaty itself. Thus,
neither State is expected to take any action pursuant to a
treaty request which would be prohibited under its internal
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to
carry out the obligations undertaken.
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\16\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 13.
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The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Saint
Kitts and Nevis authorities in collecting evidence in order to
assure the admissibility of that evidence at trial. For
instance, United States law permits documentary evidence taken
abroad to be admitted in evidence if the evidence is duly
certified and the defendant has been given fair opportunity to
test its authenticity. \17\ Saint Kitts and Nevis law currently
contains no similar provision. Thus, documents assembled in
Saint Kitts and Nevis in strict conformity with its procedures
on evidence might not be admissible in United States courts.
Similarly, United States courts utilize procedural techniques
such as videotape depositions to enhance the reliability of
evidence taken abroad, and some of these techniques, while not
forbidden, are not used in Saint Kitts and Nevis.
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\17\ Title 18, United States Code, Section 3505.
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Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 3 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested State may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \18\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\18\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual
Legal Assistance Treaty, supra, note 5, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \19\
Article 6 states that the Requesting State will pay fees of
expert witnesses, translation, interpretation and transcription
costs, and allowances and expenses related to travel of persons
pursuant to Articles 10 and 11.
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\19\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 18, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 5, art. 6.
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Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it.
The Saint Kitts and Nevis delegation expressed particular
concern that information supplied by Saint Kitts and Nevis in
response to United States requests must receive real and
effective confidentiality, and not be disclosed under the
Freedom of Information Act. Both delegations agreed that since
this article permits the Requested State to prohibit the
Requesting State's disclosure of information for any purpose
other than that stated in the request, a Freedom of Information
Act request that seeks information that the United States
obtained under the Treaty would have to be denied if the United
States received the information on the condition that it be
kept confidential.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that there is an obligation to do
so under the Constitution of the Requesting State in a criminal
prosecution. Any such proposed disclosure shall be notified by
the Requesting State to the Requested State in advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
paragraphs 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Saint Kitts and Nevis authority
seeks to use information or evidence obtained from the United
States in a manner inconsistent with this article, the person
can inform the Central Authority of the United States of the
allegations for consideration as a matter between the
Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article.
Paragraph 4, when read together with Article 5(3), ensures
that no person will be compelled to furnish information if he
has a right not to do so under the law of the Requested State.
Thus, a witness questioned in the United States pursuant to a
request from Saint Kitts and Nevis is guaranteed the right to
invoke any of the testimonial privileges (e.g., attorney
client, interspousal) available in the United States as well as
the constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \20\ A witness testifying in
Saint Kitts and Nevis may raise any of the similar privileges
available under Saint Kitts and Nevis law.
---------------------------------------------------------------------------
\20\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \21\
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\21\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 18, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 5,
art. 8(4).
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Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
this paragraph provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance, and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Saint Kitts and Nevis under this article
in appropriate cases. \22\
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\22\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated in accordance with the procedures
specified in the request, and if authenticated in this manner,
the evidence shall be admissible in evidence in the Requesting
State. Thus, the Treaty establishes a procedure for
authenticating official foreign documents that is consistent
with Rule 902(3) of the Federal Rules of Evidence and Rule 44,
Federal Rules of Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6 if requested by the person whose appearance is
sought.
Paragraph l provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while a person
is in the Requesting State. Most U.S. mutual legal assistance
treaties anticipate that the Central Authority will determine
whether to extend such safe conduct, but under the Treaty with
Saint Kitts and Nevis, the Central Authority merely reports
whether safe conduct has been extended. This is because in
Saint Kitts and Nevis only the Director of Public Prosecutions
can extend such safe conduct, and the Attorney General (who is
Central Authority for Saint Kitts and Nevis under Article 3 of
the Treaty) cannot do so. This ``safe conduct'' is limited to
acts or convictions that preceded the witness's departure from
the Requested State. It is understood that this provision would
not prevent the prosecution of a person for perjury or any
other crime committed while in the Requesting State.
Paragraph 3 states that the safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer
required, or if the person leaves the territory of the
Requesting State and thereafter returns to it. However, the
competent authorities of the Requesting State may extend the
safe conduct up to fifteen days if they determine that there is
good cause to do so. For the United States, the ``competent
authorities'' for these purposes would be the Central
Authority.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \23\
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\23\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \24\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \25\
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\24\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
14, art. 26.
\25\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
It is also consistent with Section 24, Mutual Assistance in Criminal
Matters Act, 1993.
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Paragraph 2 provides that a person in the custody of the
Requested State whose presence in the Requesting State is
sought for purposes of assistance under this Treaty shall be
transferred from the Requested State to the Requesting State
for that purpose if the person consents and if the Central
Authorities of both States agree. This would also cover
situations in which a person in custody in the United States on
a criminal matter has sought permission to travel to another
country to be present at a deposition being taken there in
connection with the case. \26\
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\26\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a person under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State.
\27\ The extent of such efforts will vary, of course, depending
on the quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
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\27\ This is consistent with Section 2, Mutual Assistance in
Criminal Matters Act, 1993.
---------------------------------------------------------------------------
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. This is
consistent with Saint Kitts and Nevis law, \28\ and identical
provisions appear in several U.S. mutual legal assistance
treaties.
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\28\ Section 25, Mutual Assistance in Criminal Matters Act, 1993.
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It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Saint Kitts and Nevis to
follow a specified procedure for service) or by the United
States Marshal's Service in instances in which personal service
is requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \29\ This article
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
\29\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.)(search warrant issued February 24, 1984). The courts of
Saint Kitts and Nevis also have the power to execute such requests
under Section 22, Mutual Assistance in Criminal Matters Act, 1993.
---------------------------------------------------------------------------
Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Saint Kitts and Nevis will have to be
supported by a showing of probable cause for the search. A
United States request to Saint Kitts and Nevis would have to
satisfy the corresponding evidentiary standard there, which is
``a reasonable basis to believe'' that the specified premises
contains articles likely to be evidence of the commission of an
offense.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced under
this article. As in Articles 8(5) and 9(3), the injunction that
the certificates be admissible without additional
authentication leaves the trier of fact free to bar use of the
evidence itself, in spite of the certificate, if there is some
reason to do so other than authenticity or chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \30\
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\30\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 21;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 18; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jan. 6, 1994.
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Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. The delegation understood
that this requirement would be invoked only if the Central
Authority of the Requested State specifically requests it at
the time that the items are delivered to the Requesting State.
It is anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development of practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Saint Kitts and Nevis in combating
narcotics trafficking. One significant strategy in this effort
is action by United States authorities to seize and confiscate
money, property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Saint Kitts and Nevis, they could be
seized under 18 U.S.C. 981 in aid of a prosecution under Title
18, United States Code, Section 2314, \31\ or be subject to a
temporary restraining order in anticipation of a civil action
for the return of the assets to the lawful owner. Proceeds of a
foreign kidnapping, robbery, extortion or a fraud by or against
a foreign bank are civilly and criminally forfeitable in the
U.S. since these offenses are predicate offenses under U.S.
money laundering laws. \32\ Thus, it is a violation of United
States criminal law to launder the proceeds of these foreign
fraud or theft offenses, when such proceeds are brought into
the United States.
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\31\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\32\ Title 18, United States Code, Section 1956(c)(7)(B).
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If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be willing
and able to help one another. Title 18, United States Code,
Section 981(a)(1)(B), allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \33\ The United States delegation
expects that Article 16 of the Treaty will enable this
legislation to be even more effective.
---------------------------------------------------------------------------
\33\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \34\
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\34\ In Saint Kitts and Nevis, unlike the U.S., the law does not
currently allow for civil forfeiture. However, Saint Kitts and Nevis
law currently does permit forfeiture in criminal cases, and ordinarily
a defendant must be convicted in order for the Government of Saint
Kitts and Nevis to confiscate the defendant's property.
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\35\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
---------------------------------------------------------------------------
\35\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
Article 17--Compatibility with Other Arrangements
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Saint Kitts and Nevis law on letters rogatory completely
undisturbed, and would not alter any pre-existing agreements
concerning investigative assistance.
Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \36\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
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\36\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 18, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 30, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 5, art. 18.
---------------------------------------------------------------------------
Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented pursuant to it after it enters into force,
even if the relevant acts or omissions occurred before the date
on which the Treaty entered into force. Provisions of this kind
are common in law enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of The Treaty Between The United States of America
and The Republic of Latvia on Mutual Legal Assistance in Criminal
Matters
On June 13, 1997, the United States signed a treaty with
Latvia on Mutual Legal Assistance in Criminal Matters (``the
Treaty''). In recent years, the United States has signed
similar mutual legal assistance 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 with Latvia is the first mutual legal assistance
treaty we have signed with a former Soviet republic, and it is
expected to be a valuable weapon for the United States in its
efforts to combat transnational terrorism, international drug
trafficking, and Russian organized crime.
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. Latvia has no
mutual legal assistance legislation at the present time, but
Latvia's delegation gave assurances that the Treaty would be
implemented in Latvia without such legislation. The U.S.
delegation was told that under Latvian jurisprudence, the terms
of the Treaty would take precedence over silence in Latvian
domestic law, and, in case of a conflict between the Treaty and
future Latvian domestic law, the Treaty would control.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Latvia, and
other legal measures taken prior to the filing of formal
charges in either State. \1\ The term ``proceedings'' was
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
\2\ It was also agreed that since the phrase ``proceedings
related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \3\ yet such proceedings are covered by the
Treaty.
---------------------------------------------------------------------------
\1\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Latvia under the
Treaty in connection with investigations prior to charges being filed
in Latvia. Prior to the 1996 amendments of Title 28, United States
Code, Section 1782, some U.S. courts had interpreted that Section to
require that assistance be provided in criminal matters only if formal
charges have already been filed abroad, or are ``imminent,'' or ``very
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in
Granting Requests for International Judicial Assistance,'' 15 Fordham
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem,
however, by amending subsec. (a) to state ``including criminal
investigation conducted before formal accusation.'' In any event, this
Treaty was intentionally written to cover criminal investigations that
have just begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\2\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\3\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 makes it clear that there is no general requirement of dual
criminality for cooperation. Thus, assistance may be provided
even when the criminal matter under investigation in the
Requesting State would not be a crime in the Requested State.
Article 1(3) is important because United States and Latvian
criminal law differ, and a general dual criminality rule would
make assistance unavailable in significant areas. This type of
limited dual criminality provision is found in other U.S.
mutual legal assistance treaties. \4\ During the negotiations,
the United States delegation received assurances that
assistance would be available under the Treaty to the United
States in investigations of such offenses as conspiracy; drug
trafficking, including continuing criminal enterprise (Title
21, United States Code, Section 848); offenses under the
racketeering statutes (Title 18, United States Code, Section
1961-1968); money laundering; terrorism; tax crimes, including
tax evasion and tax fraud; crimes against environmental
protection laws; antitrust violations; and alien smuggling.
---------------------------------------------------------------------------
\4\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
Paragraph 4 contains a standard provision in United States
Mutual legal assistance treaties \5\ that states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Latvia by letters
rogatory, an avenue of international assistance that the Treaty
leaves undisturbed. Similarly, the paragraph provides that the
Treaty is not intended to create any right in a private person
to suppress or exclude evidence provided pursuant to the
Treaty.
---------------------------------------------------------------------------
\5\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Latvia on behalf of federal, state, and local
prosecutors, agencies, and other law enforcement authorities in
the United States. The Latvia Central Authority would make all
requests emanating from officials in Latvia.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under Mutual legal assistance treaties to the
Assistant Attorney General in charge of the Criminal Division.
\6\ Article 2(2) of the Treaty also states that the Prosecutor
General of Latvia or a person designated by the Prosecutor
General shall serve as the Central Authority for Latvia.
---------------------------------------------------------------------------
\6\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
---------------------------------------------------------------------------
Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or any other means, at the
option of the Central Authorities themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph 1(a) permits the Requested State to deny a
request if a request involves an offense under military law
that would not be an offense under ordinary criminal law.
Paragraph (1)(b) permits denial of a request if it involves
a political offense. It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other Mutual legal assistance treaties.
Paragraph (1)(c) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or similar essential interests of
that State. All United States mutual legal assistance treaties
contain provisions allowing the Requested State to decline to
execute a request if execution would prejudice its essential
interests.
The delegations agreed that the word ``security'' would
include cases where assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the Department of Justice, in its role
as Central Authority for the United States, would work closely
with the Department of State and other Government agencies to
determine whether to execute a request that falls into this
category.
The delegations agreed that the phrase ``essential
interests'' is intended to limit narrowly the class of cases in
which assistance may be denied. It is not enough that the
Requesting State's case is one that would be inconsistent with
public policy had it been brought in the Requested State.
Rather, the Requested State must be convinced that execution of
the request would seriously conflict with significant public
policy. An example is a request involving prosecution by the
Requesting State of conduct that occurred in the Requested
State that is constitutionally protected in the Requested
State.
It was agreed that ``essential interests'' may include
interests unrelated to national military or political security,
and may be invoked if the execution of a request would violate
essential United States interests related to the fundamental
purposes of the Treaty. For example, one fundamental purpose of
the Treaty is to enhance law enforcement cooperation. The
attainment of that goal would be hampered if sensitive law
enforcement information available under the Treaty were to fall
into the wrong hands. Accordingly, the United States Central
Authority may invoke paragraph 1(c) to decline to provide
sensitive or confidential drug-related information pursuant to
a Treaty request whenever it determines, after appropriate
consultation with law enforcement, intelligence, and foreign
policy agencies, that a senior foreign government official who
likely will have access to the information is engaged in or
facilitates the production or distribution of illegal drugs,
and is using the request to the prejudice of a United States
investigation or prosecution. \7\
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\7\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2d Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, Department of
Justice).
---------------------------------------------------------------------------
Paragraph (1)(d) permits the denial of a request if it was
not made in conformity with the Treaty.
Paragraph 2 is similar to paragraph 2 of the United States-
Switzerland Mutual Legal Assistance Treaty, \8\ and obliges the
Requested State to consider imposing appropriate conditions on
its assistance in lieu of denying a request outright pursuant
to paragraph 1. For example, a Party might request information
that could be used either in a routine criminal case (which is
within the scope of the Treaty) or in a political prosecution
(which is subject to refusal). This paragraph permits the
Requested State to provide the information on condition that it
be used only in the routine criminal case. Naturally, the
Requested State should notify the Requesting State of any
proposed conditions before actually delivering the evidence in
question, thereby according the Requesting State an opportunity
to indicate whether it is willing to accept the evidence
subject to the conditions. If the Requesting State does accept
the evidence subject to the conditions, it must honor the
conditions.
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\8\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of any reasons for denying assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings and enable the Requesting State to prepare
future requests better.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations.'' A request in
another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Latvia. Rather, it is
anticipated that when a request from Latvia requires compulsory
process for execution, the Department of Justice would utilize
Title 28, United States Code, Section 1782, to ask a federal
court to issue the necessary process. This paragraph of the
Treaty specifically authorizes United States courts to use all
of their powers to issue subpoenas and other process to satisfy
a request under the Treaty.
The third sentence in Article 5(1) reads ``[t]he courts or
other competent authorities of the Requested State shall have
authority to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in the execution of mutual
assistance requests. The phrase refers to ``courts or other
competent authorities'' to include all those officials
authorized to issue compulsory process that might be needed in
executing a request. For example, in Latvia, justices of the
peace and senior police officers are empowered to issue certain
kinds of compulsory process under certain circumstances.
Paragraph 2 states that the Central Authority of the
Requested State shall represent or make arrangements for
representing the Requesting State in any proceedings in the
Requested State arising out of the request for assistance.
Thus, it is understood that if execution of the request entails
action by a judicial or administrative agency, the Central
Authority of the Requested State will arrange for the
presentation of the request to that court or agency for the
benefit of the Requesting State.
Paragraph 3 provides that requests shall be executed in
accordance with the laws of the Requested State except to the
extent that this Treaty provides otherwise. Thus, for example,
the provision in Article 8(4) that claims of privilege under
the law of the Requesting State are to be referred back to the
Requesting State for resolution would take precedence over a
contrary provision in domestic law. To illustrate, 28 U.S.C.
1782 permits, as a basis for not compelling testimony or
production of evidence, deference to privileges legally
applicable in a Requesting State. To the extent that this
provision were considered to be in conflict with the Treaty,
the Treaty provision would prevail.
The paragraph also provides that the method of executing a
request for assistance under the Treaty shall be followed
``except insofar as prohibited by the laws of the Requested
State.'' Both delegations agreed that the Treaty's primary goal
of enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner that renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason, the
Requested State must follow the procedure outlined in the
request to the extent that it can, even if the procedure is not
that usually employed in its own proceedings (e.g., use of
videotape depositions). However, if the procedure called for in
the request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing criminal investigation or proceeding in the
Requested State. The Central Authority of the Requested State
may, in its discretion, take such preliminary action as deemed
advisable to obtain or preserve evidence that might otherwise
be lost before the conclusion of the investigation or
proceeding in that State. The paragraph also allows the
Requested State to provide the information sought to the
Requesting State subject to conditions needed to avoid
interference with the Requested State's investigation or
proceeding.
It is anticipated that some United States requests for
assistance may contain information that is kept confidential
under our law or practice. For example, it may be necessary to
disclose information that is ordinarily protected by Rule 6(e),
Federal Rules of Criminal Procedure, in the course of
describing ``the subject matter and nature of the
investigation, prosecution, or proceeding'' as required by
Article 4(2)(b). Paragraph 5 enables the Requesting State to
call upon the Requested State to keep the information in the
request confidential. \9\ If the Requested State cannot execute
the request without disclosing the information in question (as
might be the situation if execution requires a public judicial
proceeding in the Requested State), or if for some other reason
this confidentiality cannot be assured, the Treaty obliges the
Requested State to so notify the Requesting State to provide an
opportunity for it to withdraw the request rather than risk
jeopardizing an investigation or proceeding by public
disclosure of the information.
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\9\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, supra, note 4, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires the Central Authority of the Requested
State to promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must explain the reason. For example, if
evidence sought could not be located, the Central Authority of
the Requested State would report that fact to the Central
Authority of the Requesting State.
Article 6--Costs
This article obligates the Requested State to pay all costs
relating to the execution of a request, with the exception of
those costs enumerated in the article: (1) the fees of experts,
including expert witnesses, unless both Central Authorities
otherwise agree; (2) interpretation, translation and
transcription costs; and (3) allowances and expenses related to
travel of persons who either are traveling in the Requested
State for the convenience of the Requesting State, or are
traveling pursuant to Articles 10 and 11.
Costs ``relating to'' execution means the costs normally
incurred in transmitting a request to the executing authority,
notifying witnesses and arranging for their appearances,
producing copies of the evidence, conducting a proceeding to
compel execution of the request, etc. The negotiators agreed
that the costs ``relating to'' execution that must be borne by
the Requested State do not include expenses associated with the
travel of investigators, prosecutors, counsel for the defense,
or judicial authorities to, for example, question a witness or
take a deposition in the Requested State pursuant to Article
8(3), or travel in connection with Articles 10 and 11.
Article 7--Limitations on Use
Article 4(2)(d) states that the Requesting State must
specify the purpose for which the information or evidence
sought under the Treaty is needed. Paragraph 1 of this article
states that the Central Authority of the Requested State may
require that the information or evidence provided not be used
for any purpose other than that stated in the request without
the prior consent of the Requested State. If such a use
limitation is requested, the Requesting State must comply with
the requirement.
Both delegations agreed that the Central Authority of the
Requested State will not routinely require subsequent use
limitations under paragraph 1. Rather, it is expected that such
limitations will be imposed sparingly, only when there is good
reason to restrict use of the evidence for a purpose not
specified in the request.
Paragraph 2 authorizes the Requested State to request that
the information or evidence it provides to the Requesting State
be kept confidential. This paragraph operates in situations
outside Article 3 where the Requested State has no basis to
deny or limit assistance. For instance, the Requested State may
wish to cooperate with the investigation in the Requesting
State but to limit disclosure of information that would unduly
prejudice the interests of persons not connected with the
matter being investigated. Paragraph 2 permits the request for
confidentiality. If the Requesting State accepts the assistance
with this condition, it is required to make ``best efforts'' to
comply with it. This ``best efforts'' language was used because
the purpose of the Treaty is the production of evidence for use
at trial, and that purpose would be frustrated if the Requested
State could routinely permit the Requesting State to see
valuable evidence, but impose confidentiality restrictions that
prevent the Requesting State from using it. If assistance is
provided with a condition under this paragraph, the U.S. could
deny public disclosure under the Freedom of Information Act.
If the United States Government received evidence under the
Treaty for one prosecution that appeared to be exculpatory to a
defendant in another prosecution, the United States might be
obliged to share the evidence with that defendant in the second
case. Brady v. Maryland, 373 U.S. 83 (1963). Therefore,
paragraph 3 states that nothing in Article 7 shall preclude the
use or disclosure of evidence or information to the extent that
there is an obligation to do so under the Constitution of the
Requesting State in a criminal prosecution. The Requesting
State is required to notify the Requested State before any such
disclosure.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed publicly in accordance with paragraphs
1 or 2, the Requesting State is free to use the evidence for
any purpose. Once evidence obtained under the Treaty has been
revealed in a public trial, that information effectively
becomes part of the public domain, and is likely to become a
matter of common knowledge, perhaps even be described in the
press. The negotiators noted that once this has occurred, it is
practically impossible for the Central Authority of the
Requesting Party to block its use.
It should be noted that under Article 1(4) the restrictions
outlined in Article 7 are for the benefit of the Parties, and
the invocation and enforcement of these provisions are left
entirely to the Parties. If a private person alleges that a
Latvian authority seeks to use information or evidence obtained
from the United States in a manner inconsistent with this
article, the person can inform the Central Authority of the
United States of the allegations for consideration as a matter
between the Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents and records. The compulsion contemplated by this
article can be accomplished by subpoena or any other means
available under the law of the Requested State.
The second sentence of Article 8(1) makes applicable the
criminal laws in the Requested State in situations in which a
person in that State provides false evidence in execution of a
request. This language is essential for Latvia; it provides a
basis, which Latvia would otherwise lack, to prosecute a person
for giving false testimony in the execution of Treaty requests.
The Latvian negotiators gave assurances that, given such
language, Latvia not only could but would prosecute false
statements in connection with testimony under this article. The
negotiators expect that where a falsehood is made in execution
of a request, the Requesting State could ask the Requested
State to prosecute for perjury, and provide the Requested State
with the information or evidence needed to prove the falsehood.
The U.S.-Spain Mutual Legal Assistance Treaty contains a
similar provision. \10\
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\10\ U.S.-Spain Mutual Legal Assistance Treaty, Nov. 20, 1990, art.
8(1).
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Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that persons specified in the request,
including the defendant and his counsel, shall be permitted by
the Requested State to be present and pose questions during the
taking of testimony under this article.
Paragraph 4 deals with claims of immunity, incapacity, and
privilege based on the law of the Requesting State but raised
in the Requested State. The immunities and privileges available
to witnesses under the law of the Requested State are not
affected by paragraph 4. No person will be compelled in the
Requested State to furnish information or evidence if he has a
right not to do so under the law of the Requested State. Thus,
a witness questioned in the United States pursuant to a request
from Latvia, in addition to any applicable constitutional
privilege (e.g., self-incrimination, to the extent applicable
in the context of evidence being taken for foreign
proceedings), may claim a testimonial privilege (e.g.,
attorney-client) legally recognized under United States law. A
witness testifying in Latvia may raise any of the similar
privileges available under Latvian law. However, paragraph 4
does require that if a witness attempts to assert in the
Requested State a privilege that is unique to the Requesting
State, the Requested State will take the desired evidence and
turn it over to the Requesting State along with notice that it
was obtained over a claim of privilege. The applicability of
the privilege can then be determined in the Requesting State,
where the scope of the privilege and the legislative and policy
reasons underlying the privilege are best understood. A similar
provision appears in many of our mutual legal assistance
treaties. \11\
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\11\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra, note 9, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 4,
art. 8(4).
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Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. The second sentence of this paragraph provides for the
admissibility of a certification of the absence or nonexistence
of a record. The third sentence provides that evidence produced
pursuant to the Form A, of Form B certifying the absence or
nonexistence of a record, shall, without additional
authentication, be admissible as evidence to prove the content
of the record or the fact of its absence or nonexistence. This
provision is primarily for the benefit of the United States
inasmuch as it makes such evidence ``admissible'' without the
appearance of a witness located in a foreign country. Of
course, it will be up to the judicial authority presiding over
the U.S. trial to determine whether the evidence will in fact
be admitted. Evidentiary tests other than authentication (such
as relevance, and materiality) still have to be satisfied in
each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government agency or
judicial authority in the Requested State. The phrase
``government agencies and judicial authorities'' includes all
executive, judicial, and legislative units at the federal,
state, and local level in each country.
Paragraph 2 provides that the Requested Party may provide
copies of any records, including documents or information in
any form, that are in the possession of a government department
or agency in that State, but that are not publicly available,
to the same extent and under the same conditions as such copies
would be available to its own law enforcement or judicial
authorities. The Requested State may in its discretion deny a
request pursuant to this paragraph entirely or in part.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty in tax
matters, and such assistance could include tax return
information when appropriate. The United States delegation was
satisfied after discussion that this Treaty is a ``convention
relating to the exchange of tax information'' for purposes of
Title 26, United States Code, Section 6103(k)(4), and the
United States would have the discretion to provide tax return
information to Latvia under this article in appropriate cases.
\12\
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\12\ Under 26 U.S.C. 6103(i) information in the files of the
Internal Revenue Service (generally protected from disclosure under 26
U.S.C. 6103) may be disclosed to federal law enforcement personnel in
the United States for use in a non-tax criminal investigations or
proceedings, under certain conditions and pursuant to certain
procedures. The negotiators agreed that this Treaty (which provides
assistance both for tax offenses and in the form of information in the
custody of tax authorities of the Requested State) is a ``convention .
. . relating to the exchange of tax information'' under Title 26,
United States Code, Section 6103(k)(4), pursuant to which the United
States may exchange tax information with treaty partners. Thus, the
Internal Revenue Service may provide tax returns and return information
to Latvia through this Treaty when, in a criminal investigation or
prosecution, the Latvian authority on whose behalf the request is made
can meet the same conditions required of United States law enforcement
authorities under Title 26, United States Code, Sections 6103(h) and
(i). As an illustration, a Latvian request for tax returns to be used
in a non-tax criminal investigation, in accordance with 26 U.S.C.
6103(i)(1)(A), would have to specify that the Latvian 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 Latvian
criminal statute (not involving tax administration) to which Latvia is
or may be a party.
(ii) any investigation which may result in such a proceeding, or
(iii) any Latvian proceeding pertaining to enforcement of such a
criminal statute to which Latvia is or may be a party. (See 26 U.S.C.
6103(i)(1)(A))
The request would have to be presented to a federal district court
judge or magistrate for an order directing the Internal Revenue Service
to disclose the tax returns as specified at 26 U.S.C. 6103(i)(1)(B).
Before issuing such an order, the judge or magistrate would have to
determine, also in accordance with 26 U.S.C. 6103(i)(1)(B), that:
(i) there is reasonable cause to believe, based upon information
believed to be reliable, 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 Latvian criminal investigation or proceeding concerning such
act, and the information sought to be disclosed cannot reasonably be
obtained, under the circumstances, from another source.
In other words, the Latvian law enforcement authorities seeking tax
returns would be treated as if they were United States law enforcement
authorities--undergo the same access procedure where they would be held
to the same standards.
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Paragraph 3 states that records provided under this article
may be authenticated in accordance with the procedures
specified in the Convention Abolishing the Requirement of
Legalization for Foreign Public Documents. \13\ The absence or
nonexistence of such records shall, upon request, be certified
by an official responsible for maintaining them through the use
of Form C appended to the Treaty. Records authenticated under
this paragraph, or the form certifying the absence or
nonexistence of the records, shall be admissible in evidence in
the Requesting State to prove the content of the records, or
the absence or nonexistence thereof. Thus, the Treaty
establishes a procedure for the admission of foreign official
records by certification without the need for a foreign witness
to appear and testify.
---------------------------------------------------------------------------
\13\ Convention Abolishing the Requirement of Legalization for
Foreign Public Documents, done at The Hague, Oct. 5, 1961. Both the
United States and Latvia are parties to this Convention, under which an
apostille applied to a document by one Party must be accepted by other
Parties as proof of authenticity. The Hague Legalization Convention
permits the Requested State to charge a modest fee for the apostille,
but Latvia's delegation insisted that the Requested State should not
require payment of the apostille fee when the request is made pursuant
to Article 9 of this Treaty, in keeping with Article 6 of this Treaty.
That is why Article 9(3) states that authentication shall be done
``without cost to the Requesting State.''
---------------------------------------------------------------------------
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
whether the evidence will in fact be admitted remains the
decision of the judicial authority presiding over the trial.
Other evidentiary requirement such as relevance or materiality
must still be established.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State or a third State to appear
before an appropriate authority in the other State. The Central
Authority of the Requested State is to notify the Requesting
State of the invitee's response. An appearance in the
Requesting State or third State under this article is not
mandatory, and the prospective witness may refuse the
invitation.
The Requesting State, pursuant to Article 6, is expected to
pay the expenses of such an appearance, and paragraph 2 of
Article 10 provides that the witness shall be informed of the
amount and kind of expenses that the Requesting State will
provide in a given situation. It is assumed that such expenses
would normally include the costs of transportation, room, and
board. The second sentence of paragraph 2 states that a person
who agrees to appear pursuant to this article may ask that the
Requesting State advance money to cover the expenses, and an
advance may be provided through the Embassy or a consulate of
the Requesting State.
Article 10(3) provides that the Central Authority of the
Requesting State may determine that a person appearing in that
State pursuant to this article shall not be subject to service
of process, or be detained or ``subjected to any restriction of
personal liberty'' for acts or convictions that occurred before
the person departed from the Requested State. This
determination does not protect against prosecution, punishment,
or restriction of personal liberty with respect to acts
committed after departure from the Requested State, or against
the filing of a civil suit (as opposed to service of the
process). This article is intended to apply to persons who are
transferred while in custody pursuant to Article 12 and to
those who appear as civilians and are not incarcerated.
Paragraph 4 states that the safe conduct guaranteed in the
preceding paragraph expires seven days after the Central
Authority of the Requesting State has notified the Central
Authority of the Requested State that the person's presence is
no longer required, or if he leaves the territory of the
Requesting State and thereafter returns to it.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the presence
(generally for testimony) in one State of a person in custody
in another State. In some instances, foreign States are willing
and able to ``lend'' incarcerated persons to the Requesting
State, provided the person is carefully guarded while in the
other State and returned to the Requested State when no longer
needed. For example, on occasion the United States has arranged
for consenting federal inmates to be transported to foreign
countries to assist in criminal proceedings. \14\
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\14\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \15\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \16\
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\15\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 8,
art. 26.
\16\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
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Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State if
the person consents and if the Central Authorities of both
States agree. This would also cover situations in which a
person in custody in the United States on a criminal matter has
sought permission to travel to another country to be present at
a deposition being taken there in connection with the case.
\17\
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\17\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a person under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, paragraph (3)(c) specifies that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Paragraph 3(e) makes it clear that when the Requesting
State proposes that a person in custody in the Requested State
be transferred to a third State, the Requesting State shall be
obliged to make all arrangements necessary to comply with this
paragraph's requirements, including the incarceration of the
person while in that third State and the return of the person
to the Requested State.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article because it
is anticipated that the authorities of the two states will deal
with such situations on a case-by-case basis. If the person in
custody is unwilling to be transferred without safe conduct,
and the Receiving State is unable or unwilling to provide
satisfactory assurances in this regard, the person is free to
decline to be transferred.
Article 12--Transit of Persons in Custody
Most modern extradition treaties provide for cooperation in
the transit of persons being extradited, \18\ although the
extradition treaty currently in force between the United States
and Latvia \19\ is silent on this topic. Article 12 is not
focused on the transit of extradited persons. Rather, this
article provides a basis for mutual cooperation with respect to
prisoners who are involved in a criminal investigation or
prosecution other than as extradited fugitives (e.g., as
witnesses appearing to testify or as defendants appearing to be
present at a proceeding).
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\18\ See, e.g., U.S.-Hungary Extradition Treaty, Dec. 1, 1994, art.
19; U.S.-Japan Extradition Treaty, Mar. 3, 1978, art. 15, 31 U.S.T.
892, T.I.A.S. 9625; U.S.-Mexico Extradition Treaty, supra note 9, art.,
20, 31 U.S.T. 5059, T.I.A.S. 9656.
\19\ U.S.-Latvia Extradition Treaty, Oct. 16, 1923, 43 Stat. 1738,
T.S. 677, 9 Bevans 515, 27 L.N.T.S. 371, as amended Oct. 10, 1934, 49
Stat. 3131, T.S. 884, 9 Bevans 554, 158 L.N.T.S. 263.
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Paragraph 1 gives each Party the power to authorize transit
through its territory of a person being transferred to the
other State by a third State. Paragraph 2 obligates each Party
to keep in custody a person in transit during the transit
period. Requests for transit are to contain a description of
the person being transported and a brief statement of the facts
of the case for which the person is sought. Paragraph 3 allows
each Party to refuse transit of its nationals.
Under this article, no advance authorization is needed if
the person in custody is in transit to one of the Parties and
is traveling by aircraft and no landing is scheduled in the
territory of the other. Should an unscheduled landing occur, a
request for transit may be required at that time, and the
Requested State may grant the request if, in its discretion, it
is deemed appropriate to do so. Where transit is granted, the
person in transit shall be kept in custody until such time as
the person may continue in transit out of the Requested State.
Article 13--Location or Identification of Persons or Items
This article requires each 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,
regarding the location of the person or item. 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.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items in third countries. In
all instances, the Requesting State is expected to supply all
available information about the last known location of the
persons or items sought.
Article 14--Service of Documents
Paragraph 1 requires the Requested State to use its ``best
efforts'' to effect service of any document related to any
request for assistance made under the Treaty. ``Best efforts''
varies depending on the information provided in the request, in
accordance with Article 4. It is expected that when the United
States is the Requested State, service under the Treaty will be
made by registered mail (in the absence of any request by
Latvia to follow a specified procedure for service) or by the
United States Marshal's Service in instances in which personal
service is requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 15--Search and Seizure
Where appropriate, the Requested State may search for,
secure, and deliver items needed as evidence, or for other
purposes, for the Requesting State. Article 5(1) empowers
United States courts to issue search warrants to obtain
evidence request by Latvia.
For the United States to be able to execute a search and
seizure under this Article, the Latvian request must provide
information demonstrating ``probable cause,'' as is required by
the Fourth Amendment to the U.S. Constitution. The Latvian
request must contain facts, or be augmented by facts from a
reliable source, that persuade a U.S. judicial authority that
probable cause exists to believe that a crime has been or is
being committed in Latvia and that particularly described
evidence of the crime is located at a particularly described
place to be searched in the United States. A U.S. request to
Latvia would have to satisfy the corresponding evidentiary
standard in Latvia. \20\
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\20\ The Latvian delegation said that there is no general standard
of proof for a search warrant in Latvia, where one judge may order a
search based on evidence solely that another judge would deem
insufficient. The Latvian delegation also said that as a matter of
practice, a Latvian judge asked to issue a search warrant in Latvia for
evidence needed in the U.S. might ask to see a search warrant for that
evidence issued in the U.S. The U.S. delegation explained that our
courts do not issue warrants to search places outside U.S.
jurisdiction.
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Paragraph 2 is designed to establish a chain of custody for
evidence seized pursuant to a request and to provide a method
for proving that chain by certificates admissible in a judicial
proceeding in the Requesting State. The Requested State is
required to maintain a reliable record, from the time of a
seizure, of the ``identity of the item, the integrity of its
condition, and the continuity 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 tracing the route of the item seized (and any change in
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 a reason other than authenticity exists to do
so. 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 not in serious question. For
Latvia, 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
the extent ``deemed necessary.'' This paragraph is not intended
to serve as an impediment to the transfer of items seized. This
article is similar to provisions in many other United States
mutual legal assistance treaties. \21\
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\21\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 4; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 11;
U.S.-Canada Mutual Legal Assistance Treaty, supra, note 9; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 4; U.S.-Spain Mutual Legal Assistance
Treaty, supra note 10; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jan. 6, 1994.
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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 item, including
a document or record, provided by the Requested State pursuant
to the Treaty. Both Parties anticipate that, unless original
records or items of significant intrinsic value are involved,
the Requested State will not usually request return of the
item; however, both Parties recognize that this is a matter
best left to development in practice.
Article 17--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Latvia in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Latvia, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \22\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion, or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the
United States since these offenses are predicate offenses under
U.S. money laundering laws. \23\ Thus, it is a violation of
U.S. criminal law to launder the proceeds of these foreign
fraud or theft offenses when such proceeds are brought into the
United States.
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\22\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\23\ Title 18, United States Code, Section 1956(c)(7)(B).
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If the assets are the proceeds of drug trafficking, it is
especially likely that the Parties will be able and willing to
help one another. Title 18, United States Code, Section
981(a)(1)(B), allows for the forfeiture to the United States of
property ``which represents the proceeds of an offense against
a foreign nation involving the manufacture, importation, sale,
or distribution of a controlled substance (as such term is
defined for the purposes of the Controlled Substance Act)
within whose jurisdiction such offense or activity would be
punishable by death or imprisonment for a term exceeding one
year if such act or activity had occurred within the
jurisdiction of the United States.'' This is consistent with
the laws in other countries, such as Switzerland and Canada;
there is a growing trend among nations toward enacting
legislation of this kind in the battle against narcotics
trafficking. \24\ The United States delegation expects that
Article 16 of the Treaty will enable this legislation to be
even more effective.
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\24\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\25\ Paragraph 3 is consistent with this framework, and will
enable a Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other Party, at
the former's discretion and to the extent permitted by their
respective laws.
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\25\ See Title 18, United States Code, Section 981 (i)(1).
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Article 18--Compatibility with Other Treaties
This article clarifies that assistance and procedures
provided by this Treaty shall not prevent either Party from
providing assistance under other applicable international
agreements. Article 18 also leave intact recourse to any
assistance available under the internal laws of either State.
Thus, the provisions of United States and Latvia law on letters
rogatory remain undisturbed, and the Treaty does not alter any
pre-existing agreements concerning investigative assistance.
\26\
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\26\ See e.g., U.S.-Latvia Memorandum of Understanding concerning
Cooperation in the Pursuit of Nazi War Criminals, Sept. 11, 1992.
---------------------------------------------------------------------------
Article 19--Consultation
Experience has shown that as the Parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Parties will share those ideas with one another, and
encourages them to agree on the implementation of such
measures. Practical measures of this kind might include methods
of keeping each other informed of the progress of
investigations and cases in which Treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Similar provisions are contained in recent
United States Mutual legal assistance treaties. \27\ It is
anticipated that the Central Authorities will conduct regular
consultations pursuant to this article.
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\27\ See e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 4, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 9, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 21, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 4, art. 18.
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Article 20--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and the Republic of Lithuania on Mutual Legal Assistance in Criminal
Matters
On January 16, 1998, the Attorney General of the United
States and the Minister of Foreign Affairs of the Republic of
Lithuania signed a Treaty on Mutual Legal Assistance in
Criminal Matters (``the Treaty''). In recent years, the United
States has signed 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 with Lithuania
is the second mutual legal assistance treaty that we have
concluded with a republic of the former Soviet Union.
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 Lithuanian
delegation advised that under Lithuanian jurisprudence, the
terms of the Treaty would take precedence over silence in
Lithuanian domestic law and, in case of a conflict between the
Treaty and future Lithuanian domestic law, the Treaty would
control.
The Treaty with Lithuania is a major advance in the formal
law enforcement relationship between the two countries and is
expected to be a valuable weapon for the United States in its
efforts to combat transnational terrorism, international drug
trafficking, and Russian organized crime.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Lithuania,
and other legal measures taken prior to the filing of formal
charges in either State. \1\ The term ``proceedings'' was
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
\2\ It was also agreed that since the phrase ``proceedings
related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \3\ yet such proceedings are covered by the
Treaty.
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\1\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Lithuania under
the Treaty in connection with investigations prior to charges being
filed in Lithuania. Prior to the 1996 amendments to Section 1782, some
U.S. courts had interpreted that Section to require that assistance be
provided in criminal matters only if formal charges have already been
filed abroad, or are ``imminent,'' or ``very likely.'' McCarthy, ``A
Proposed Uniform Standard for U.S. Courts in Granting Requests for
International Judicial Assistance,'' 15 Fordham Int'l Law J. 772
(1991). The 1996 amendment eliminates this problem, however, by
amending subsec. (a) to state ``including criminal investigation
conducted before formal accusation.'' In any event, this Treaty was
intentionally written to cover criminal investigations that have just
begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\2\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\3\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Paragraph 3 specifies that the principle of double or dual
criminality--that the obligation of the Requested State to
provide assistance only attaches where the criminal conduct
committed in the Requesting 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.
During the negotiations, the Lithuanian delegation provided
assurances that assistance would be available under the Treaty
to the United States in criminal matters involving such
offenses as conspiracy; drug trafficking, including continuing
criminal enterprise (Title 21, United States Code, Section
848); offenses under the racketeering statutes (Title 18,
United States Code, Sections 1961-1968); money laundering;
terrorism; tax crimes, including tax evasion and tax fraud;
crimes against environmental protection laws; antitrust
violations; and alien smuggling.
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \4\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Lithuania by
letters rogatory, an avenue of international assistance that
the Treaty leaves undisturbed. Similarly, the paragraph
provides that the Treaty is not intended to create any right in
a private person to suppress or exclude evidence provided
pursuant to the Treaty, or to impede the execution of a
request.
---------------------------------------------------------------------------
\4\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
Article 2(1) requires that each Party shall ``seek and
obtain assistance'' under the Treaty through their respective
Central Authorities. The Attorney General has delegated the
authority to handle the duties of Central Authority under
mutual assistance treaties to the Assistant Attorney General in
charge of the Criminal Division. \5\ The Central Authority for
the Republic of Lithuania will be the Office of the Prosecutor
General and the Ministry of Justice. \6\ This dual Central
Authority arrangement for Lithuania reflects the importance and
independence of the Office of the Prosecutor General in the
Lithuanian criminal justice system. Both the Lithuanian
Constitution and the Lithuanian Criminal Code designate
distinct and separate responsibilities and duties to the Office
of the Prosecutor General and the Ministry of Justice. The
Prosecutor's Office is responsible for handling requests to and
from foreign authorities for assistance in criminal matters at
the investigation stage, while the Ministry of Justice is
responsible for handling requests to and from foreign
authorities for assistance in criminal matters at the
prosecution stage. The Lithuanian delegation informed that, in
practice, the U.S. Central Authority could send all requests to
the Office of the Prosecutor General, since most foreign
requests fall within the investigative stage. \7\ If the
request falls under the jurisdiction of the Lithuanian Ministry
of Justice, however, the Office of the Prosecutor General will
promptly forward the request to the Ministry of Justice for
execution.
---------------------------------------------------------------------------
\5\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
\6\ Similarly, Article 2(2) of the U.S.-Hungary Mutual Legal
Assistance Treaty, Dec. 1, 1994, provides that the Hungarian Minister
of Justice and Office of the Chief Public Prosecutor will serve as a
dual Central Authority.
\7\ See pages 240-241, infra, for additional discussion of the
respective roles of the Prosecutor General's office and the Ministry of
Justice.
---------------------------------------------------------------------------
Article 2(2) provides that the U.S. Central Authority will
``make'' requests on behalf of federal, state, and local
``prosecutors, investigators with criminal law enforcement
jurisdiction, and agencies and entities with specific statutory
or regulatory authority to refer matters for criminal
prosecution'' in the United States. The Lithuanian Central
Authority will make requests on behalf of Lithuanian
prosecutors and courts. Although the Central Authorities will
exercise differing degrees of control and responsibility over
the preparation of such requests (as to both form and content),
only the Central Authorities will make the requests.
Article 2(3) specifies that the Central Authority for the
Requesting State shall use its ``best efforts'' not to make a
request if, in its view, the request is either: (a) based on
offenses that do not have serious consequences; or (b) the
extent of the assistance to be requested is unreasonable in
view of the sentence expected upon conviction. This provision
is intended to give the Central Authorities a firm basis on
which to refuse to submit a request on behalf of a competent
authority because of the insignificance or inappropriateness of
the request.
Article 2(4) provides that the Central Authorities shall
communicate directly with one another for purposes of making
and executing requests.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
During negotiations, the Lithuanian delegation informed
that they do not have a separate military code; rather,
military law is covered in a section of the single Lithuanian
criminal code dealing with ``ordinary criminal law.'' Since the
Lithuanians have no separate military law, per se, the
Lithuanian delegation noted its concern that Lithuania would
never have a basis on which to deny a request for a ``military
offense.'' The negotiating delegations, thus, agreed to
distinguish between ``military law,'' which is encompassed
within ``ordinary criminal law,'' and ``military criminal
law.'' By using the term ``military criminal law,'' the
Lithuanians will have the same discretion to deny a request on
this very narrow basis that the United States will have. That
is, the delegations understand this provision to provide that a
Requested State will have discretion to deny a request under
this provision only when there exists a certain criminal
conduct that would be an offense under military criminal law,
but would not be an offense under ordinary law. For example,
showing disrespect to a senior military officer would be a
purely military criminal offense and, thus, a basis on which
the Requested State would have discretion to deny assistance.
On the other hand, if a military officer murders another
military officer, this would be a military offense as well as
an offense under ordinary law and, thus, the Requested State
would not have discretion to deny assistance under this
provision. As a practical matter, the negotiating delegations
noted that they anticipate that this provision will rarely, if
ever, be used as a basis for denial of a request.
Paragraph 1(b) permits denial of a request if it involves a
political offense. \8\ It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
---------------------------------------------------------------------------
\8\ See Section 18(2)(a) and 18(2)(b), Lithuania Mutual Assistance
Act, 1992.
---------------------------------------------------------------------------
Paragraph (1)(c) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the sovereignty, security or similar essential
interests of that State. All United States mutual legal
assistance treaties contain provisions allowing the Requested
State to decline to execute a request if execution would
prejudice its essential interests.
The delegations agreed that the word ``security'' would
include cases where assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the Department of Justice, in its role
as Central Authority for the United States, would work closely
with the Department of State and other Government agencies to
determine whether to execute a request that falls into this
category.
The delegations agreed that the phrase ``essential
interests'' is intended to limit narrowly the class of cases in
which assistance may be denied. It is not enough that the
Requesting State's case is one that would be inconsistent with
public policy had it been brought in the Requested State.
Rather, the Requested State must be convinced that execution of
the request would seriously conflict with significant public
policy. An example is a request involving prosecution by the
Requesting State of conduct that occurred in the Requested
State that is constitutionally protected in the Requested
State.
It was agreed that ``essential interests'' may include
interests unrelated to national military or political security,
and may be invoked if the execution of a request would violate
essential United States interests related to the fundamental
purposes of the Treaty. For example, one fundamental purpose of
the Treaty is to enhance law enforcement cooperation. The
attainment of that goal would be hampered if sensitive law
enforcement information available under the Treaty were to fall
into the wrong hands. Accordingly, the United States Central
Authority may invoke paragraph 1(c) to decline to provide
sensitive or confidential drug-related information pursuant to
a Treaty request whenever it determines, after appropriate
consultation with law enforcement, intelligence, and foreign
policy agencies, that a senior foreign government official who
likely will have access to the information is engaged in or
facilitates the production or distribution of illegal drugs,
and is using the request to the prejudice of a United States
investigation or prosecution. \9\
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\9\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884 (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2d Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, Department of
Justice).
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Paragraph 1(d) permits the denial of a request if it is not
made in substantial compliance with Article 4 of the Treaty.
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \10\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\10\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the grounds for any denial of
assistance. This ensures that, when a request is only partly
executed, the Requested State will provide some explanation for
not providing all of the information or evidence sought. This
should avoid misunderstandings, and enable the Requesting State
to better prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations.'' A request in
another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise, and the request shall be in the language or
translated into the language of the Requested State unless
otherwise agreed.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. If the Central Authority is not competent to
execute the request, it must promptly transmit the request to a
competent authority for execution. For the Republic of
Lithuania, the Central Authority will determine whether (1) the
request complies with the terms of the Treaty, and (2) its
execution would prejudice the sovereignty, security, or other
essential interests of Lithuania. If the request merits
execution, the Central Authority will transmit the request to
an appropriate department within the Office of the Prosecutor
General or the Ministry of Justice for that purpose.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the competent
authorities of the Requested State to do everything within its
power and take whatever action would be necessary to execute
the request. This provision is not intended or understood to
authorize the use of the grand jury in the United States for
the collection of evidence pursuant to a request from
Lithuania. Rather, it is anticipated that when a request from
Lithuania requires compulsory process for execution, the United
States Department of Justice would ask a federal court to issue
the necessary process under Title 28, United States Code,
Section 1782, and the provisions of the Treaty. \11\
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\11\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) reads ``[t]he Courts of
the Requested State shall have authority to issue subpoenas,
search warrants, or other orders necessary to execute the
request.'' In Lithuania, courts, as well as public prosecutors,
are empowered under Lithuanian law to ``issue subpoenas, search
warrants, or other orders necessary to execute the request.''
In Lithuania, execution of requests will be almost
exclusively within the province of the Office of the Prosecutor
General, Ministry of Justice, and the courts, whereas in the
United States, execution can be entrusted to any competent
authority in any branch of government, federal or state.
Nevertheless, when a request from Lithuania requires compulsory
process for execution, it is anticipated that the competent
authority in the United States will issue the necessary
compulsory process itself, \12\ or ask a Court to do so.
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\12\ For example, the Securities and Exchange Commission has the
power to issue compulsory process to obtain evidence to execute a
request for assistance from certain foreign authorities.
---------------------------------------------------------------------------
Paragraph 2 reconfirms that the Central Authority of the
Requested State shall arrange for requests from the Requesting
State to be presented to the appropriate authority in the
Requested State for execution. In practice, the Central
Authority for the United States will transmit the request with
instructions for 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 will select an appropriate representative,
generally a federal prosecutor, to present the matter to a
court. Thereafter, the prosecutor will represent the United
States, acting to fulfill its obligations to Lithuania under
the Treaty by executing the request. Upon receiving the court's
appointment as a commissioner, the prosecutor/commissioner will
act as the court's agent in fulfilling the court's
responsibility to do ``everything its] power'' to execute the
request. In short, the prosecutor may only seek permission from
a court to exercise the court's authority in using compulsory
measures if he receives permission from the court to do so.
The situation with respect to Lithuania is different. The
U.S. Central Authority will transmit all requests to the
Lithuanian Office of the Public Prosecutor. If the case is in
the investigative stage, the Office of the Public Prosecutor
will assign the request to an appropriate department within
that office. Public prosecutors in Lithuania have authority to
order compulsory process, including, but not limited to,
requiring a witness to appear to provide testimony, issuing
subpoenas to compel the production of documents or other
evidence, and ordering a search and seizure. The exercise of
this authority by Lithuanian prosecutors does not require the
consent of a court. In other words, unlike in the United
States, a Lithuanian prosecutor may execute a foreign request
seeking compulsory process without the assistance of the
Lithuanian courts.
If the request to Lithuania relates to an indicted case,
the Office of the Prosecutor General of Lithuania will transmit
the request to the Ministry of Justice for forwarding to an
appropriate court with general advice regarding Lithuania's
treaty obligation and the general evidentiary and procedural
requirements of the United States.
Paragraph 3 provides that requests shall be executed in
accordance with the laws of the Requested State except to the
extent that the Treaty provides otherwise. Thus, for example,
the provision in Article 8(4) that claims of privilege under
the law of the Requesting State are to be referred back to the
courts of the Requesting State would take precedence over a
contrary provision in domestic law. To illustrate, 28 U.S.C.
1782 permits, as a basis for not compelling testimony or
production of evidence, deference to privileges legally
applicable in a Requesting State. To the extent that this
provision were considered to be in conflict with the treaty,
the treaty provision would prevail.
The negotiators discussed the procedures applicable in
their respective States in executing requests for legal
assistance from the other and agreed to accommodate any
specific procedure requested by the other to the extent
permitted under the laws of the Requested State or as discussed
with respect to specific treaty provisions. (See, e.g., Article
8.)
The second sentence of Paragraph 3 makes clear that the
Treaty does not authorize the use in the Requested State of
methods of execution that would be otherwise prohibited in the
Requested State.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested Party may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the facts of the offenses and the procedural history of the
case'' as required by Article 4(2)(b). Therefore, Paragraph 5
of Article 5 enables the Requesting State to call upon the
Requested State to keep the information in the request
confidential. \13\ If the Requested State cannot execute the
request without disclosing the information in question (as
might be the case if execution requires a public judicial
proceeding in the Requested State), or if for some other reason
this confidentiality cannot be assured, the Treaty obliges the
Requested State to so indicate, thereby giving the Requesting
State an opportunity to withdraw the request rather than risk
jeopardizing an investigation or proceeding by public
disclosure of the information.
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\13\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.- Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US-Philippines Mutual Legal
Assistance Treaty, art. 5(5).
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Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is delayed or postponed, the Central
Authority of the Requested State must also explain the reasons
to the Central Authority of the Requesting State. For example,
if the evidence sought could not be located, the Central
Authority of the Requested State would report that fact to the
Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \14\
Article 6 does not, however, oblige the Requested State to pay
fees of experts, translation, interpretation and transcription
costs, and allowances and expenses related to travel of persons
traveling either in the Requested State for the convenience of
the Requesting State or pursuant to Articles 10 and 11.
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\14\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 13, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 13, art. 6.
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Costs ``relating to'' execution means the costs normally
incurred in transmitting a request to the executing authority,
notifying witnesses and arranging for their appearances,
producing copies of the evidence, conducting a proceeding to
compel execution of the request, etc. The negotiators agreed
that costs ``relating to'' execution to be borne by the
Requested State do not include expenses associated with the
travel of investigators, prosecutors, counsel for the defense,
or judicial authorities to, for example, question a witness or
take a deposition in the Requested State pursuant to Article
8(3), or travel in connection with Articles 10 and 11.
Paragraph 2 of this article provides that if it becomes
apparent during the execution of a request that complete
execution of a request would require extraordinary expenses,
then the Central Authorities shall consult to determine the
terms and conditions under which execution may continue.
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(e) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it. If assistance
is provided with a condition under this paragraph, the U.S.
could deny public disclosure under the Freedom of Information
Act.
Situations could arise in which the United States received
information or evidence under the Treaty with respect to one
case that was exculpatory of a defendant in another case and
might be obliged to share the evidence or information with the
defense. Brady v. Maryland, in 373 U.S. 83 (1963). Therefore,
Paragraph 3 provides that nothing in Article 7 would preclude
the use or disclosure of information or evidence to the extent
that such information or evidence is exculpatory to a defendant
in a criminal prosecution.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
paragraphs 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Lithuanian authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Lithuanian public prosecutors and courts and U.S. courts
have the power to compel testimony or documents from
individuals or companies in connection with both domestic and
foreign proceedings. In the United States, a prosecutor asks a
U.S. court to appoint him as a commissioner empowering him to
execute subpoenas on behalf of the foreign authority. The
procedure in the United States as described is used regardless
of whether the request concerns a case still at the
investigative stage or one that has already been indicted. In
Lithuania, the authority of the public prosecutor to issue
subpoenas and to use other compulsory measures exists
independently of the courts. Therefore, in Lithuania, where the
request concerns a case at the investigative stage and is
handled by the Office of the Prosecutor General, the public
prosecutor may use his power to issue subpoenas to compel the
production of documents or other evidence on behalf of the
foreign authority. Where the request concerns an indicted case
and is handled by a court, the court uses its power to issue
subpoenas to compel the production of documents or other
evidence on behalf of the foreign authority.
The criminal laws in both States contain provisions that
sanction the production of false evidence. The second sentence
of Paragraph 1 explicitly states that the criminal laws in the
Requested State shall apply in situations where a person in
that State provides false evidence in execution of a request.
The negotiators expect that were any falsehood made in
execution of a request, the Requesting State could ask the
Requested State to prosecute for perjury, and provide the
Requested State with the information or evidence needed to
prove the falsehood.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article.
The Lithuanian delegation advised that a deposition on
behalf of the United States would usually take place before a
prosecutor, but sometimes before a court. A foreign deposition
that takes place in Lithuania will differ depending on whether
the questioning is conducted before a court versus a public
prosecutor. The U.S. delegation was told that 99% of requested
depositions in Lithuania will take place before a public
prosecutor. When a deposition is scheduled to take place before
a public prosecutor, the procedure is much more liberal and
flexible and, thus, a public prosecutor might allow a U.S.
prosecutor and defense counsel to pose questions directly to
the witnesses. When a deposition is scheduled to take place
before a Lithuanian court, however, the rules are stricter and
questioning of the witnesses could only be done by a Lithuanian
prosecutor, defense counsel, or judge on behalf of the U.S.
parties. The Lithuanian delegation assured that there is no
Lithuanian provision of law that would prohibit a U.S.
prosecutor, defense counsel, or defendant from being present,
regardless of whether the proceeding is before a Lithuanian
court or public prosecutor. Moreover, a public prosecutor
essentially has the same authority as a Lithuanian court for
purposes of conducting a foreign deposition, i.e., the public
prosecutor could compel testimony or evidence, place someone
under oath subject to penalty of perjury, etc. In summary,
neither delegation foresaw a problem in accommodating the needs
of confrontation under either system.
The Lithuanian negotiators also assured the U.S. delegation
that a stenographer could be present at depositions in
Lithuania.
The presence of a stenographer is generally critical to
preserve testimony of witnesses inasmuch as the 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. The United States practice is intended, among
other things, to allow the trier of fact to receive testimony,
to the extent possible, as if the witnesses were present at the
United States court proceeding.
Paragraph 4 permits a witness whose testimony or evidence
is sought to assert a claim of immunity, incapacity, or
privilege under the laws of the Requesting State. The executing
authority will note the asserted claim made under the law of
the Requesting State, but defer to the appropriate authority in
the Requesting State to rule on the merits. The taking of
testimony or evidence, thus, can continue in the Requested
State without delaying or postponing the proceeding whenever
issues involving the law of the Requesting State arise. Both
States recognize the privilege of witnesses against self-
incrimination. The Lithuanian delegation also informed some of
the privileges available under Lithuanian law include a doctor-
patient privilege and an attorney-client privilege. There is no
banker-client privilege in Lithuania.
Paragraph 5 is primarily for the benefit of the United
States. The United States evidentiary system requires that
evidence that is to be used as proof 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 ``[e]vidence produced . . .
pursuant to this Article,'' the negotiators focused on and were
primarily concerned with business records. In order to ensure
the United States that business records provided by Lithuania
pursuant to the Treaty could be authenticated in a manner
consistent with existing U.S. law, the negotiators crafted Form
A to track the language of Title 18, United States Code,
Section 3505, the foreign business records authentication
statute. If the Lithuanian authorities properly complete, sign,
and attach Form A to executed documents, or submit Form B
certifying the absence or non- existence of business records, a
U.S. judge may admit the records into evidence without the
appearance at trial of a witness. The admissibility provided by
this paragraph provides for an exception to the hearsay rule;
however, admissibility extends only to authenticity and not to
relevance, materiality, etc., of the evidence; whether the
evidence is, in fact, admitted is a determination within the
province of the judicial authority presiding over the
proceeding for which the evidence is provided.
Article 9--Official Records
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by an executive, legislative
or judicial authority in the Requested State.
Paragraph 2 provides that the Requested State may provide
copies of any records, including documents or information in
any form, that are in the possession of an executive,
legislative, or judicial authority in that State, but that are
not publicly available, to the same extent and under the same
conditions as such copies would be available to its own law
enforcement or judicial authorities. The Requested State may in
its discretion deny a request pursuant to this paragraph
entirely or in part.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty in tax
matters, and such assistance could include tax return
information when appropriate. The United States delegation was
satisfied after discussion that this Treaty is a ``convention
relating to the exchange of tax information'' for purposes of
Title 26, United States Code, Section 6103(k)(4), and the
United States would have the discretion to provide tax return
information to Lithuania under this article in appropriate
cases. \15\
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\15\ Under 26 U.S.C. 6103(i) information in the files of the
Internal Revenue Service (generally protected from disclosure under 26
U.S.C. 6103) may be disclosed to federal law enforcement personnel in
the United States for use in a non-tax criminal investigations or
proceedings, under certain conditions and pursuant to certain
procedures. The negotiators agreed that this Treaty (which provides
assistance both for tax offenses and in the form of information in the
custody of tax authorities of the Requested State) is a ``convention .
. . relating to the exchange of tax information'' under Title 26,
United States Code, Section 6103(k)(4), pursuant to which the United
States may exchange tax information with treaty partners. Thus, the
Internal Revenue Service may provide tax returns and return information
to Lithuania through this Treaty when, in a criminal investigation or
prosecution, the Lithuanian authority on whose behalf the request is
made can meet the same conditions required of United States law
enforcement authorities under Title 26, United States Code, Sections
6103(h) and (i). As an illustration, a Lithuanian request for tax
returns to be used in a non-tax criminal investigation, in accordance
with 26 U.S.C. 6103(i)(1)(A), would have to specify that the Lithuanian
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 Lithuanian
criminal statute (not involving tax administration) to which Lithuania
is or may be a party.
(ii) any investigation which may result in such a proceeding, or
(iii) any Lithuanian proceeding pertaining to enforcement of such a
criminal statute to which Lithuania is or may be a party. (See 26
U.S.C. 6103(i)(1)(A))
The request would have to be presented to a federal district court
judge or magistrate for an order directing the Internal Revenue Service
to disclose the tax returns as specified at 26 U.S.C. 6103(i)(1)(B).
Before issuing such an order, the judge or magistrate would have to
determine, also in accordance with 26 U.S.C. 6103(i)(1)(B), that:
(i) there is reasonable cause to believe, based upon information
believed to be reliable, 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 Lithuanian criminal investigation or proceeding concerning
such act, and the information sought to be disclosed cannot reasonably
be obtained, under the circumstances, from another source.
In other words, the Lithuanian law enforcement authorities seeking
tax returns would be treated as if they were United States law
enforcement authorities--undergo the same access procedure where they
would be held to the same standards.
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Paragraph 3 is primarily for the benefit of the United
States. It provides for the authentication of records produced
pursuant to this Article by an executive, legislative or
judicial authority responsible for their maintenance. Such
authentication is to be effected through the use of Form C
appended to the Treaty. If the Lithuanian authorities properly
complete, sign, and attach Form C to executed documents, or
submit Form D certifying the absence or non-existence of such
records, a U.S. judge may admit the records into evidence as
self-authenticating under Rule 902(3) of the Federal Rules of
Evidence. The admissibility provided by this paragraph provides
for an exception to the hearsay rule; however, admissibility
extends only to authenticity and not to relevance, materiality,
etc., of the evidence. Whether the evidence is, in fact,
admitted is a determination within the province of the judicial
authority presiding over the proceeding for which the evidence
is provided.
Article 10--Appearance Outside the Requested State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State or to a third State to appear
before an appropriate authority there. It shall notify the
Requesting State of the invitee's response. An appearance in
the Requesting State or in a third State under this article is
not mandatory, and the invitation may be refused by the
prospective witness.
Paragraph 2 provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided. Paragraph 2 also
provides that the person who agrees to travel to the Requesting
State may request and receive an advance for expenses. The
advance may be provided through the embassy or a consulate of
the Requesting State.
Paragraph 2 provides that the Central Authority of the
Requesting State may, in its discretion, determine that a
person appearing in the Requesting State pursuant to this
Article shall not be subject to service of process, or be
detained or subjected to any restriction of personal liberty,
by reason of any acts or convictions that preceded the person's
departure from the Requested State. Most U.S. mutual legal
assistance treaties anticipate that the Central Authority will
determine whether to extend such safe conduct. This ``safe
conduct'' is limited to acts or convictions that preceded the
witness's departure from the Requested State. It is understood
that this provision would not prevent the prosecution of a
person for perjury or any other crime committed while in the
Requesting State.
Paragraph 4 imposes on the safe conduct provided in the
article a time limitation of seven days, which begins to run
after a competent authority of the Requesting State has
notified the person appearing pursuant to the Treaty that the
person's presence is no longer required and that person, being
free to leave, has not left or, having left, has voluntarily
returned.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \16\
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\16\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \17\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \18\
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\17\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
10, art. 26.
\18\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
This provision is also consistent with Sections 10 and 23, Lithuania
Mutual Assistance Act, 1992.
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Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State if
the person consents and if the Central Authorities of both
States agree. This would also cover situations in which a
person in custody in the United States on a criminal matter has
sought permission to travel to another country to be present at
a deposition being taken there in connection with the case.
\19\
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\19\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3(a) 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,
unless otherwise agreed by both Central Authorities.
Paragraph 3(b) states that the transferred person shall not
be required to testify in proceedings not specified in the
request, unless he consents to do so.
Paragraph 3(c) provides that the receiving State must
return the transferred person to the custody of the sending
State as soon as circumstances permit or as otherwise agreed by
the Central Authorities. The transferred person need not
consent to the return to the sending State, only to the
original transfer.
Paragraph 3(d) 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 Lithuania to the
United States and files a habeas corpus in an attempt to
prevent a return to Poland in the absence of an extradition
request.
Paragraph 3(e) states that the person transferred will
receive credit in the sending State for the time in custody in
the receiving State.
Paragraph 3(f) provides that, where the receiving State is
a third state, the Requesting State shall make all arrangements
necessary to meet the requirements of this paragraph.
Paragraph 4 states that safe conduct for the transferred
person may be provided for by the Central Authority of the
receiving State under the same terms set forth in Article 10,
subject to the conditions set forth in paragraph 3 of this
article.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State.
\20\ The extent of such efforts will vary, of course, depending
on the quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
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\20\ This is consistent with Lithuania law. See Section 20,
Lithuania Mutual Assistance Act, 1992.
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Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Lithuania to follow a
specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \21\ This article
creates a formal framework for handling such requests.
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\21\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984).
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Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Lithuania will have to be supported by a
showing of probable cause for the search. A United States
request to Lithuania would have to satisfy the corresponding
evidentiary standard there, which is ``a reasonable basis to
believe'' that the specified premises contains articles likely
to be evidence of the commission of an offense.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form E appended to this Treaty, the identity
of the item, the continuity of custody, and any changes in its
condition.
The article also provides that the certificates describing
continuity of custody will be admissible in evidence in the
Requesting State as proof of the truth of the matters set forth
therein.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \22\
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\22\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, Dec.
4, 1990; U.S.-Bahamas Mutual Legal Assistance Treaty; U.S.-Canada
Mutual Legal Assistance Treaty, supra note 13; U.S.-Hungary Mutual
Legal Assistance Treaty, supra, note 6; U.S.-Korea Mutual Legal
Assistance Treaty, Nov. 23, 1993; U.S.- Panama Mutual Legal Assistance
Treaty, Apr. 11, 1991; U.S.- Philippines Mutual Legal Assistance
Treaty, supra note 13; U.S.- Spain Mutual Legal Assistance Treaty, Nov.
20, 1990; U.S.-United Kingdom Mutual Legal Assistance Treaty, Jan. 6,
1994.
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Paragraph 4 obligates the Central Authority of the
Requested State to use its best efforts to obtain any necessary
approval for the transfer of items where such approval is
required under the laws of that State concerning import,
export, or other transfer of items. This provision was intended
primarily to assist the U.S. authorities in obtaining the
transfer of items without unnecessary delays that might
otherwise be encountered under Lithuanian import and export
laws.
Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. The delegations understood
that this requirement would be invoked only if the Central
Authority of the Requested State specifically requests it at
the time that the items are delivered to the Requesting State.
It is anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
The Treaty will enhance the efforts of both the United
States and Lithuania in combating narcotics trafficking. One
significant strategy in this effort is action by United States
authorities to seize and confiscate money, property, and other
proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Lithuania, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \23\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the U.S.
since these offenses are predicate offenses under U.S. money
laundering laws. \24\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
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\23\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\24\ Title 18, United States Code, Section 1956(c)(7)(B).
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If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B) allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \25\ The United States delegation
expects that Article 16 of the Treaty will enable this
legislation to be even more effective.
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\25\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \26\
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\26\ In Lithuania, unlike the U.S., the law does not currently
allow for civil forfeiture. However, Lithuania law does permit
forfeiture in criminal cases, and ordinarily a defendant must be
convicted in order for Lithuania to confiscate the defendant's
property.
---------------------------------------------------------------------------
Under Lithuanian law, forfeiture can occur in two ways. In
one instance, a Lithuanian prosecutor can issue a forfeiture
order, which is finalized by a court, thereby allowing him to
seize and forfeit criminal proceeds and instrumentalities of an
offense committed by a person who has been charged with that
offense. If the person, ultimately, is acquitted, then the
Lithuanian authorities must return the property to that person.
In the second instance, the Lithuanian criminal code provides
that forfeiture may occur as punishment for a crime. The
Lithuanian Constitutional Court has found that for forfeiture
to be used as part of a punishment for a criminal offense, the
offense must be a serious one.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\27\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
---------------------------------------------------------------------------
\27\ See Title 18, United States Code, Section 981 (i)(1).
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Lithuania does not prohibit sharing and, thus, the
Lithuanian delegation stated that it thought that Lithuanians
could share a percentage of forfeited proceeds with the United
States on a case-by-case basis.
Article 17--Compatibility with Other Treaties
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Lithuania law on letters rogatory completely undisturbed,
and would not alter any pre-existing agreements concerning
investigative assistance. \28\
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\28\ See e. g., the U.S.-Lithuania Agreement for the Exchange of
Information With Respect to Taxes, Nov. 3, 1984, T.I.A.S. 11203.
---------------------------------------------------------------------------
Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \29\ It
is anticipated that the Central Authorities will conduct
regular consultations pursuant to this article.
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\29\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 13, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 13, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 22, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra, note 22.
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Article 19--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 provides that this Treaty shall enter into
force upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty will be terminated six
months from the date that a Party receives written notification
from the other. Similar requirements are contained in our
treaties with other countries.
Technical Analysis of the Treaty Between the United States of America
and Saint Lucia on Mutual Legal Assistance in Criminal Matters
On April 18, 1996, the United States signed a treaty with
Saint Lucia 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 expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking in
the strategically important eastern Caribbean.
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. Saint Lucia
plans to enact implementing legislation for the Treaty, as it
currently has no specific mutual legal assistance law in force.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Saint
Lucia, and other legal measures taken prior to the filing of
formal charges in either State. \1\ The term ``proceedings''
was intended to cover the full range of proceedings in a
criminal case, including such matters as bail and sentencing
hearings. \2\ It was also agreed that since the phrase
``proceedings related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature, \3\ yet such proceedings are covered by the
Treaty.
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\1\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Saint Lucia under
the Treaty in connection with investigations prior to charges being
filed in Saint Lucia. Prior to the 1996 amendments to Title 28, United
States Code, Section 1782, some U.S. courts had interpreted that
provision to require that assistance be provided in criminal matters
only if formal charges have already been filed abroad, or are
``imminent,'' or ``very likely.'' McCarthy, ``A Proposed Uniform
Standard for U.S. Courts in Granting Requests for International
Judicial Assistance,'' 15 Fordham Int'l Law J. 772 (1991). The 1996
amendment eliminates this problem, however, by amending subsec. (a) to
state ``including criminal investigation conducted before formal
accusation.'' In any event, this Treaty was intentionally written to
cover criminal investigations that have just begun as well as those
that are nearly completed; it draws no distinction between cases in
which charges are already pending, ``imminent,'' ``very likely,'' or
``very likely very soon.'' Thus, U.S. courts should execute requests
under the Treaty without examining such factors.
\2\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\3\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this article, however, makes it clear that there is no
general requirement of dual criminality under this Treaty.
Thus, assistance may be provided even when the criminal matter
under investigation in the Requesting State would not be a
crime in the Requested State ``[e]xcept as otherwise provided
in this Treaty,'' a phrase which refers to Article 3(1)(e),
under which the Requested State may, in its discretion, require
dual criminality for a request under Article 14 (involving
searches and seizures) or Article 16 (involving asset
forfeiture matters). Article 1(3) is important because United
States and Saint Lucia criminal law differ, and a general dual
criminality rule would make assistance unavailable in many
significant areas. This type of limited dual criminality
provision is found in other U.S. mutual legal assistance
treaties. \4\ During the negotiations, the United States
delegation received assurances that assistance would be
available under the Treaty to the United States in
investigations of such offenses as conspiracy; drug
trafficking, including continuing criminal enterprise (Title
21, United States Code, Section 848); offenses under the
racketeering statutes (Title 18, United States Code, Section
1961-1968); money laundering; tax crimes, including tax evasion
and tax fraud; crimes against environmental protection laws;
and antitrust violations.
---------------------------------------------------------------------------
\4\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \5\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Saint Lucia by
letters rogatory, an avenue of international assistance that
the Treaty leaves undisturbed. Similarly, the paragraph
provides that the Treaty is not intended to create any right in
a private person to suppress or exclude evidence provided
pursuant to the Treaty, or to impede the execution of a
request.
---------------------------------------------------------------------------
\5\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Saint Lucia on behalf of federal agencies,
state agencies, and local law enforcement authorities in the
United States. The Saint Lucian Central Authority would make
all requests emanating from officials in Saint Lucia.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \6\
Paragraph 2 also states that the Attorney General of Saint
Lucia or a person designated by the Attorney General will serve
as the Central Authority for Saint Lucia.
---------------------------------------------------------------------------
\6\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
---------------------------------------------------------------------------
Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny the
request if it relates to an offense under military law which
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or other essential public
interests of that State. All United States mutual legal
assistance treaties contain provisions allowing the Requested
State to decline to execute a request if execution would
prejudice its essential interests.
The delegations agreed that ``security'' would include
cases in which assistance might involve disclosure of
information which is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
The delegations also agreed that the phrase ``essential
public interests'' was intended to narrowly limit the class of
cases in which assistance may be denied. It would not be enough
that the Requesting State's case is one that would be
inconsistent with public policy had it been brought in the
Requested State. Rather, the Requested State must be convinced
that execution of the request would seriously conflict with
significant public policy. An example might be a request
involving prosecution by the Requesting State of conduct which
occurred in the Requested State and is constitutionally
protected in that State.
However, it was agreed that ``essential public interests''
could include interests unrelated to national military or
political security, and be invoked if the execution of a
request would violate essential United States interests related
to the fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph (1)(b) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \7\
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\7\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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In general, the mere fact that the execution of a request
would involve the disclosure of records protected by bank or
business secrecy in the Requested State would not justify
invocation of the ``essential public interests'' provision.
Indeed, a major objective of the Treaty is to provide a formal,
agreed channel for making such information available for law
enforcement purposes. In the course of the negotiations, the
Saint Lucia delegation expressed its view that in very
exceptional and narrow circumstances the disclosure of business
or banking secrets could be of such significant importance to
its Government (e.g., if disclosure would effectively destroy
an entire domestic industry rather than just a specific
business entity) that it could prejudice that State's
``essential public interests'' and entitle it to deny
assistance. \8\ The U.S. delegation did not disagree that there
might be such extraordinary circumstances, but emphasized its
view that denials of assistance on this basis by either party
should be extremely rare.
---------------------------------------------------------------------------
\8\ The Saint Lucia view of this provision is thus similar to the
Swiss view of Article 3(2) of the U.S.-Switzerland Treaty. See
Technical Analysis to the Treaty between the U.S. and Switzerland on
Mutual Assistance in Criminal Matters, signed May 25, 1973. U.S. Senate
Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
Paragraph (1)(c) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph (1)(d) permits denial of a request if it involves
a political offense. It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
Paragraph (1)(e) permits denial of a request if there is no
``dual criminality'' with respect to requests made pursuant to
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters).
Finally, Paragraph (1)(f) permits denial of the request if
execution would be contrary to the Constitution of the
Requested State. This provision is similar to clauses in other
United States mutual legal assistance treaties. \9\
---------------------------------------------------------------------------
\9\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989, art.
2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13, 1989,
art. III(1)(d).
---------------------------------------------------------------------------
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty \10\, and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\10\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
Where the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. However, this
provision is neither intended or understood to authorize the
use of the grand jury in the United States for the collection
of evidence pursuant to a request from Saint Lucia. Rather, it
is anticipated that when a request from Saint Lucia requires
compulsory process for execution, the United States Department
of Justice would ask a federal court to issue the necessary
process under Title 28, United States Code, Section 1782, and
the provisions of this Treaty. \11\
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\11\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) reads ``[t]he competent
judicial or other authorities of the Requested State shall have
power to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in the execution of mutual
assistance requests. The phrase refers to ``judicial or other
authorities'' to include all those officials authorized to
issue compulsory process that might be needed in executing a
request. For example, in Saint Lucia, justices of the peace and
senior police officers are empowered to issue certain kinds of
compulsory process under certain circumstances.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Article 5(2) is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty, \12\ and provides
thatr]equests shall be executed according to the internal laws
and procedures of the Requested State except to the extent that
this Treaty provides otherwise.'' Thus, the method of executing
a request for assistance under the Treaty must be in accordance
with the Requested State's internal laws absent specific
contrary procedures in the Treaty itself. Thus, neither State
is expected to take any action pursuant to a Treaty request
which would be prohibited under its internal laws. For the
United States, the Treaty is intended to be self-executing; no
new or additional legislation will be needed to carry out the
obligations undertaken.
---------------------------------------------------------------------------
\12\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 9.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Saint
Lucia authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documentary evidence taken abroad to be
admitted in evidence if the evidence is duly certified and the
defendant has been given fair opportunity to test its
authenticity. \13\ Saint Lucia law currently contains no
similar provision. Thus, documents assembled in Saint Lucia in
strict conformity with Saint Lucian procedures on evidence
might not be admissible in United States courts. Similarly,
United States courts utilize procedural techniques such as
videotape depositions to enhance the reliability of evidence
taken abroad, and some of these techniques, while not
forbidden, are not used in Saint Lucia.
---------------------------------------------------------------------------
\13\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Article 5(3) requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested Party may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Article 5(5) of the Treaty enables the Requesting
Party to call upon the Requested State to keep the information
in the request confidential. \14\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\14\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, supra note 4, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \15\
Article 6 states that the Requesting State will pay fees of
expert witnesses, translation, interpretation and transcription
costs, and allowances and expenses related to travel of persons
pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\15\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 14, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 4, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
Article 7(1). Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Article 7(2) requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it.
The Saint Lucia delegation expressed concern that
information it might supply in response to a request by the
United States under the Treaty not be disclosed under the
Freedom of Information Act. Both delegations agreed that since
this article permits the Requested State to prohibit the
Requesting State's disclosure of information for any purpose
other than that stated in the request, a Freedom of Information
Act request that seeks information that the United States
obtained under the Treaty would have to be denied if the United
States received the information on the condition that it be
kept confidential.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Article 7(3) states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that there is an obligation to do
so under the Constitution of the Requesting State in a criminal
prosecution. Any such proposed disclosure and the provision of
the Constitution under which such disclosure is required shall
be notified by the Requesting State to the Requested State in
advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
paragraphs 1 or 2, the Requesting State is free to use the
evidence for any purpose. The negotiators noted that once
evidence obtained under the Treaty has been revealed to the
public in a trial, that information effectively becomes part of
the public domain, and is likely to become a matter of common
knowledge, perhaps even be described in the press. The Parties
agreed that once this has occurred, it is practically
impossible for the Central Authority of the Requesting State to
block the use of that information by third parties.
It should be kept in mind that under Article 1(4) of the
Treaty, the restrictions outlined in Article 7 are for the
benefit of the Parties (the United States and Saint Lucia) and
the invocation and enforcement of these provisions are left
entirely to the Parties. Where any individual alleges that an
authority in Saint Lucia is seeking to use information or
evidence obtained from the United States in a manner
inconsistent with this article, the recourse would be for the
person to inform the Central Authority of the United States of
the allegations, for consideration as a matter between the
governments.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article.
Paragraph 4, read together with Article 5(3), ensures that
no person will be compelled to furnish information if the
person has a right not to do so under the law of the Requested
State. Thus, a witness questioned in the United States pursuant
to a request from Saint Lucia is guaranteed the right to invoke
any of the testimonial privileges (e.g., attorney client,
interspousal) available in the United States as well as the
constitutional privilege against self- incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \16\ A witness testifying in
Saint Lucia may raise any of the similar privileges available
under Saint Lucian law.
---------------------------------------------------------------------------
\16\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \17\
---------------------------------------------------------------------------
\17\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 14, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 4,
art. 8(4).
---------------------------------------------------------------------------
Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
this paragraph provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Saint Lucia under this article in
appropriate cases. \18\
---------------------------------------------------------------------------
\18\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated in accordance with the procedures
specified in the request, and if authenticated in this manner,
the evidence shall be admissible in evidence in the Requesting
State. Thus, the Treaty establishes a procedure for
authenticating official foreign documents that is consistent
with Rule 902 (3) of the Federal Rules of Evidence and Rule 44,
Federal Rules of Civil Procedure.
Paragraph 3, like Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite witnesses who are located in its territory
to travel to the Requesting State to appear before an
appropriate authority there. It shall notify that Requesting
State of the invitee's response. An appearance in the
Requesting State under this article is not mandatory, and the
invitation may be refused by the prospective witness. The
Requesting State would be expected to pay the expenses of such
an appearance pursuant to Article 6 if requested by the person
whose appearance is sought.
Paragraph 1 provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the witness is to appear in the United States,
a nominal witness fee would also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while the
person is in the Requesting State. Most U.S. mutual legal
assistance treaties anticipate that the Central Authority will
determine whether to extend such safe conduct, but under the
Treaty with Saint Lucia, the Central Authority merely reports
whether safe conduct has been extended. This is because in
Saint Lucia only the Director of Public Prosecutions can extend
such safe conduct, and the Attorney General (who is Central
Authority for Saint Lucia under Article 3 of the Treaty) cannot
do so. This ``safe conduct'' is limited to acts or convictions
that preceded the witness's departure from the Requested State.
It is understood that this provision would not prevent the
prosecution of a person for perjury or any other crime
committed while in the Requesting State.
Paragraph 3 states that the safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer
required, or if the person leaves the territory of the
Requesting State and thereafter returns to it. However, the
competent authorities of the Requesting State may extend the
safe conduct up to fifteen days if they determine that there is
good cause to do so. For the United States, the ``competent
authorities'' for these purposes would be the Central
Authority; for Saint Lucia, the Director of Public Prosecutions
would be the appropriate competent authority.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \19\
---------------------------------------------------------------------------
\19\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \20\ which in turn
is based on Article 11 of the European Convention on Mutual
Assistance in Criminal Matters. \21\
---------------------------------------------------------------------------
\20\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
10, art. 26.
\21\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State
for that purpose if the person consents and if the Central
Authorities of both States agree. This would also cover
situations in which a person in custody in the United States on
a criminal matter has sought permission to travel to another
country to be present at a deposition being taken there in
connection with the case. \22\
---------------------------------------------------------------------------
\22\ See also United States v. King, 5522d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
---------------------------------------------------------------------------
Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require the
person's consent to return to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Article 11(3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
extent of such efforts will vary, of course, depending on the
quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. Identical
provisions appear in several U.S. mutual legal assistance
treaties.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Saint Lucia to follow a
specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \23\ This article
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
\23\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984). The courts of
other states in the eastern Caribbean have the power to execute
requests for such searches, too. See, e.g., Section 21, Barbados Mutual
Assistance Act 1992; Section 22, Dominica Mutual Assistance Act 1990.
---------------------------------------------------------------------------
The article requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Saint Lucia will have to be supported by
a showing of probable cause for the search. A United States
request to Saint Lucia would have to satisfy the corresponding
evidentiary standard there, which is ``a reasonable basis to
believe'' that the specified premises contains articles likely
to be evidence of the commission of an offense.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced pursuant
to this article. As in Articles 8(5) and 9(3), the injunction
that the certificates be admissible without additional
authentication at trial leaves the trier of fact free to bar
use of the evidence itself, in spite of the certificate, if
there is some other reason to do so aside from authenticity or
chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be
transferred. This article is similar to provisions in many
other United States mutual legal assistance treaties. \24\
---------------------------------------------------------------------------
\24\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 4; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 17;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 14; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 4; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jan. 6, 1994.
---------------------------------------------------------------------------
Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. The delegations understood
that this requirement would be invoked only if the Central
Authority of the Requested State specifically requests it at
the time that the items are delivered to the Requesting State.
It is anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Saint Lucia in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Saint Lucia, they could be seized under
18 U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \25\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the U.S.
since these offenses are predicate offenses under U.S. money
laundering laws. \26\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
---------------------------------------------------------------------------
\25\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\26\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B) allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada, and there is a growing trend among
nations toward enacting legislation of this kind in the battle
against narcotics trafficking. \27\ The United States
delegation expects that Article 16 of the Treaty will enable
this legislation to be even more effective.
---------------------------------------------------------------------------
\27\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\28\ Article 16(3) is consistent with this framework, and will
enable a Contracting Party having custody over the proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
---------------------------------------------------------------------------
\28\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
Article 17--Compatibility with Other Arrangements
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Saint Lucia law on letters rogatory completely undisturbed,
and would not alter any pre-existing agreements concerning
investigative assistance. \29\
---------------------------------------------------------------------------
\29\ E.g., the U.S.-St. Lucia Agreement for the Exchange of
Information With Respect to Taxes, with Annex, signed at Washington
January 30, 1987, entered into force April 22, 1991, T.I.A.S. 12057.
---------------------------------------------------------------------------
Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which Treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \30\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
---------------------------------------------------------------------------
\30\ See e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 4, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 14, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 24, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 4, art. 18.
---------------------------------------------------------------------------
Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification.
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented pursuant to it after it enters into force,
even if the relevant acts or omissions occurred before the date
on which the Treaty entered into force. Provisions of this kind
are common in law enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and the Grand Duchy of Luxembourg on Mutual Legal Assistance in
Criminal Matters
On March 13, 1997, the United States and the Grand Duchy of
Luxembourg signed a Treaty on Mutual Legal Assistance in
Criminal Matters (``the Treaty''). In recent years, the United
States has signed similar treaties with others 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 matters.
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 Treaty with Luxembourg is a major advance in the formal
law enforcement relationship between the two countries, as the
following technical analysis of the Treaty illustrates.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 provides for assistance ``in connection with
the investigation and prosecution of offenses, the punishment
of which, at the time of the request for assistance, would fall
within the jurisdiction of judicial authorities in the
Requesting State, and in forfeiture and restitution proceedings
related to criminal offenses.'' For the United States, this
includes a grand jury investigation, a criminal trial, a
sentencing proceeding, and an administrative inquiry by an
agency with investigative authority for the purpose of
determining whether to refer the matter to the Department of
Justice for criminal prosecution. \1\ Furthermore, the Treaty
may be invoked to provide assistance for forfeiture proceedings
against instrumentalities or proceeds of crime (e.g., drug
trafficking) or for restitution proceedings related to a
criminal offense.
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\1\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Luxembourg under
the Treaty in connection with investigations prior to charges being
filed in Luxembourg. Prior to the 1996 amendments to Title 28, United
States Code, Section 1782, some U.S. courts had interpreted Section
1782, to require that assistance be provided in criminal matters only
if formal charges have already been filed abroad, or are ``imminent,''
or ``very likely.'' McCarthy, ``A Proposed Uniform Standard for U.S.
Courts in Granting Requests for International Judicial Assistance,'' 15
Fordham Int'l Law J. 772 (1991). The 1996 amendment eliminates this
problem, however, by amending subsec. (a) to state ``including criminal
investigation conducted before formal accusation.'' In any event, this
Treaty was intentionally written to cover criminal investigations that
have just begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
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Unlike some United States mutual legal assistance treaties,
the Treaty with Luxembourg is intentionally silent regarding
assistance in the ``prevention'' of crime (i.e., in
anticipation of criminal activity). This is because the Treaty
is not intended to cover police-to-police cooperation before a
crime is committed. The delegations agreed that
``investigation'' is to be given a broad interpretation. The
preamble to the Treaty makes clear that the parties desire to
extend to each other the widest measure of cooperation and
assistance in criminal matters. The phrase ``would fall'' was
chosen to ensure coverage for matters that might not yet be
within the jurisdiction of a court.
Paragraph 2 lists the types of assistance specifically
considered by the negotiators. Most of the items are described
in greater detail in subsequent articles. The list is not
exhaustive, as indicated by the phrase ``assistance shall
include'' in the paragraph's chapeau and reinforced by the
phrase in item (i) that provides for ``any other form of
assistance not prohibited by the laws of the Requested State.''
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this article, however, makes it clear that there is no
general requirement of dual criminality under this Treaty for
cooperation. Thus, assistance may be provided even when the
criminal matter under investigation in the Requesting State
would not be a crime in the Requested State.
However, paragraph 3 also states that a party may decline
to provide assistance if execution of the request requires a
court order for search and seizure or other coercive measures,
and the facts stated in the request fail to establish a
reasonable suspicion that the conduct would constitute an
offense under its laws for which the maximum penalty would be
deprivation of liberty for at least six months. This means that
the Requested State is obligated to grant such assistance if,
using the standard of ``reasonable suspicion,'' it is
determined that the conduct described would be a crime under
the laws of the Requested State. However, where dual
criminality is lacking and execution requires coercive
measures, such as a search and seizure, the provision of
assistance will be discretionary with the Requested State. The
delegations agreed that it was sufficient for purposes of dual
criminality that the offenses be similar, and anticipated that
the dual criminality requirement would prevent the granting of
assistance only in rare instances. The last sentence of
Paragraph 3 obligates the Requested State to ``make every
effort to approve a request for assistance requiring court
orders or other coercive measures.''
Paragraph 4 requires that assistance be granted for
specified tax and customs duty offenses and for offenses
involving any other taxes that the parties specify at a later
date through an exchange of diplomatic notes.
Paragraph 5 makes assistance mandatory for tax offenses
other than those specified in Paragraph 4 where the facts in a
request establish a reasonable suspicion of ``fiscal fraud''
(``escroquerie fiscale''). This provision applies to offenses
involving a serious tax fraud such as felony tax offenses in
the United States and matters falling under the law relating to
``escroquerie fiscale'' in Luxembourg.
Fiscal fraud is defined in Paragraph 5(a) and (b) as
criminal offenses where ``the tax involved, either as an
absolute amount or in relation to an annual amount due, is
significant'' and the conduct involved ``constitutes a
systematic effort or a pattern of activity designed or tending
to conceal pertinent facts from or provide inaccurate facts to
the tax authorities.'' The delegations agreed that ``annual''
encompasses any year, not only calendar years. Diplomatic notes
exchanged by the parties provide additional guidance regarding
the kinds of matters in which assistance will be provided.
The parties agreed that matters relating to misleading
conduct in the collection of taxes may constitute other crimes,
such as fraudulent insolvency or breach of trust, for which
assistance will be provided under Paragraph 3.
The final sentence of Paragraph 5 provides that assistance
shall not be refused because the Requested State does not have
the same kind of tax or tax regulations as the Requesting
State. This provision is to protect against a technical
application of Paragraph 5.
Paragraph 6 expresses the intention of the negotiators that
the Treaty is for government-to-government mutual legal
assistance. Paragraph 6 specifies the authorities on whose
behalf a request may be made. It permits the Central Authority
for the United States to make requests to Luxembourg on behalf
of federal, state, and local prosecutors and criminal
investigators, as well as on behalf of authorities such as the
Securities and Exchange Commission and Internal Revenue
Service, which have responsibility to investigate criminal
activity for purposes of referral for criminal prosecution.
Private litigants in each of the parties may continue to obtain
evidence from the other party by letters rogatory, an avenue of
international assistance that the Treaty leaves undisturbed.
Paragraph 7 provides that the Treaty is not intended to
create any new right in a private person to impede the
execution of a request or to suppress or exclude evidence
provided under the Treaty, nor is it meant to affect any pre-
existing rights of a private party.
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Luxembourg on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. The Central Authority of Luxembourg would make all
requests emanating from officials in Luxembourg.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \2\ For
Luxembourg, the Parquet General will be the Central Authority.
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\2\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph 1(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph 1(b) permits the Requested State to deny
assistance relating to an offense for which the maximum penalty
in the Requesting State is a year or less. Under this
provision, the offense must be a serious one in the Requesting
State.
Paragraph 1(c) permits the Requested State to deny
assistance if it has prosecuted the person whose conduct is the
subject of the request for the identical conduct, and the
person has been convicted and sentenced, or acquitted, in the
Requested State. The negotiators anticipate this provision will
apply only in rare circumstances where the conduct addressed is
identical, the criminal proceedings occurred in the Requested
State, and the proceedings resulted in conviction and
sentencing or acquittal.
Under Paragraph 1(d) the Requested State may deny a request
if execution of the request ``would prejudice the sovereignty,
security, ordre public, or similar essential interests of the
Requested State.'' The delegations agreed that, for Luxembourg,
an essential interest may be a concern regarding the death
penalty. Should Luxembourg impose a condition on use of
evidence in a death penalty matter, the condition would be
operative only if U.S. prosecutors introduce the materials
received in execution of a Treaty request, or parts thereof,
into evidence in the proceeding. The Luxembourg delegation
agreed that no limitation would apply on use of the evidence in
the course of the investigation, nor would there be a bar to
imposition of a death penalty if a defendant obtained the
evidence and used it at trial.
``Essential interests'' may include interests unrelated to
national military or political security, and be invoked if the
execution of a request would violate essential United States
interests related to the fundamental purposes of the Treaty.
For example, one fundamental purpose of the Treaty is to
enhance law enforcement cooperation, and attaining that purpose
would be hampered if sensitive law enforcement information
available under the Treaty were to fall into the wrong hands.
Therefore, the United States Central Authority may invoke
paragraph 1(d) to decline to provide sensitive or confidential
drug related information pursuant to a request under this
Treaty whenever it determines, after appropriate consultation
with law enforcement, intelligence, and foreign policy
agencies, that a senior foreign government official who will
have access to the information is engaged in or facilitates the
production or distribution of illegal drugs and is using the
request to the prejudice of a U.S. investigation or
prosecution. \3\
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\3\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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The negotiators anticipate that the provision, including
its use in death penalty cases, will be invoked in the rarest
and most extreme circumstances; the phrase ``similar essential
interests,'' juxtaposed with the word ``security,'' is intended
to convey a concept of substantial national importance. It is
also anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
Paragraph 1(e) provides that the request may be denied if
it is not made in conformity with Article 4. (Article 4,
discussed later herein, relates to the form and contents of
Treaty requests.) This restriction, similar to those typically
found in United States mutual legal assistance treaties, gives
the Central Authority discretion to accept a request even
though it lacks some element that is otherwise required.
Paragraph 2 provides that the request may be denied if it
involves a political offense. A similar restriction is
typically found in United States mutual legal assistance
treaties. The negotiators agreed that offenses not considered
``political offenses'' under the U.S.-Luxembourg extradition
treaty are similarly not considered political offenses for
purposes of this Treaty. For Luxembourg, the Central Authority
will examine whether the request involves a political offense.
Should a court address a political offense claim once the
Central Authority forwards a request for execution, the public
prosecutor will present the arguments of the United States in
favor of assistance to the court at both the trial and
appellate levels. In the United States, the decision to deny
assistance on political offense grounds lies with the Central
Authority. The negotiators anticipate this provision will be
applicable only is extremely rare circumstances. The final
sentence of Paragraph 2 provides that the political offense
exception shall not apply to any offense that the Parties
consider not to be a political offense under any international
agreement to which they are parties.
Paragraph 3 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \4\ and obliges the
Requested State to consider imposing appropriate conditions on
its assistance in lieu of denying a request outright pursuant
to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal under the Treaty's terms).
This paragraph would permit the Requested State to provide the
information on the condition that it be used only in the
routine criminal case. Naturally, the Requested State would
notify the Requesting State of any proposed conditions before
actually delivering the evidence in question, thereby according
the Requesting State an opportunity to indicate whether it is
willing to accept the evidence subject to the conditions. If
the Requesting State does accept the evidence subject to the
conditions, it must honor the conditions.
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\4\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973,
art. 26, 27 U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
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Paragraph 4 effectively requires that the Central Authority
of the Requested State notify the Central Authority of the
Requesting State of the reason for denying a request for
assistance. This ensures that, when a request is only partly
executed, the Requested State will provide some explanation for
not providing all of the information or evidence sought. This
should avoid misunderstandings, and enable the Requesting State
to better prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations.'' A request in
another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Requests that the United States sends to Luxembourg, and
supporting documents, must be translated into French.
Luxembourg's requests to the United States, and supporting
documents, must be accompanied by a translation into English.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Luxembourg. Rather, it is
anticipated that when a request from Luxembourg requires
compulsory process for execution, the United States Department
of Justice would ask a federal court to issue the necessary
process under Title 28, United States Code, Section 1782, and
the provisions of the Treaty.
Paragraph 2 provides thatr]equests shall be executed in
accordance with the laws of the Requested State except to the
extent that this Treaty provides otherwise.'' Thus, the method
of executing a request for assistance under the Treaty must be
in accordance with the Requested State's internal laws absent
specific contrary procedures in the Treaty itself. Neither
State is expected to take any action pursuant to a treaty
request which would be prohibited under its internal laws. For
the United States, the Treaty is intended to be self-executing;
no new or additional legislation will be needed to carry out
the obligations undertaken.
The second sentence of Paragraph 2 authorizes the courts in
each State to issue such orders to execute requests made under
the Treaty as would be authorized for domestic investigations
and prosecutions. In the United States, the mechanism used to
call upon the courts to exercise their authority to execute
Luxembourg requests will be an application filed pursuant to
Title 28, United States Code, Section 1782. Typically, upon
application pursuant to that statute, the court appoints a
commissioner and authorizes the commissioner to issue subpoenas
(which should be as far-reaching and comprehensive as in
domestic investigations and prosecutions) to take testimony and
produce evidence. The commissioner may also call upon the court
to enforce the subpoenas, if necessary, or for other orders,
such as for searches and seizures to the extent that ``probable
cause'' exists, or to freeze the proceeds of crime, to the
extent necessary or appropriate to execute the Luxembourg
request.
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there may be significant differences between the
procedures which must be followed by United States and
Luxembourg authorities in collecting evidence in order to
assure the admissibility of that evidence at trial. For
instance, United States law permits documentary evidence taken
abroad to be admitted in evidence if the evidence is duly
certified and the defendant has been given fair opportunity to
test its authenticity. \5\ Luxembourg law currently contains no
similar provision. Thus, documents assembled in Luxembourg in
strict conformity with procedures in Luxembourg on evidence
might not be admissible in United States courts. Similarly,
United States courts utilize procedural techniques such as
videotape depositions to enhance the reliability of evidence
taken abroad, and some of these techniques, while not
forbidden, are not used in Luxembourg. Second, the evidence in
question could be needed for subjection to forensic
examination, and sometimes the procedures which must be
followed to enhance the scientific accuracy of such tests do
not coincide with those utilized in assembling evidence for
admission into evidence at trial. The value of such forensic
examinations could be significantly lessened--and the
Requesting State's investigation could be retarded--if the
Requested State were to insist unnecessarily on handling the
evidence in a manner usually reserved for evidence to be
presented to its own courts.
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\5\ Title 18, United States Code, Section 3505.
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Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 2 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 3 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing criminal investigation or proceeding in the
Requested State, jeopardize the security of a person, or impose
an extraordinary burden on the resources of that State. The
Central Authority of the Requested Party may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the execution of the request. The paragraph also allows the
Requested State to provide the information sought to the
Requesting State subject to appropriate conditions.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of ``a description
of the facts and nature of the investigation, prosecution, or
proceeding'' as required by Article 4(2)(b). Therefore,
Paragraph 4 of Article 5 enables the Requesting State to call
upon the Requested State to keep the information in the request
confidential. \6\ If the Requested State cannot execute the
request without disclosing the information in question (as
might be the case if execution requires a public judicial
proceeding in the Requested State), or if for some other reason
this confidentiality cannot be assured, the Treaty obliges the
Requested State to so indicate, thereby giving the Requesting
State an opportunity to withdraw the request rather than risk
jeopardizing an investigation or proceeding by public
disclosure of the information.
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\6\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, Nov. 13, 1994, art. 5(5).
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Paragraph 5 provides that the Requested State may permit
the presence of individuals specified in the request during its
execution. This provision makes clear that the Requested State
may grant requests by the Requesting State for the presence of
prosecutors, agents, defendants, defense counsel, court
reporters, translators, interpreters, or other individuals who
may facilitate the execution of the request.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \7\
Paragraph 1 states that the Requesting State will pay fees of
experts, translation, interpretation and transcription costs,
and allowances and expenses related to travel of persons within
the Requested State for the convenience of the Requesting State
and to travel of persons pursuant to Articles 10 and 12.
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\7\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 6, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 6, art. 6.
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Paragraph 2 provides that if it becomes apparent, as
execution is occurring, that complete execution will involve
extraordinary expense, the Central Authorities are to consult
to determine the terms and conditions for execution to
continue. The negotiators agreed consultation should occur
where costs are extraordinarily large, as where the Requested
State might be obliged to pay for a search for records for
several weeks at an hourly rate.
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence. If assistance is
provided with a condition under this paragraph, the U.S. could
deny public disclosure under the Freedom of Information Act.
Paragraph 2 provides that information or evidence obtained
by the Requesting State for the investigation or prosecution of
a tax offense may also be used by authorities involved in the
assessment, collection, or administration of the taxes that
underlie the offense, or in enforcing or determining the
appeals relating to such taxes. This ensures that the evidence
may be used in all civil and administrative proceedings that
relate to the determination of the taxes owed. The parties
agreed that the evidence may be used in civil and
administrative proceedings even if the tax fraud prosecution
results in an acquittal or even if, after the evidence is
received, a decision is made not to institute criminal
proceedings. The parties agreed that the evidence would not be
used in criminal prosecutions for tax offenses not covered by
Article 1(5) except as otherwise provided pursuant to Paragraph
1.
Paragraph 3 states that nothing in Article 7 shall preclude
the use or disclosure of information to the extent that it is
mandatory for the United States under its Constitution and for
Luxembourg under the European Convention for the Protection of
Human Rights and Fundamental Freedoms. For the United States,
this provision addresses, for instance, issues arising where
evidence provided for one investigation or prosecution is of
exculpatory value to a defendant in another prosecution. The
Requesting State is required to notify the Requested State
before any such use or disclosure takes place.
Paragraph 4 provides that once information or evidence
becomes public in the Requesting State in the normal course of
the proceeding for which it was provided, it thereafter may be
used for any purpose with four exceptions. Even after evidence
becomes public, its use is prohibited in prosecutions of
offenses under military law that would not be offenses under
ordinary criminal law; political offenses; capital offenses;
and tax offenses not covered by the Treaty. The Requesting
State must obtain the consent of the Requested State to use the
information or evidence in the prosecution of one of these
listed offenses.
Article 8--Testimony, Statements, or Evidence in the Requested State
Paragraph 1 obligates the Requested State to compel persons
to appear and testify or produce evidence requested by the
Requesting State to the same extent as in criminal
investigations or proceedings in the Requested State. Judicial
authorities in both States have the power to compel testimony
and production of documents in connection with both domestic or
foreign proceedings. Whereas in the United States, competent
authorities will rely on compliance with a subpoena for
production of most documents, in Luxembourg, authorities will
gather the documents through a search and seizure procedure.
The criminal laws in both States contain provisions that
sanction giving or producing false evidence. The second
sentence of Paragraph 1 explicitly states that the criminal
laws in the Requested State shall apply in situations where a
person in that State provides false evidence in execution of a
request. The negotiators expect that, were false testimony or
certification of documents provided in execution of a request,
the Requesting State could ask the Requested State to prosecute
for perjury and provide the Requested State with the
information or evidence needed to prove the falsehood.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony, statements or evidence.
Although the time period ``in advance'' is undefined, the
negotiators understood that each State would attempt to
accommodate the needs of the other in this regard. The
negotiators agreed that a court in the Requesting State with
jurisdiction over a person who has filed an opposition in the
Requested State (e.g., to the taking of testimony) may order
the person not to object or to withdraw the opposition.
Advance notice is of particular importance to the United
States because the United States sometimes relies heavily on
deposition testimony where a witness is unwilling or unable to
come to the United States to testify at trial. With assurance
of advance notice, the United States trial court can order that
a deposition take place in Luxembourg on a date to be specified
by the Luxembourg authorities. The Central Authorities then can
work together to arrange a date for the testimony and notify
the parties sufficiently in advance of the date to permit the
parties to be present.
Paragraph 3 guarantees that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
during the taking of testimony under oath for use in a
proceeding, and be allowed either to directly question the
person giving testimony or to have questions posed in
accordance with the applicable procedures of the Requested
State. For the United States, the persons specified to be
present in Luxembourg could include prosecutors, investigators,
court reporters, translators, interpreters, defendants, and
defense counsel.
The presence of a stenographer is generally critical to
preserve testimony of witnesses inasmuch 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. Among other things, the United States practice
is intended to allow the trier of fact to receive testimony, to
the extent possible, as if the witnesses were present at the
United States court proceeding.
The ability to secure the presence of the defendant and
defense counsel is important under United States law, which
normally seeks to afford the defendant an opportunity to
confront a witness who testifies against the defendant and to
ask the witness questions. Neither delegation foresaw a problem
in accommodating the need for confrontation under either
system.
Paragraph 4, when read together with Article 5(2), ensures
that no person will be compelled to furnish information if he
has a right not to do so under the law of the Requested State.
Thus, a witness questioned in the United States pursuant to a
request from Luxembourg is guaranteed the right to invoke any
of the testimonial privileges (e.g., attorney client,
interspousal) available in the United States as well as the
constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \8\ A witness testifying in
Luxembourg may raise any of the similar privileges available
under Luxembourg law.
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\8\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \9\
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\9\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty, June
12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, Supra note 6, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 6,
art. 8(4).
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Paragraph 5 is primarily for the benefit of the United
States. The United States evidentiary system requires that
evidence to be used as proof in a legal proceeding be
authenticated as a precondition to admissibility. This
paragraph provides for authentication and, further, ensures
that records produced will not be excluded in U.S. proceedings
by the hearsay rule. Items produced in the Requested State
pursuant to Article 8 may be certified by an ``attestation.''
Although the provision is sufficiently broad to include the
certification of any items produced, the negotiators focused on
and were primarily concerned with business records. In order to
ensure the United States that business records provided by
Luxembourg pursuant to the Treaty could be authenticated and
hearsay objections addressed in a manner consistent with
existing United States law, the negotiators crafted Form A to
track the language of Title 18, United States Code, Section
3505, the foreign business records authentication statute.
Article 8(5)(a) provides that Luxembourg authorities properly
complete, sign, and attach Form A to executed documents so that
a U.S. judge may admit the records into evidence without the
appearance at trial of a witness.
Paragraph 5 also provides for a situation where a witness
declines to complete Form A. The article permits the use of a
``protocol containing the essential information'' that would
otherwise be included in Form A. Accordingly, a judicial
official can interview the witness and provide a protocol with
the required information. Finally, Article 8(5)(c) provides for
use of a ``document'' containing the essential information
required by the Requesting State. With this provision, the
negotiators sought to accommodate changes in United States and
Luxembourg evidentiary law without changing the Treaty.
Pursuant to Article 8(5)(c), the Requesting State would need to
make its requirements for certification known in the request,
and such procedures would be followed to the extent possible
under the law of the Requested State.
It is understood that the last sentence of this paragraph
provides for the admissibility of authenticated documents as
evidence without additional foundation or authentication. With
respect to the United States, this paragraph is self-executing
and does not need implementing legislation.
Article 8(5) provides that evidence authenticated in
accordance with this provision is ``admissible,'' but of
course, it will be up to the judicial authority presiding over
the trial to determine whether the evidence should in fact be
admitted. The negotiators intended that evidentiary tests other
than authentication (such as relevance and materiality) would
still have to be satisfied in each case.
Article 9--Official Records
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by its judicial authorities
or a government department or agency in the Requested State.
This includes ``government departments and agencies'' including
all executive, judicial, and legislative units of the Federal,
State, and local level in each country.
Paragraph 2 provides that the Requested State may provide
copies of records of any nature and in any form that are in the
possession of its judicial authorities or government
departments or agencies, but that are not accessible to the
public, to the same extent and under the same conditions that
would apply to its own law enforcement or judicial authorities.
The Requested State may, in its discretion, deny entirely or in
part a request covered by this paragraph.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty in tax
matters, and such assistance could include tax return
information when appropriate. The United States delegation was
satisfied after discussion that this Treaty is a ``convention
relating to the exchange of tax information'' for purposes of
Title 26, United States Code, Section 6103(k)(4), and the
United States would have the discretion to provide tax return
information to Luxembourg under this article in appropriate
cases. \10\
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\10\ Under 26 U.S.C. 6103(i) information in the files of the
Internal Revenue Service (generally protected from disclosure under 26
U.S.C. 6103) may be disclosed to federal law enforcement personnel in
the United States for use in a non-tax criminal investigations or
proceedings, under certain conditions and pursuant to certain
procedures. The negotiators agreed that this Treaty (which provides
assistance both for tax offenses and in the form of information in the
custody of tax authorities of the Requested State) is a ``convention .
. . relating to the exchange of tax information'' under Title 26,
United States Code, Section 6103(k)(4), pursuant to which the United
States may exchange tax information with treaty partners. Thus, the
Internal Revenue Service may provide tax returns and return information
to Luxembourg through this Treaty when, in a criminal investigation or
prosecution, the authority of Luxembourg on whose behalf the request is
made can meet the same conditions required of United States law
enforcement authorities under Title 26, United States Code, Sections
6103(h) and (i). As an illustration, a request from Luxembourg for tax
returns to be used in a non-tax criminal investigation, in accordance
with 26 U.S.C. 6103(i)(1)(A), would have to specify that the law
enforcement authority of Luxembourg is:
personally and directly engaged in--
(i) preparation for any judicial or administrative proceeding
pertaining to the enforcement of a specifically designated criminal
statute of Luxembourg (not involving tax administration) to which
Luxembourg is or may be a party.
(ii) any investigation which may result in such a proceeding, or
(iii) any proceeding in Luxembourg pertaining to enforcement of
such a criminal statute to which Luxembourg is or may be a party. (See
26 U.S.C. 6103(i)(1)(A))
The request would have to be presented to a federal district court
judge or magistrate for an order directing the Internal Revenue Service
to disclose the tax returns as specified at 26 U.S.C. 6103(I)(1)(B).
Before issuing such an order, the judge or magistrate would have to
determine, also in accordance with 26 U.S.C. 6103(I)(1)(B), that:
(i) there is reasonable cause to believe, based upon information
believed to be reliable, 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 criminal investigation in Luxembourg or proceeding concerning
such act, and the information sought to be disclosed cannot reasonably
be obtained, under the circumstances, from another source.
In other words, the law enforcement authorities of Luxembourg
seeking tax returns would be treated as if they were United States law
enforcement authorities--undergo the same access procedure where they
would be held to the same standards.
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Paragraph 3 provides for the authentication, by
certification of a competent authority of the Requested State,
of records produced pursuant to this article. With the
certification no further authentication is necessary.
Nevertheless, Luxembourg agreed that its Central Authority,
upon request, would further provide a ``Certification of
Foreign Public Documents'' that states: ``I, [Luxembourg
Central Authority], attest on penalty of criminal punishment
for false statement or attestation that the position of the
authority with the government of Luxembourg certifying the
official record is [official title] and that in that position,
the authority is authorized by the laws of Luxembourg to attest
that the documents attached [and described below] are true and
accurate copies of original official records that are recorded
or filed in [name of office or agency], which is a government
office or agency of LuxembourDescription of Documents]
Signature/Title/Date.''
With the simple certification, or if the United States so
requests, with the certification of both the certifying
official and the Luxembourg Central Authority, the evidence
shall be admissible in evidence in the Requesting State. Thus,
the Treaty establishes a procedure for authenticating official
foreign documents that is consistent with Rule 902(3) of the
Federal Rules of Evidence and Rule 44 of the Federal Rules of
Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible,'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Appearance in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness.
When the United States seeks to have Luxembourg invite a
person to appear in the United States, the United States
Central Authority will send a letter of invitation through the
Luxembourg Central Authority. The person invited is free to
decline and shall not be subject to any penalty for doing so or
for failing to appear after agreeing to do so. This does not
preclude the United States from seeking under Article 14
service of a document such as a subpoena issued under Title 28,
United States Code, Sections 1783-1784 and directed to a United
States citizen or resident located in Luxembourg, which
subpoena may entail sanctions for failure to appear in the
United States as directed by the subpoena.
Paragraph 2 provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided. Paragraph 2 also
provides that the person who agrees to travel to the Requesting
State may request and receive an advance for expenses. The
advance may be provided through the embassy or a consulate of
the Requesting State.
Article 11--Safe Conduct
Article 11(1) provides assurances that any witness or
expert who appears in the Requesting State pursuant to a
request for assistance shall not be ``subject to any civil suit
to which the person could not be subjected but for the person's
presence in the Requesting State.'' It further provides that
such person shall not be ``prosecuted, punished, or subjected
to any restriction of personal liberty'' for acts committed
prior to his leaving the Requested State. As specifically
stated, these assurances do not protect against civil suits,
prosecution, punishment, or restriction of personal liberty
with respect to acts committed after departure from the
Requested State. Any person appearing in the United States
pursuant to a request under Article 10 or Article 12 will have
such assurances unless the United States Central Authority
specifies otherwise in the request inviting the person to
appear.
Article 11(2) terminates the safe conduct provided in
paragraph 1 if, after the person with safe conduct is notified
that his or her presence is no longer required, that person,
although free to leave, remains in the Requesting State for
seven days, or, having left, voluntarily returns.
Article 12--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \11\
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\11\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \12\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \13\
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\12\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 4,
art. 26.
\13\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
needed for purposes of assistance under this Treaty shall be
transferred from the Requested State for that purpose if the
person consents and if the Central Authorities of both States
agree. This would also cover situations in which a person in
custody in the United States on a criminal matter has sought
permission to travel to another country to be present at a
deposition being taken there in connection with the case. \14\
---------------------------------------------------------------------------
\14\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 12 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 13--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
extent of such efforts will vary, of course, depending on the
quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 14--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating to a Treaty request. Identical provisions appear in
several U.S. mutual legal assistance treaties.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Luxembourg to follow a
specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested. In Luxembourg, police officials serve documents and
either make a return with a receipt or provide a statement
regarding service.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires the Requested State to effect service
and return proof of service in the manner provided by its laws,
or if the request sets forth a specific manner, in ``a special
manner consistent with such laws.'' This allows each State to
make a specific request regarding the manner of service, and
the Requested State will honor that request as long as it is
consistent with its laws.
Paragraph 4 provides that persons, other than nationals or
residents of the Requesting State, who do not answer a summons
to appear will not be sanctioned for failure to respond or
subject to coercive measures. Under this provision, sanctions
and coercive measures for failure to respond after service
under the Treaty are possible only with respect to nationals or
residents of the Requesting State. Luxembourg agreed to effect
service on U.S. citizens and residents and recognized that such
individuals were subject to sanction under United States law
for failure to respond and to potential coercive measures once
service under the Treaty has occurred. The parties agreed that
service of documents would occur only under the Treaty.
Article 15--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \15\ This article
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
\15\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (Search warrant issued February 24, 1984).
---------------------------------------------------------------------------
Article 15 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Luxembourg will have to be supported by
a showing of probable cause for the search. A United States
request to Luxembourg would have to satisfy the corresponding
evidentiary standard applicable there at the time of the
request.
For the United States, prosecutors will make requests for
search and seizure in Luxembourg without the involvement of the
United States courts. Because the Treaty defines a ``judicial
authority'' for purposes of this article as ``a prosecutor,''
Luxembourg expects that the United States prosecutor who
issues, approves, or otherwise authorizes a U.S. request
seeking search and seizure will be named in the request.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that the Requested State
keep detailed and reliable information regarding the condition
of an article at the time of seizure, and the chain of custody
between seizure and delivery to the Requesting State. The
Requested State is required to maintain a reliable record, from
the time of a seizure, of the ``identity of the item, the
continuity of its custody, and the integrity of its
condition.'' Each custodian then executes a certificate using
Form B, which is appended to the Treaty, or a document that
contains the essential information required by the Requesting
State.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced under
this article. As in Articles 8(5) and 9(3), the injunction that
the certificates be admissible without additional
authentication leaves the trier of fact free to bar use of the
evidence itself, in spite of the certificate, if there is some
reason to do so other than authenticity or chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \16\
---------------------------------------------------------------------------
\16\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, Dec.
4, 1990; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 9;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 6; U.S.-Hungary
Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-Korea Mutual Legal
Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual Legal Assistance
Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 6; U.S.-Spain Mutual Legal Assistance Treaty, Nov. 20, 1990;
U.S.-United Kingdom Mutual Legal Assistance Treaty, Jan. 6, 1994.
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Article 16--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. This would normally be
invoked only if the Central Authority of the Requested State
specifically requests it at the time that the items are
delivered to the Requesting State. It is anticipated that
unless original records or articles of significant intrinsic
value are involved, the Requested State will not usually
request return of the items, but this is a matter best left to
development in practice.
Article 17--Proceeds, Objects, and Instrumentalities of an Offense
A major goal of the Treaty is to enhance the efforts of
both the United States and Luxembourg in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
provides that, upon request, the Central Authority of one State
may take protective measures that are appropriate under the
laws in that State to ensure that proceeds, objects, and
instrumentalities of a crime located in that State are
available for forfeiture or restitution.
The phrase ``proceeds, objects, or instrumentalities of an
offense'' 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. In many
instances, Luxembourg is able to impose temporary protective
measures with respect to criminal proceeds, and with such
measures is often able to protect funds for restitution and
forfeiture.
Paragraph 2 imposes an obligation upon each State to assist
the other to the extent permitted by their respective laws in
proceedings relating to the forfeiture of proceeds, objects,
and instrumentalities of crime or restitution to victims of
crime. This is consistent with Article 1(1) which provides that
the Treaty covers assistance ``in forfeiture and restitution
proceedings related to criminal offenses.'' Luxembourg agreed
that civil (as well as criminal) forfeiture proceedings in the
United States would be covered as long as the civil proceedings
relate to a criminal matter.
The limited obligation to assist is carefully crafted so as
not to require either State to take any action that would
exceed it internal legal authority. It does not mandate
institution of forfeiture proceedings in either country against
property identified by the other if the relevant prosecution
authorities do not deem it proper to do so. Luxembourg expects
enactment of legislation regarding the proceeds of crime.
Paragraph 2 makes available any forms of assistance that become
available under newly enacted laws.
Paragraph 3 addresses the disposition of forfeited proceeds
or property. The article permits the Parties to assist each
other by giving effect to the other's forfeiture judgments to
the extent possible under the domestic laws of the States or,
alternatively, to initiate a legal action for the forfeiture of
the assets. Luxembourg may, in effect, recognize a U.S.
forfeiture judgment in a drug trafficking matter if its
domestic standard for confiscation is met.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\17\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party that enforces a final decision
relating to such proceeds, objects, and instrumentalities of an
offense to transfer forfeited assets, or the proceeds of the
sale of such assets, to the other Contracting Party, at the
former's discretion and to the extent permitted by their
respective laws.
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\17\ See Title 18, United States Code, Section 981 (i)(1).
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Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \18\ It
is anticipated that the Central Authorities will conduct
regular consultations pursuant to this article.
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\18\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 6, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 6, art. XVIII; U.S.-United Kingdom Mutual Legal Assistance
Treaty, supra note 16, art. 18; U.S.-Argentina Mutual Legal Assistance
Treaty, supra note 16, art. 18.
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Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification.
Paragraph 2 provides that the Treaty shall enter into force
the first day of the second month after the exchange of
instruments of ratification.
Paragraph 3 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of The Treaty Between the United States of America
and the Republic of Poland on Mutual Legal Assistance in Criminal
Matters
On July 10, 1996, the United States and Poland signed a
Treaty on Mutual Legal Assistance in Criminal Matters (``the
Treaty''). In recent years, the United States has signed
similar treaties with other countries as part of a highly
successful effort to modernize the legal tools available to law
enforcement authorities in need of foreign evidence for use in
criminal cases.
It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 28, United States Code, Section 1782. The Republic of
Poland has its own internal legislation \1\ that will apply to
the United States' requests under the Treaty.
---------------------------------------------------------------------------
\1\ The 1969 Polish Code of Criminal Procedure, Part XII, Articles
523-538.
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The Treaty with Poland is a major advance in the formal law
enforcement relationship between the two countries, as the
technical analysis of the Treaty illustrates.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Poland, and
other legal measures taken prior to the filing of formal
charges in either State. \2\ The term ``proceedings'' was
intended to cover the full range of proceedings in a criminal
case, including such matters as bail and sentencing hearings.
\3\ It was also agreed that since the phrase ``proceedings
related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \4\ yet such proceedings are covered by the
Treaty.
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\2\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Poland under the
Treaty in connection with investigations prior to charges being filed
in Poland. Prior to the 1996 amendments of Title 28, United States
Code, Section 1782, some U.S. courts interpreted that section to
require that assistance be provided in criminal matters only if formal
charges have already been filed abroad, or are ``imminent,'' or ``very
likely.'' McCarthy, ``A Proposed Uniform Standard for U.S. Courts in
Granting Requests for International Judicial Assistance,'' 15 Fordham
Int'l Law J. 772 (1991). The 1996 amendment eliminates this problem,
however, by amending subsec. (a) to state ``including criminal
investigation conducted before formal accusation.'' In any event, this
Treaty was intentionally written to cover criminal investigations that
have just begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\3\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
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Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this article, however, makes it clear that there is no
general requirement of dual criminality under this Treaty for
cooperation. Thus, assistance may be provided even when the
criminal matter under investigation in the Requesting State
would not be a crime in the Requested State. Article 1(3) is
important because United States and Polish criminal law differ
significantly, and a general dual criminality rule would make
assistance unavailable in many significant areas. This type of
limited dual criminality provision is found in other U.S.
mutual legal assistance treaties. \5\ During the negotiations,
the United States delegation received assurances from the
Polish delegation that assistance would be available under the
Treaty to the United States investigations of key crimes such
as drug trafficking, fraud, money laundering, tax offenses,
antitrust offenses, and environmental protection matters.
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\5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \6\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Poland by letters
rogatory, an avenue of international assistance that the Treaty
leaves undisturbed. Similarly, the paragraph provides that the
Treaty is not intended to create any right in a private person
to suppress or exclude evidence provided pursuant to the
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
\6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Poland on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. The Polish Central Authority would make all requests
emanating from officials in Poland.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \7\ For
Poland, the Minister of Justice-Attorney General, or persons
designated by him, will be the Central Authority. The Minister
of Justice-Attorney General is one person, as required by the
Polish Constitution. Generally, a U.S. request submitted to
Poland for assistance during the investigative stage of a
criminal matter will be handled by the Minister of Justice-
Attorney General; where a request to Poland for assistance
concerns an indicted case, the Minister of Justice-Attorney
General will forward the request to a court for execution. The
Polish negotiators noted their experience is that, under Polish
law, most foreign requests for assistance fall within the
investigative stage and are thus most often directed to a
department within the Ministry of Justice for execution.
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\7\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits denial of a request if it involves
a political offense. It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
Paragraph (1)(c) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or similar essential interests of
that State. All United States mutual legal assistance treaties
contain provisions allowing the Requested State to decline to
execute a request if execution would prejudice its essential
interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
The delegations also agreed that the phrase ``essential
interests'' was intended to narrowly limit the class of cases
in which assistance may be denied. It would not be enough that
the Requesting State's case is one that would be inconsistent
with public policy had it been brought in the Requested State.
Rather, the Requested State must be convinced that execution of
the request would seriously conflict with significant public
policy. An example might be a request involving prosecution by
the Requesting State of conduct which occurred in the Requested
State and is constitutionally protected in that State.
However, it was agreed that ``essential interests'' could
include interests unrelated to national military or political
security, and be invoked if the execution of a request would
violate essential United States interests related to the
fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph 1(c) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \8\
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\8\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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Paragraph (1)(d) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \9\ and obliges the
Requested State to consider imposing appropriate conditions on
its assistance in lieu of denying a request outright pursuant
to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\9\ 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 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the five kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
promptly. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
For Poland, the Central Authority will determine whether
(1) the request complies with the terms of the Treaty, and (2)
its execution would prejudice the security or other essential
interests of Poland. If the request merits execution, the
Central Authority will transmit the request to an appropriate
department within the Ministry of Justice or to the appropriate
judicial authorities for that purpose. The procedure is similar
for the United States, except the United States Central
Authority normally will transmit the request to federal
investigators, prosecutors, or agencies for execution. The
United States Central Authority also may transmit a request to
state authorities in circumstances it deems appropriate.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Poland. Rather, it is
anticipated that when a request from Poland requires compulsory
process for execution, the United States Department of Justice
would ask a federal court to issue the necessary process under
Title 28, United States Code, Section 1782, and the provisions
of the Treaty. \10\
---------------------------------------------------------------------------
\10\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) provides that ``[t]he
judicial or other competent authorities of the Requested State
shall have power to issue subpoenas, search warrants, or other
orders necessary to execute the request.'' This language
reflects an understanding that the Parties intend to provide
each other with every available form of assistance from
judicial and executive branches of government in the execution
of mutual assistance requests. The phrase refers to ``judicial
or other authorities'' to include all those officials
authorized to issue compulsory process that might be needed in
executing a request. For Poland, it was necessary to extend the
authorization to ``other competent authorities'' in order to
include public prosecutors empowered under Polish law to
``issue subpoenas, search warrants, or other orders to execute
the request.''
In Poland, execution of requests will be almost exclusively
within the province of the Ministry of Justice and the courts,
whereas in the United States, execution can be entrusted to any
competent authority in any branch of government, federal or
state. Nevertheless, when a request from Poland requires
compulsory process for execution, it is anticipated that the
competent authority in the United States will issue the
necessary compulsory process itself, \11\ or ask the competent
judicial authorities to do so.
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\11\ For example, the Securities and Exchange Commission has the
power to issue compulsory process to obtain evidence to execute a
request for assistance from certain foreign authorities.
---------------------------------------------------------------------------
For requests that relate to cases in the investigative
stage, the Polish Central Authority will transmit the request
to the appropriate department in the Ministry of Justice that
will execute the request. The department within the Ministry of
Justice to which the request is assigned will then either
execute the request or forward it to the public prosecutor in
the region in Poland where the evidence or information is
located. Public prosecutors, whether in the Ministry of Justice
or in other locations in Poland, have authority to order
compulsory process, including, but not limited to, requiring a
witness to appear to provide testimony, issuing subpoenas to
compel the production of documents or other evidence, and
ordering a search and seizure. The exercise of this authority
by Polish prosecutors does not require the consent of the
court. In other words, unlike in the United States, a Polish
prosecutor may execute a foreign request seeking compulsory
process without the assistance of the Polish courts.
For requests to Poland that are related to indicted cases,
the Polish Central Authority will transmit the request to the
appropriate court with general advice regarding Poland's treaty
obligation and the general evidentiary and procedural
requirements of the United States.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for
representing the Requesting State in any proceedings in the
Requested State arising out of the request for assistance.
Thus, it is understood that if execution of the request entails
action by a judicial or administrative agency, the Central
Authority of the Requested State shall arrange for the
presentation of the request to that court or agency at no cost
to the Requesting State. Since the cost of retaining counsel
abroad to present and process letters rogatory is sometimes
quite high, this provision for reciprocal legal representation
in Paragraph 2 is a significant advance in international legal
cooperation. It is also understood that should the Requesting
State choose to hire private counsel for a particular request,
it is free to do so at its own expense.
Paragraph 3 provides that ``[r]equests shall be executed in
accordance with the laws of the Requested State except to the
extent that this Treaty provides otherwise.'' Thus, the method
of executing a request for assistance under the Treaty must be
in accordance with the Requested State's internal laws absent
specific contrary procedures in the Treaty itself. Thus,
neither State is expected to take any action pursuant to a
treaty request which would be prohibited under its internal
laws. For the United States, the Treaty is intended to be self-
executing; no new or additional legislation will be needed to
carry out the obligations undertaken.
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Polish
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documentary evidence taken abroad to be
admitted in evidence if the evidence is duly certified and the
defendant has been given fair opportunity to test its
authenticity. \12\ Polish law currently contains no similar
provision. Thus, documents assembled in Poland in strict
conformity with Polish procedures on evidence might not be
admissible in United States courts. Similarly, United States
courts utilize procedural techniques such as videotape
depositions to enhance the reliability of evidence taken
abroad, and some of these techniques, while not forbidden, are
not used in Poland.
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\12\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 3 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested Party may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \13\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
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\13\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual
Legal Assistance Treaty, supra note 5, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests. ``Reasonable'' is
not defined; the negotiators felt that the Central Authorities
would develop a practical method of providing current
information on a timely basis.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \14\
Article 6 does not, however, oblige the Requested State to pay
fees of experts, costs of translation and interpretation, costs
of recording by private parties of testimony or statements, or
the costs of preparation by private parties written records or
videotapes of testimony or statements, and allowances and
expenses related to travel of persons pursuant to Articles 10
and 11.
---------------------------------------------------------------------------
\14\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 13, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 5, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(e) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it. If assistance
is provided with a condition under this paragraph, the U.S.
could deny public disclosure under the Freedom of Information
Act.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that such information is
exculpatory to a defendant in a criminal prosecution. Any such
proposed disclosure shall be notified by the Requesting State
to the Requested State in advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
paragraphs 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Polish authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Article 8 requires that each State permit the taking of
testimony and evidence on behalf of the other State.
Article 8(1) obligates the Requested State to compel
persons to appear and testify or produce evidence requested by
the Requesting State. Polish public prosecutors and courts and
U.S. courts have the power to compel testimony or documents
from individuals or companies in connection with both domestic
and foreign proceedings. In the United States, a prosecutor
asks a U.S. court to appoint him as a commissioner empowering
him to execute subpoenas on behalf of the foreign authority.
The procedure in the United States as described is used
regardless of whether the request concerns a case still at the
investigative stage or one that has already been indicted. In
Poland, the authority of the public prosecutor to issue
subpoenas and to use other compulsory measures exists
independently of the courts. Therefore, in Poland, where the
request concerns a case at the investigative stage and is
handled by the Ministry of Justice, the public prosecutor uses
his power to issue subpoenas to compel the production of
documents or other evidence on behalf of the foreign authority.
Where the request concerns an indicted case and is handled by
the court, the court uses its power to issue subpoenas to
compel the production of documents or other evidence on behalf
of the foreign authority.
With regard to compelling bank records sought by a foreign
government, the process in the United States is the same as
that required for compelling testimony or documents from an
individual or company, as described above, without regard to
the status of the proceedings in the Requesting State. In
Poland, however, the process is different. Banking laws in
Poland provide that the Polish public prosecutors and courts
may compel the production of bank records of persons who have
been charged and notified of the charge. The Polish delegation
stated that a treaty request for bank records on behalf of a
foreign authority would be held to the same standard as that
applied to Polish prosecutors and courts. U.S. law enforcement
authorities, therefore, would have the same access to bank
records as Polish prosecutors and courts. Under Polish law as
it presently exists, the United States can only expect to
obtain bank records from Poland for use in cases that have
already been charged, or where the target has been advised that
he is the subject of a criminal investigation. A target letter
sent to the last known address of the target of a U.S.
investigation would satisfy the notification requirement.
Furthermore, Polish authorities would provide bank records for
a target whose whereabouts are unknown and to whom notice is
therefore impossible. The negotiators engaged in extensive
discussions about proposed legislation in Poland that will make
bank records available at an earlier stage for use in both
domestic and foreign criminal cases, and they agreed that there
would be no changes required to the Treaty to expand the
availability to the United States of bank records whenever new
legislation is passed.
The delegations discussed the penalties for failure to
comply with subpoenas in the United States and in Poland. In
the United States, a person or company failing to comply with a
subpoena may be fined and/or imprisoned. In Poland, authorities
serving a subpoena for the production of documents, upon
refusal by the person being served to produce the documents,
will immediately execute a search of the premises where the
evidence is believed to be located and a seizure of the
evidence.
The delegations agreed that, as a general rule, both
Contracting States will use Article 8(1), rather than Article
14, to compel document production. That is, both delegations
recognized that searches and seizures are serious compulsory
measures affecting the rights of private individuals and, thus,
the delegations agreed that searches and seizures would be used
as a last resort or where other means would be clearly
ineffective. Instead, the Requested State first will attempt to
compel production of documents, records, and articles of
evidence sought by the Requesting State by using subpoenas in
the United States and in Poland.
The criminal laws in both States contain provisions that
sanction the production of false evidence. The second sentence
of Article 8(1) explicitly states that the criminal laws in the
Requested State shall apply in situations where a person in
that State provides false evidence in execution of a request.
The negotiators expect that were any falsehood made in
execution of a request, the Requesting State could ask the
Requested State to prosecute for perjury, and provide the
Requested State with the information or evidence needed to
prove the falsehood.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article.
Article 8(4) permits a witness whose testimony or evidence
is sought to assert a right to decline to provide testimony or
evidence under the laws of the Requesting State. The executing
authority will note the asserted right made under the law of
the Requesting State, but defer to the appropriate authority in
the Requesting State to rule on the merits. The taking of
testimony or evidence, thus, can continue in the Requested
State without delaying or postponing the proceeding whenever
issues involving the law of the Requesting State arise. Both
States recognize the privilege of witnesses against self-
incrimination.
Article 8(5) is primarily for the benefit of the United
States. The United States evidentiary system requires that
evidence that is to be used as proof 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 ofe]vidence produced . . .
pursuant to this Article,'' the negotiators focused on and were
primarily concerned with business records. In order to ensure
the United States that business records provided by Poland
pursuant to the Treaty could be authenticated in a manner
consistent with existing United States law, the negotiators
crafted Form A to track the language of Title 18, United States
Code, Section 3505, the foreign business records authentication
statute. If the Polish authorities properly complete, sign, and
attach Form A to executed documents, or submit Form B
certifying the absence or non-existence of business records, a
United States judge may admit the records into evidence without
the appearance at trial of a witness. The admissibility
provided by this paragraph provides for an exception to the
hearsay rule; however, admissibility extends only to
authenticity and not to relevance, materiality, etc., of the
evidence; whether the evidence is, in fact, admitted is a
determination within the province of the judicial authority
presiding over the proceeding for which the evidence is
provided.
Article 9--Official Documents and Records of Government Agencies
Article 9(1) obligates each State to furnish to the other
copies of publicly available materials (``documents, records,
or information in any form'') in the possession of an
``executive, legislative, or judicial authority in the
Requested State.'' For the United States, this includes
executive, legislative, and judicial units at the federal,
state, and local levels. For Poland, this includes the
executive, legislative, and judicial authorities at the central
and regional government levels. In Poland, the term
``government'' only refers to the executive branch, not the
legislative and judicial branches. Thus, this article
references each branch in both the English and Polish texts.
Paragraph 2 provides that the Requested State may provide
copies of any documents, records, or information in any form
that are in the possession of an executive, legislative, or
judicial authority in that State, but that are not publicly
available, to the same extent and under the same conditions as
such copies would be available to its own law enforcement or
judicial authorities. The Requested State may in its discretion
deny a request pursuant to this paragraph entirely or in part.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty in tax
matters, and such assistance could include tax return
information when appropriate. The United States delegation was
satisfied after discussion that this Treaty is a ``convention
relating to the exchange of tax information'' for purposes of
Title 26, United States Code, Section 6103(k)(4), and the
United States would have the discretion to provide tax return
information to Poland under this article in appropriate cases.
\15\
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\15\ Under 26 U.S.C. 6103(i) information in the files of the
Internal Revenue Service (generally protected from disclosure under 26
U.S.C. 6103) may be disclosed to federal law enforcement personnel in
the United States for use in a non-tax criminal investigations or
proceedings, under certain conditions and pursuant to certain
procedures. The negotiators agreed that this Treaty (which provides
assistance both for tax offenses and in the form of information in the
custody of tax authorities of the Requested State) is a ``convention .
. . relating to the exchange of tax information'' under Title 26,
United States Code, Section 6103(k)(4), pursuant to which the United
States may exchange tax information with treaty partners. Thus, the
Internal Revenue Service may provide tax returns and return information
to Poland through this Treaty when, in a criminal investigation or
prosecution, the Polish authority on whose behalf the request is made
can meet the same conditions required of United States law enforcement
authorities under Title 26, United States Code, Sections 6103(h) and
(i). As an illustration, a Polish request for tax returns to be used in
a non-tax criminal investigation, in accordance with 26 U.S.C.
6103(i)(1)(A), would have to specify that the Polish 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 Polish
criminal statute (not involving tax administration) to which Poland is
or may be a party.
(ii) any investigation which may result in such a proceeding, or
(iii) any Polish proceeding pertaining to enforcement of such a
criminal statute to which Poland is or may be a party. (See 26 U.S.C.
6103(i)(1)(A))
The request would have to be presented to a federal district court
judge or magistrate for an order directing the Internal Revenue Service
to disclose the tax returns as specified at 26 U.S.C. 6103(i)(1)(B).
Before issuing such an order, the judge or magistrate would have to
determine, also in accordance with 26 U.S.C. 6103(i)(1)(B), that:
(i) there is reasonable cause to believe, based upon information
believed to be reliable, 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 Polish criminal investigation or proceeding concerning such
act, and the information sought to be disclosed cannot reasonably be
obtained, under the circumstances, from another source.
In other words, the Polish law enforcement authorities seeking tax
returns would be treated as if they were United States law enforcement
authorities--undergo the same access procedure where they would be held
to the same standards.
---------------------------------------------------------------------------
Article 9(3) is primarily for the benefit of the United
States. It provides for the authentication of records produced
pursuant to this Article by an executive, legislative or
judicial authority responsible for their maintenance. Such
authentication is to be effected through the use of Form C
appended to the Treaty. If the Polish authorities properly
complete, sign, and attach Form C to executed documents, or
submit Form D certifying the absence or non-existence of such
records, a United States judge may admit the records into
evidence as self-authenticating under Rule 902(3) of the
Federal Rules of Evidence. The admissibility provided by this
paragraph provides for an exception to the hearsay rule;
however, admissibility extends only to authenticity and not to
relevance, materiality, etc., of the evidence; whether the
evidence is, in fact, admitted is a determination within the
province of the judicial authority presiding over the
proceeding for which the evidence is provided.
Article 10--Appearance in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6.
Paragraph l provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided.
The third and final sentence of Article 10(1) obliges the
Requested State to ``promptly inform'' the Central Authority of
the Requesting State of the witness' response to the invitation
to appear in the Requesting State. This Treaty does not specify
the means by which this communication must be made, and the
negotiators understood that it could be made either orally or
in writing, but in any event, promptly.
Article 10(2) provides that a person appearing in the
Requesting State pursuant to this Article shall not be
prosecuted, detained, or subjected to any restriction of
personal liberty for acts or convictions that preceded his
leaving the Requested State. These assurances do not protect
against prosecution, punishment or restriction of personal
liberty, with respect to acts committed after departure from
the Requested State, or against civil suits. This article is
intended to apply to persons who are transferred while in
custody pursuant to Article 12 and to those who appear as
civilians and are not incarcerated.
Article 10(3) imposes on the safe conduct provided in
paragraph 1 a time limitation of 15 days which begins to run
after notification that appearance is no longer required and
the person, although free to leave, has remained in the
Requesting State, or has voluntarily returned.
Article 11--Temporary Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On
occasion, the United States Justice Department has arranged
for consenting federal inmates in the United States to be
transported to foreign countries to assist in criminal
proceedings. \16\
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\16\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \17\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \18\
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\17\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 9,
art. 26.
\18\ It is also consistent with Title 18, United States Code,
Section 3508.
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Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty shall be
transferred temporarily from the Requesting State to the
Requested State if the person consents and if the Central
Authorities of both States agree. This would also cover
situations in which a person in custody in the United States on
a criminal matter has sought permission to travel to another
country to be present at a deposition being taken there in
connection with the case. \19\
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\19\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
negotiators contemplated that ``best efforts'' would vary
depending on the information provided in the request, in
accordance with Article 4. The extent of such efforts will
vary, of course, depending on the quality and extent of the
information provided by the Requesting State concerning the
suspected location and last known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Poland to follow a specified
procedure for service) or by the United States Marshal's
Service in instances in which personal service is requested.
Service in Poland typically will be made by mail, unless the
United States specifies that some other form is necessary;
Polish authorities typically will be able to accommodate such
requests.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by an authority of the
Requested State a reasonable time before the date set for any
such appearance. The negotiators agreed that the Requested
State will attempt to find in favor of the Requesting State in
applying the standard.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \20\ Under Polish
law, there is no need for Polish 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. This article creates a formal
framework for handling such requests.
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\20\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1998.)
---------------------------------------------------------------------------
The negotiators agreed 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.
Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that a request from the
United States to Poland will have to satisfy the Polish
evidentiary standard, which is ``a reasonable basis to
believe'' that the specified premises contains articles likely
to be evidence of the commission of an offense.
For the United States to be able to execute a search and
seizure on behalf of Poland, the Polish request must provide
information demonstrating ``probable cause,'' as is required by
the Fourth Amendment to the United States Constitution. The
Polish 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 Poland and that particularly
described evidence of the crime is located at a particularly
described place to be searched in the United States.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request by the
Central Authority of the Requesting State, every official in
the Requested State who has had custody of a seized item shall
certify, through the use of Form E appended to this Treaty, the
identity of the item, the continuity of custody, and any
changes in its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced under
this article. As in Articles 8(5) and 9(3), the injunction that
the certificates be admissible without additional
authentication leaves the trier of fact free to bar use of the
evidence itself, in spite of the certificate, if there is some
reason to do so other than authenticity or chain of custody.
For Poland, the chain of custody is not a significant factor in
the admissibility of evidence.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \21\
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\21\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, Jun. 12 and Aug.
18, 1987; U.S.-Canada Mutual Legal Assistance Treaty, supra note 13;
U.S.-U.K. Mutual Legal Assistance Treaty Concerning the Cayman Islands,
Jul. 3, 1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1,
1994; U.S.-Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-
Panama Mutual Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines
Mutual Legal Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal
Assistance Treaty, Nov. 20, 1990; U.S.-U.K. Mutual Legal Assistance
Treaty, Jan. 6, 1994.
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Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. This would normally be
invoked only if the Central Authority of the Requested State
specifically requests it at the time that the items are
delivered to the Requesting State. It is anticipated that
unless original records or articles of significant intrinsic
value are involved, the Requested State will not usually
request return of the items, but this is a matter best left to
development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Poland in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Poland, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \22\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the U.S.
since these offenses are predicate offenses under U.S. money
laundering laws. \23\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
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\22\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\23\ Title 18, United States Code, Section 1956(c)(7)(B).
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If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B) allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \24\ The United States delegation
expects that Article 16 of the Treaty will enable this
legislation to be even more effective.
---------------------------------------------------------------------------
\24\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so.
With respect to restitution, the negotiators discussed
whether the respective Contracting Parties can collect fines
and make restitution to victims. \25\ Specifically, the
negotiators considered whether the Contracting Parties, in
order to make a victim whole, would be able to move against
assets of a person who defrauded the victim of money. In both
the United States and Poland, the victim could file a civil
suit and would 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.
---------------------------------------------------------------------------
\25\ See U.S.C. 3663 (b).
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\26\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
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\26\ See Title 18, United States Code, Section 981 (i)(1).
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Article 17--Compatibility with Other Treaties
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Poland law on letters rogatory completely undisturbed, and
would not alter any pre-existing agreements concerning
investigative assistance. \27\
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\27\ See e.g., the U.S.-Poland Convention for the Avoidance of
Double Taxation and the Prevention of Fiscal Evasion with Respect to
Taxes on Income, with Related Notes, Oct. 8, 1974, 28 U.S.T. 891,
T.I.A.S. 8486.
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Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which Treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \28\ It
is anticipated that the Central Authorities will conduct
regular consultations pursuant to this article.
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\28\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 13, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 21, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 5, art. 18.
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Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification
Paragraph 2 provides that the Treaty shall enter into force
30 days after the exchange of instruments of ratification.
Paragraph 3 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and Trinidad and Tobago on Mutual Legal Assistance in Criminal Matters
On March 4, 1996, the United States signed a treaty with
the Republic of Trinidad and Tobago (``Trinidad and Tobago'')
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 with Trinidad and Tobago is a major advance for
the United States in its efforts to win the cooperation of
Eastern Caribbean countries in combating organized crime,
transnational terrorism, and international drug trafficking.
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. Trinidad and
Tobago intends to enact implementing legislation for the
Treaty, as it currently has no specific mutual legal assistance
laws in force.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Trinidad
and Tobago, and other legal measures taken prior to the filing
of formal charges in either State. \1\ The term ``proceedings''
was intended to cover the full range of proceedings in a
criminal case, including such matters as bail and sentencing
hearings. \2\ It was also agreed that since the phrase
``proceedings related to criminal matters'' is broader than the
investigation, prosecution or sentencing process itself,
proceedings covered by the Treaty need not be strictly criminal
in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \3\ yet such proceedings are covered by the
Treaty.
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\1\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Trinidad and
Tobago under the Treaty in connection with investigations prior to
charges being filed in Trinidad and Tobago. Prior to the 1996
amendments to Title 28, United States Code, Section 1782, some U.S.
courts had interpreted that provision to require that assistance be
provided in criminal matters only if formal charges have already been
filed abroad, or are ``imminent,'' or ``very likely.'' McCarthy, ``A
Proposed Uniform Standard for U.S. Courts in Granting Requests for
International Judicial Assistance,'' 15 Fordham Int'l Law J. 772
(1991). The 1996 amendment eliminates this problem, however, by
amending subsec. (a) to state ``including criminal investigation
conducted before formal accusation.'' In any event, this Treaty was
intentionally written to cover criminal investigations that have just
begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\2\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\3\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
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Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this article, however, makes it clear that ``dual
criminality'' is not mandatory under this Treaty, and the
Central Authority of The Requested State may, in its
discretion, provide assistance under the Treaty even when the
matter under investigation is not criminal under the Requested
State's law. The discretion to grant assistance in the absence
of dual criminality should enable the Treaty to function in the
widest range of circumstances. The Central Authorities will
apply this provision, and are expected to give a liberal
interpretation to the dual criminality element, or to exercise
discretion in granting assistance regardless of dual
criminality, in order to aid one another as often as possible.
This type of limited dual criminality provision is found in
other U.S. mutual legal assistance treaties. \4\ During the
negotiations, the United States delegation received assurances
from the Trinidad and Tobago delegation that assistance is
available under the Treaty to United States investigations of
key crimes such as drug trafficking, \55\ terrorism, \6\
organized crime and racketeering, \7\ money laundering, tax
fraud or tax evasion, crimes against environmental laws, and
antitrust law violations.
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\4\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
\5\ This includes investigations of charges of conspiracy and
engaging in a continuing criminal enterprise. See 18 U.S.C. Sec. 2; 21
U.S.C. Sec. 848.
\6\ See, e.g., 18 U.S.C. Sec. Sec. 115, 1203, 2331-38; 49 U.S.C.
Sec. 1472.
\7\ See 18 U.S.C. Sec. Sec. 1961-68. Trinidad and Tobago does not
have an identical offense, but does have statutes prohibiting graft and
corruption.
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Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \8\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Trinidad and Tobago
by letters rogatory, an avenue of international assistance that
the Treaty leaves undisturbed. Similarly, the paragraph
provides that the Treaty is not intended to create any right in
a private person to suppress or exclude evidence provided
pursuant to the Treaty, or to impede the execution of a
request.
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\8\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
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Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Trinidad and Tobago on behalf of federal
agencies, state agencies, and local law enforcement authorities
in the United States. The Trinidad and Tobago Central Authority
would make all requests emanating from officials in Trinidad
and Tobago.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \9\
Paragraph 2 also states that the Attorney General of Trinidad
and Tobago or a person designated by the Attorney General will
serve as the Central Authority for Trinidad and Tobago.
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\9\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph 1(a) permits the Requested State to deny a
request if a request involves an offense under military law
that would not be an offense under ordinary criminal law.
Paragraph 1(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or similar essential interests of
the Requested State. This would include cases when assistance
might involve disclosure of information that is classified for
national security reasons. It is anticipated that the
Department of Justice, in its role as Central Authority for the
United States, will work closely with the Department of State
and other government agencies to determine whether to execute
requests that might fall in this category. All United States
mutual legal assistance treaties contain provisions permitting
the Requested State to decline to execute requests if execution
would prejudice its essential interests.
The delegations agreed that the phrase ``essential
interests'' is intended to limit narrowly the class of cases in
which assistance may be denied. It is not enough that the
Requesting State's case is one that would be inconsistent with
public policy had it been brought in the Requested State.
Rather, the Requested State must be convinced that execution of
the request would seriously conflict with significant public
policy. An example is a request involving prosecution by the
Requesting State of conduct that occurred in the Requested
State that is constitutionally protected in the Requested
State.
It was agreed that ``essential interests'' may include
interests unrelated to national military or political security,
and may be invoked if the execution of a request would violate
essential United States interests related to the fundamental
purposes of the Treaty. For example, one fundamental purpose of
the Treaty is to enhance law enforcement cooperation. The
attainment of that goal would be hampered if sensitive law
enforcement information available under the Treaty were to fall
into the ``wrong hands.'' Accordingly, the United States
Central Authority may invoke paragraph 1(b) to decline to
provide sensitive or confidential drug-related information
pursuant to a Treaty request whenever it determines, after
appropriate consultation with law enforcement, intelligence,
and foreign policy agencies, that a senior foreign government
official who likely will have access to the information is
engaged in or facilitates the production or distribution of
illegal drugs, and is using the request to the prejudice of a
United States investigation or prosecution. \10\
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\10\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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Paragraph 1(c) permits the denial of a request not made in
conformity with the Treaty.
Paragraph 2 is similar to paragraph 2 of the United States-
Switzerland Mutual Legal Assistance Treaty, \11\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to paragraph 1. For example, a Contracting Party might
request information that could be used either in a routine
criminal case (which is within the scope of the Treaty) or in a
political prosecution (which is subject to refusal). This
paragraph permits the Requested State to provide the
information on condition that it be used only in the routine
criminal case. Naturally, the Requested State should notify the
Requesting State of any proposed conditions before actually
delivering the evidence in question, thereby according the
Requesting State an opportunity to indicate whether it is
willing to accept the evidence subject to the conditions. If
the Requesting State does accept the evidence subject to the
conditions, it must honor the conditions.
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\11\ Technical Analysis to the Treaty between the U.S. and
Switzerland on Mutual Assistance in Criminal Matters, signed May 25,
1973. U.S. Senate Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
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Paragraph 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of any reasons for denying assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings and enable the Requesting State to prepare
future requests better.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Trinidad and Tobago.
Rather, it is anticipated that when a request from Trinidad and
Tobago requires compulsory process for execution, the United
States Department of Justice would ask a federal court to issue
the necessary process under Title 28, United States Code,
Section 1782, and the provisions of the Treaty. \12\
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\12\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
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Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Paragraph 2 is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \13\, and provides,
that ``[r]equests shall be executed in accordance with the laws
of the Requested State except to the extent that this Treaty
provides otherwise.'' Thus, the method of executing a request
for assistance under the Treaty must be in accordance with the
Requested State's laws absent specific contrary procedures in
the Treaty itself. Thus, neither State is expected to take any
action pursuant to a Treaty request which would be prohibited
under its laws. For the United States, the Treaty is intended
to be self-executing; no new or additional legislation will be
needed to carry out the obligations undertaken.
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\13\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989.
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`The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Trinidad
and Tobago authorities in collecting evidence in order to
assure the admissibility of that evidence at trial. For
instance, United States law permits documentary evidence taken
abroad to be admitted in evidence if the evidence is duly
certified and the defendant has been given fair opportunity to
test its authenticity. \14\ Trinidad and Tobago law currently
contains no similar provision. Thus, documents assembled in
Trinidad and Tobago in strict conformity with Trinidad and
Tobago procedures on evidence might not be admissible in United
States courts. Similarly, United States courts utilize
procedural techniques such as videotape depositions to enhance
the reliability of evidence taken abroad, and some of these
techniques, while not forbidden, are not used in Trinidad and
Tobago.
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\14\ Title 18, United States Code, Section 3505.
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Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 3 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested State may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \15\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
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\15\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual
Legal Assistance Treaty, supra note 4, art. 5(5).
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Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
Treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \16\
Article 6 does assume that the Requesting State will pay fees
of expert witnesses, translation, interpretation and
transcription costs, and allowances and expenses related to
travel of persons pursuant to Articles 10 and 11.
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\16\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 15, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 4, art. 6.
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Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it.
The Trinidad and Tobago delegation expressed particular
concern that information supplied by Trinidad and Tobago in
response to United States requests must receive real and
effective confidentiality, and not be disclosed under the
Freedom of Information Act. Both delegations agreed that since
this article permits the Requested State to prohibit the
Requesting State's disclosure of information for any purpose
other than that stated in the request, a Freedom of Information
Act request that seeks information that the United States
obtained under the Treaty would have to be denied if the United
States received the information on the condition that it be
kept confidential.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that there is an obligation to do
so under the Constitution of the Requesting State in a criminal
prosecution. Any such proposed disclosure shall be notified by
the Requesting State to the Requested State in advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
paragraphs 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Trinidad and Tobago authority seeks
to use information or evidence obtained from the United States
in a manner inconsistent with this article, the person can
inform the Central Authority of the United States of the
allegations for consideration as a matter between the
Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article.
Paragraph 4, when read together with Article 5(3), ensures
that no person will be compelled to furnish information if he
has a right not to do so under the law of the Requested State.
Thus, a witness questioned in the United States pursuant to a
request from Trinidad and Tobago is guaranteed the right to
invoke any of the testimonial privileges (e.g., attorney
client, interspousal) available in the United States as well as
the constitutional privilege against self-incrimination, to the
extent that it might apply in the context of evidence being
taken for foreign proceedings. \17\ A witness testifying in
Trinidad and Tobago may raise any of the similar privileges
available under Trinidad and Tobago law.
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\17\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \18\
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\18\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, supra note 15, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 4,
art. 8(4).
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Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that the second and third sentences of
this paragraph provide for the admissibility of authenticated
documents as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing, and does not need implementing
legislation.
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance, and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Trinidad and Tobago under this article in
appropriate cases. \19\
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\19\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated in accordance with the procedures
specified in the request, and if authenticated in this manner,
the evidence shall be admissible in evidence in the Requesting
State. Thus, the Treaty establishes a procedure for
authenticating official foreign documents that is consistent
with Rule 902(3) of the Federal Rules of Evidence and Rule 44,
Federal Rules of Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6 if requested by the person whose appearance is
sought.
Paragraph l provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while a person
is in the Requesting State. This ``safe conduct'' is limited to
acts or convictions that preceded the witness's departure from
the Requested State. It is understood that this provision would
not prevent the prosecution of a person for perjury or any
other crime committed while in the Requesting State.
Paragraph 3 states that the safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer
required, or if the person leaves the territory of the
Requesting State and thereafter returns to it. However, the
competent authorities of the Requesting State may extend the
safe conduct up to fifteen days if they determine that there is
good cause to do so.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \20\
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\20\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \21\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \22\
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\21\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973,
art. 26.
\22\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State if
the person consents and if the Central Authorities of both
States agree. This would also cover situations in which a
person in custody in the United States on a criminal matter has
sought permission to travel to another country to be present at
a deposition being taken there in connection with the case.
\23\
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\23\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
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Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a person under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State. The
extent of such efforts will vary, of course, depending on the
quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. It is
expected that when the United States is the Requested State,
service under the Treaty will be made by registered mail (in
the absence of any request by Trinidad and Tobago to follow a
specified procedure for service), or by the United States
Marshals Service in instances when personal service is
requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \24\ This article
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
\24\ See, e.g., United States ex rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No. 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984).
---------------------------------------------------------------------------
Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Trinidad and Tobago will have to be
supported by a showing of probable cause for the search. A
United States request to Trinidad and Tobago would have to
satisfy the corresponding evidentiary standard there. It is
contemplated that such requests are to be carried out in strict
accordance with the laws of the Requested State.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced under
this article. As in Articles 8(5) and 9(3), the injunction that
the certificates be admissible without additional
authentication leaves the trier of fact free to bar use of the
evidence itself, in spite of the certificate, if there is some
reason to do so other than authenticity or chain of custody.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \25\
---------------------------------------------------------------------------
\25\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 4; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 18;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 15; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 4; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-U.K. Mutual Legal Assistance Treaty, Jan.
6, 1994.
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Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. The delegations understood
that this requirement would be invoked only if the Central
Authority of the Requested State specifically requests it at
the time that the items are delivered to the Requesting State.
It is anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Trinidad and Tobago in combating
narcotics trafficking. One significant strategy in this effort
is action by United States authorities to seize and confiscate
money, property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Trinidad and Tobago, they could be
seized under 18 U.S.C. 981 in aid of a prosecution under Title
18, United States Code, Section 2314, \26\ or be subject to a
temporary restraining order in anticipation of a civil action
for the return of the assets to the lawful owner. Proceeds of a
foreign kidnapping, robbery, extortion or a fraud by or against
a foreign bank are civilly and criminally forfeitable in the
U.S. since these offenses are predicate offenses under U.S.
money laundering laws. \27\ Thus, it is a violation of United
States criminal law to launder the proceeds of these foreign
fraud or theft offenses, when such proceeds are brought into
the United States.
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\26\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\27\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B), allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \28\ The United States delegation
expects that Article 16 of the Treaty will enable this
legislation to be even more effective.
---------------------------------------------------------------------------
\28\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \29\
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\29\ In Trinidad and Tobago, unlike the U.S., the law does not
currently allow for civil forfeiture. However, Trinidad and Tobago law
does permit forfeiture in criminal cases, and ordinarily a defendant
must be convicted in order for Trinidad and Tobago to confiscate the
defendant's property.
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\30\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
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\30\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
Article 17--Compatibility with Other Treaties
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Trinidad and Tobago law on letters rogatory completely
undisturbed, and would not alter any pre-existing agreements
concerning investigative assistance. \31\
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\31\ See e.g., the U.S.-Trinidad and Tobago Agreement for the
Exchange of Information With Respect to Taxes, Jan. 11, 1989, T.I.A.S.
11607.
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Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which Treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \32\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
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\32\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 4, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 15, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 25, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 4, art. 18.
---------------------------------------------------------------------------
Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedures
for entry into force and the exchange of diplomatic notes on
the completion of these procedures. Paragraph 1 also provides
that the Treaty shall enter into force immediately upon the
exchange of such diplomatic notes.
Paragraph 2 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
Technical Analysis of the Treaty Between the United States of America
and the Republic of Venezuela on Mutual Legal Assistance in Criminal
Matters
On October 12, 1997, the United States signed a treaty with
Venezuela 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 officials in need of foreign evidence for use in
criminal cases.
The Treaty is expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
international drug and firearms trafficking, money laundering,
large-scale international fraud, and other serious offenses.
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. Venezuela will
enact new legislation for implementing the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators agreed that the term ``investigations''
includes grand jury proceedings in the United States and
similar pre-charge proceedings in Venezuela, and other legal
measures taken prior to the filing of formal charges in either
State. \1\ The term ``proceedings'' was intended to cover the
full range of proceedings in a criminal case, including such
matters as bail and sentencing hearings. \2\ It was also agreed
that since the phrase ``proceedings related to criminal
matters'' is broader than the investigation, prosecution or
sentencing process itself, proceedings covered by the Treaty
need not be strictly criminal in nature. For example,
proceedings to forfeit to the government the proceeds of
illegal drug trafficking may be civil in nature; \3\ yet such
proceedings are covered by the Treaty.
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\1\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Venezuela under
the Treaty in connection with investigations prior to charges being
filed in Venezuela. Prior to the 1996 amendments to Title 28, United
States Code, Section 1782, some U.S. courts had interpreted that
provision to require that assistance be provided in criminal matters
only if formal charges have already been filed abroad, or are
``imminent,'' or ``very likely.'' McCarthy, ``A Proposed Uniform
Standard for U.S. Courts in Granting Requests for International
Judicial Assistance,'' 15 Fordham Int'l Law J. 772 (1991). The 1996
amendment to Section 1782 effectively overruled these decisions,
however, by amending subsec. (a) to state ``including criminal
investigation conducted before formal accusation.'' In any event, this
Treaty was intentionally written to cover criminal investigations that
have just begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\2\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This interpretation poses an
unnecessary obstacle to the execution of requests concerning matters
which are at the investigatory stage, or which are customarily handled
by administrative officials in the Requesting State. Since this
paragraph of the Treaty specifically permits requests to be made in
connection with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\3\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this article makes it clear that there is no requirement
of dual criminality under this Treaty for cooperation, except
with respect to assistance or cooperation in connection with
searches, seizures, and forfeitures. Thus, assistance may be
provided even when the criminal matter under investigation in
the Requesting State would not be a crime in the Requested
State. However, if the request relates to a search, seizure, or
forfeiture, the Central Authority of the Requested State must
first determine whether the act to which the request relates is
punishable as an offense under the laws of the Requested State.
This type of limited dual criminality provision is found in
other U.S. mutual legal assistance treaties. \4\ During the
negotiations, the United States delegation received assurances
from the Venezuela delegation that assistance would be
available under the Treaty to the United States in
investigations of all major criminal matters including:
narcotics trafficking, terrorism, organized crime and
racketeering, money laundering, fraud, Export Control Act
violations, child exploitation or obscenity, tax offenses,
antitrust offenses, and crimes against the environment or
endangered species.
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\4\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \5\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Venezuela by
letters rogatory, an avenue of international assistance that
the Treaty leaves undisturbed. Similarly, the paragraph
provides that the Treaty is not intended to create any right on
the part of any private person to obtain, suppress, or exclude
evidence, or to impede the execution of a request for
assistance.
---------------------------------------------------------------------------
\5\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Venezuela on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. The Venezuelan Central Authority would make all
requests emanating from officials in Venezuela.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \6\
Article II(2) of the Treaty also states that the Venezuelan
Attorney General (i.e., the ``Fiscal General'') will serve as
the Central Authority for Venezuela.
---------------------------------------------------------------------------
\6\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
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Paragraph 3 explains that the Central Authority of the
Requested State will process requests directly, unless it is
appropriate to transmit the request to other competent
authorities for execution. This paragraph also states that the
Central Authorities will promptly execute requests received
pursuant to this Treaty.
Paragraph 4 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This Article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Central Authority of the
Requested State to deny the request if it relates to a
political offense. It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the context of extradition treaties for determining what is a
``political offense.'' This restriction is similar to that
found in other U.S. mutual legal assistance treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny the request if it relates to an offense
under military law which would not be an offense under ordinary
criminal law. Similar clauses appear in many other U.S. mutual
assistance treaties.
Paragraph (1)(c) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security, public order, or similar
essential interests of that State. All United States mutual
legal assistance treaties contain provisions allowing the
Requested State to decline to execute a request if execution
would prejudice its essential interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies in deciding whether to deny a request on this ground.
The delegations also agreed that the phrase ``essential
interests'' was intended to narrowly limit the class of cases
in which assistance may be denied. It would not be enough that
the Requesting State's case is one that would be inconsistent
with public policy had it been brought in the Requested State.
Rather, the Requested State must be convinced that execution of
the request would seriously conflict with significant public
policy. An example might be a request involving prosecution by
the Requesting State of conduct which occurred in the Requested
State and is constitutionally protected in that State.
However, it was agreed that ``essential interests'' could
include interests unrelated to national military or political
security, and be invoked if the execution of a request would
violate essential interests related to the fundamental purposes
of the Treaty. For example, one fundamental purpose of the
Treaty is to enhance law enforcement cooperation, and attaining
that purpose would be hampered if sensitive law enforcement
information available under the Treaty were to fall into the
wrong hands. Therefore, the United States Central Authority may
invoke Paragraph 1(c) to decline to provide sensitive or
confidential drug related information pursuant to a request
under this Treaty whenever it determines, after appropriate
consultation with law enforcement, intelligence, and foreign
policy agencies, that a senior foreign government official who
will have access to the information is engaged in or
facilitates the production or distribution of illegal drugs and
is using the request to the prejudice of a U.S. investigation
or prosecution. \7\
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\7\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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Paragraph (1)(d) permits the Central Authority of the
Requested State to deny a request if the request is not made in
conformity with the provisions of this Treaty.
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \8\ and obliges the
Requested State to consider imposing appropriate conditions on
its assistance in lieu of denying a request outright pursuant
to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
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\8\ 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 3 requires that the Central Authority of the
Requested State notify the Central Authority of the Requesting
State of the basis for any denial of assistance. This ensures
that, when a request is only partly executed, the Requested
State will provide some explanation for not providing all of
the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations,'' in accordance
with its domestic laws. A request in another form must be
presented in writing within ten days. The Venezuelan delegation
explained that their domestic law required that requests be
presented in writing, but that an oral request could initiate
the process with respect to some matters pending receipt of the
written documents. This paragraph also requires that requests
be accompanied by a translation in the language of the
Requested State.
Paragraph 2 lists the four kinds of information that are
deemed crucial to the efficient operation of the Treaty, and
must be included in each request. Paragraph 3 outlines kinds of
information which are important but not always crucial, and
which should be provided ``to the extent necessary and
possible.'' In keeping with the intention of the Parties that
requests be as simple and straightforward as possible, there is
no requirement that a request be legalized or certified in any
particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Venezuela. Rather, it is
anticipated that when a request from Venezuela requires
compulsory process for execution, the United States Department
of Justice would ask a federal court to issue the necessary
process under Title 28, United States Code, Section 1782, and
the provisions of the Treaty. The second sentence in Article
V(1) reads, ``[t]he Courts of the Requested State shall have
authority to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' \9\ This language reflects
an understanding that the Parties intend to provide each other
with every available form of assistance from the judiciary in
executing mutual assistance requests.
---------------------------------------------------------------------------
\9\ This paragraph of the Treaty, thus, specifically authorizes
United States courts to use all of their powers to issue subpoenas and
other process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Paragraph 2 is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty \10\, and provides,
that ``[r]equests shall be executed in accordance with the laws
of the Requested State except to the extent that this Treaty
provides otherwise.'' Thus, the method of executing a request
for assistance under the Treaty must be in accordance with the
Requested State's internal laws absent specific contrary
procedures in the Treaty itself. Neither State is expected to
take any action pursuant to a treaty request which would be
prohibited under its internal laws. For the United States, the
Treaty is intended to be self-executing; no new or additional
legislation will be needed to carry out the obligations
undertaken.
---------------------------------------------------------------------------
\10\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and
Venezuela authorities in collecting evidence in order to assure
the admissibility of that evidence at trial. For instance,
United States law permits documentary evidence taken abroad to
be admitted in evidence if the evidence is duly certified and
the defendant has been given fair opportunity to test its
authenticity. \11\ Venezuelan law currently contains no similar
provision. Thus, documents assembled in Venezuela in strict
conformity with Venezuelan procedures on evidence might not be
admissible in United States courts. Similarly, United States
courts utilize procedural techniques such as videotape
depositions to enhance the reliability of evidence taken
abroad, and some of these techniques, while not forbidden, are
not used in Venezuela.
---------------------------------------------------------------------------
\11\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner that would render the evidence
inadmissible or less persuasive in the Requesting State. For
this reason, Paragraph 3 requires the Requested State to follow
the procedure outlined in the request to the extent that it
can, even if the procedure is not that usually employed in its
own proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation, prosecution, or legal proceeding in
the Requested State. The Central Authority of the Requested
Party may, in its discretion, take such preliminary action as
deemed advisable to obtain or preserve evidence that might
otherwise be lost before the conclusion of the investigation or
legal proceedings in that State. The paragraph also allows the
Requested State to provide the information sought to the
Requesting State subject to conditions needed to avoid
interference with the Requested State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article IV(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \12\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\12\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); U.S.-Philippines Mutual
Legal Assistance Treaty, supra note 4, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This Article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \13\
Article 6 does, however, oblige the Requesting State to pay
fees of expert witnesses, the costs of translation,
interpretation, and transcription, and allowances and expenses
related to travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\13\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 12, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 4, art. 6.
---------------------------------------------------------------------------
Paragraph 2 of Article VI was included to satisfy
Venezuelan concerns that a very large and complex request from
the United States might drain the budget of their Central
Authority. This paragraph provides for consultation between the
Central Authorities when either Party considers the costs to be
incurred in executing a request to be extraordinary. Such
consultations would serve the purpose of establishing the terms
and conditions under which the assistance could be provided.
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
IV(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State shall take ``all possible legal
measures'' to comply with them. This language was used because
the purpose of the Treaty is the production of evidence for use
at trial, and that purpose would be frustrated if the Requested
State could routinely permit the Requesting State to see
valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it. If assistance
is provided with a condition under this paragraph, the U.S.
could deny public disclosure under the Freedom of Information
Act. If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). It was the express understanding
of the negotiators that the ``all possible legal measures''
clause of Paragraph 2 would allow the use or disclosure of
information to the extent that there is an obligation to do so
under the Constitution of the Requesting State in a criminal
prosecution.
Paragraph 3 states that once information or evidence
obtained under the Treaty has been revealed to the public in
accordance with paragraphs 1 or 2, the Requesting State is free
to use the evidence for any purpose. Once evidence obtained
under the Treaty has been revealed to the public in a trial,
that information effectively becomes part of the public domain,
and is likely to become a matter of common knowledge, perhaps
even be described in the press. The negotiators noted that once
this has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article I(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Venezuelan authority seeks to use
information or evidence obtained from the United States in a
manner inconsistent with this article, the person can inform
the Central Authority of the United States of the allegations
for consideration as a matter between the Contracting Parties.
Article 8--Testimony and Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
shall be summoned and, if necessary, compelled, to appear and
testify or produce items, including documents, records, and
articles of evidence. The compulsion contemplated by this
Article can be accomplished by subpoena or any other means
available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that, unless prohibited from doing so
by its domestic law, any persons specified in the request may
be permitted by the Requested State to be present and pose
questions during the taking of testimony or production of
evidence under this Article.
Paragraph 4 requires that if a witness attempts to assert a
claim of immunity, incapacity or privilege under the laws of
the Requesting State, the Requested State will nevertheless
take the desired testimony or evidence and turn it over to the
Requesting State along with notice that it was obtained over a
claim of privilege. The applicability of the privilege can then
be determined in the Requesting State, where the scope of the
privilege and the legislative and policy reasons underlying the
privilege are best understood. A similar provision appears in
many of our recent mutual legal assistance treaties. \14\
---------------------------------------------------------------------------
\14\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2); U.S.-Mexico Mutual Legal Assistance Treaty, Supra note 12, art.
7(2); U.S.-Philippines Mutual Legal Assistance Treaty, supra note 4,
art. 8(4).
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Article 9--Records of Government Agencies
Paragraph 1 obliges each State, upon request, to furnish
the other with copies of publicly available records, including
documents or information in any form, possessed by government
departments and agencies in the Requested State. The
negotiators intended this provision to include all such records
in the executive, judicial, and legislative units of the
Federal, State, and local level in each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision is necessary
because government files in each State contain some kinds of
information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Venezuela under this article in
appropriate cases. \15\
---------------------------------------------------------------------------
\15\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Article 10--Testimony and Evidence in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article VI.
Paragraph l provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided.
Paragraph 2 allows that, upon request by the invited
person, the Requesting Party may provide security guarantees
for that person during his or her presence in that State.
Paragraph 3 provides that the Central Authority of the
Requesting State may, in its discretion, determine that a
person who is in the Requesting State pursuant to this Article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while he is in
the Requesting State. Such safe conduct is limited to acts or
convictions which preceded the witness' departure from the
Requested State. Accordingly, this provision does not prevent
the prosecution of a person for perjury or any other crime
committed while in the Requesting State. Since the decision to
offer such safe conduct may have to be made by the prosecutor
or the judge responsible for the potential criminal charges,
not by the Central Authority alone, the Central Authority may
need to consult with other officials regarding any proposal to
offer safe conduct under this paragraph.
Paragraph 4 provides that a person appearing in the
Requesting State may not be required to provide testimony or
give statements in proceedings other than those specified in
the request, unless the person consents in writing and the
Central Authorities of both Parties agree.
Paragraph 5 states that the safe conduct contemplated in
this Article shall cease ten days after the Central Authority
of the Requesting State has notified the Central Authority of
the Requested State that the person's presence is no longer
required, or when the person, having left the territory of the
Requesting Party, voluntarily returns to it.
Article 11--Transfer of Persons in Custody or Subject to Criminal
Proceedings
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \16\
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\16\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \17\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \18\ The phrase ``or
subject to criminal proceedings'' was specifically added to
ensure that the Article would encompass persons who are on
parole or under probation or other form of supervision by
authorities of the State.
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\17\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note 8,
art. 26.
\18\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
---------------------------------------------------------------------------
Paragraph 2 provides that a person in the custody of or
subject to criminal proceedings in the Requested State whose
presence in the Requesting State is sought for purposes of
assistance under this Treaty may be transferred from the
Requesting State to the Requested State for that purpose if the
person consents in writing and if the Central Authorities of
both States agree. This would also cover situations in which a
person in custody in the United States on a criminal matter has
sought permission to travel to another country to be present at
a deposition being taken there in connection with the case.
\19\
---------------------------------------------------------------------------
\19\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
---------------------------------------------------------------------------
Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This Article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
of our mutual legal assistance treaties. The Treaty requires
that the Requested State take ``all necessary measures'' to
locate the persons or items sought by the Requesting State. The
standard language in U.S. mutual legal assistance treaties
requiring the use of ``best efforts'' was unacceptable to the
Venezuelan delegation because they deemed such language too
vague for purposes of this provision. After discussion,
however, the negotiators agreed that the term ``necessary
measures'' was intended to impose a level of commitment
comparable to that imposed by the term ``best efforts'' as
applied in the context of other U.S. treaties.
It was the understanding of the negotiators that the
obligation to locate a person or item is limited to persons or
items that are or may be in the territory of the Requested
State. Thus, the United States would not be obliged to attempt
to locate persons or items which may be in third countries. In
all cases, the Requesting State would be expected to supply all
available information about the last known location of any
person or item sought.
Article 13--Service of Documents
This Article creates an obligation on the Requested State
to ``take all necessary measures'' to effect the service of
documents, such as summons, complaints, subpoenas, or other
legal papers, relating in whole or in part to a Treaty request.
Several U.S. mutual legal assistance treaties contain a similar
provision that imposes a ``best efforts'' obligation on the
parties. As with Article XII, the Venezuelan delegation
considered the term ``best efforts'' too vague in this context.
The Parties therefore agreed to use the language ``necessary
measures'', which was intended to embody a standard analogous
to that of ``best efforts''.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Venezuela to follow a
specified procedure for service) or by the United States
Marshal's Service in instances in which personal service is
requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782, \20\ and
Venezuela's courts have the power to execute such requests.
This article creates a formal framework for handling such
requests.
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\20\ See e.g., United States ex Rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984).
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Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Venezuela will have to be supported by a
showing of probable cause for the search. A United States
request to Venezuela would have to satisfy the corresponding
evidentiary standard there, which is roughly the same.
Paragraph 3 states that the Requested State may require
that the Requesting State agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred. This article is similar to provisions in
many other United States mutual legal assistance treaties. \21\
---------------------------------------------------------------------------
\21\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 4; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 14;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 12; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.-Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 4; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-U.K. Mutual Legal Assistance Treaty, Jan.
6, 1994.
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Article 15--Return of Items
This article provides that any documents, records, or
articles of evidence furnished under the Treaty must be
returned to the Requested State as soon as possible. This would
normally be invoked only if the Central Authority of the
Requested State specifically requests it at the time that the
items are delivered to the Requesting State. It is anticipated
that unless original records or articles of significant
intrinsic value are involved, the Requested State will not
usually request return of the items, but this is a matter best
left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Venezuela in combating narcotics
trafficking. One significant strategy in this effort is action
by United States authorities to seize and confiscate money,
property, and other proceeds of drug trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds,
fruits or instrumentalities of offenses that may be forfeitable
or otherwise subject to seizure. The term ``proceeds, fruits or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds, fruits, or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Venezuela, they could be seized under 18
U.S.C. 981 in aid of a prosecution under Title 18, United
States Code, Section 2314, \22\ or be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnapping, robbery, extortion or a fraud by or against a
foreign bank are civilly and criminally forfeitable in the U.S.
since these offenses are predicate offenses under U.S. money
laundering laws. \23\ Thus, it is a violation of United States
criminal law to launder the proceeds of these foreign fraud or
theft offenses, when such proceeds are brought into the United
States.
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\22\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\23\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B) allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act, Title 21, United States Code, Section 853)
within whose jurisdiction such offense or activity would be
punishable by death or imprisonment for a term exceeding one
year if such act or activity had occurred within the
jurisdiction of the United States.'' This is consistent with
the laws in other countries, such as Switzerland and Canada;
there is a growing trend among nations toward enacting
legislation of this kind in the battle against narcotics
trafficking. \24\ The United States delegation expects that
Article 16 of the Treaty will enable this legislation to be
even more effective.
---------------------------------------------------------------------------
\24\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds, fruits or
instrumentalities of offenses, to restitution to crime victims,
or to the collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so.
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participated directly or indirectly in the seizure or
forfeiture of the property. Under regulations promulgated by
the Attorney General, the amount transferred generally reflects
the contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\25\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
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\25\ See Title 18, United States Code, Section 981 (i)(1).
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Article 17--Authentication and Certification
Paragraph 1 of this article provides that notwithstanding
any authentication or certification necessary under its law,
the Requested State shall authenticate any document, record, or
copy thereof, or provide a certification regarding any article,
in the manner requested by the Requesting State, if this is not
incompatible with the laws of the Requested State.
Paragraph 2 states that for the purpose of facilitating the
use of the special authentications or certifications mentioned
above, the Requesting State shall enclose in the request the
appropriate forms or describe the particular procedure to be
followed.
Although in many U.S. mutual legal assistance treaties the
forms for authentication and certification are appended to the
treaty, the Venezuelan delegation insisted that such forms not
be included in this treaty because under Venezuelan practice
equivalent but different documents are often used.
Nevertheless, this article enables the Requesting State to
enclose with each request the forms it wishes the Requested
States to use, and such forms shall be used if not incompatible
with the Requested State's laws.
Article 18--Compatibility with Other Treaties
This Article states that assistance and procedures provided
by this Treaty shall not prevent either Party from granting
assistance to the other through the provisions of other
applicable international agreements to which they are parties.
The Article further states that the Parties may also provide
assistance to each other pursuant to any bilateral arrangement,
agreement, or practice that may be applicable, consistent with
their respective domestic laws. The Treaty thus leaves
completely undisturbed the provisions of United States and
Venezuelan law on letters rogatory, and does not alter any pre-
existing executive agreements concerning investigative
assistance. \26\
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\26\ See, e.g., U.S.-Venezuela Agreement on Procedures for Mutual
Assistance in connection with the Boeing Company Matter, May 31, 1977,
28 U.S.T. 5219, T.I.A.S. 8623, related agreement Dec. 6 and 8, 1978, 30
U.S.T. 2254, T.I.A.S. 9333, 1171 U.N.T.S. 105; U.S.-Venezuela Agreement
Regarding Cooperation in the Prevention and Control of Money Laundering
Arising from Illicit Trafficking in Narcotic Drugs and Psychotropic
Substances, with attachment, Nov. 5, 1990; U.S.-Venezuela Agreement for
Mutual Assistance in the Administration of Justice in Connection with
Certain Banking, Financial, and Other Institutions, Mar. 17, 1995.
---------------------------------------------------------------------------
Article 19--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \27\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this Article.
---------------------------------------------------------------------------
\27\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 4, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 12, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 21, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 4, art. 18.
---------------------------------------------------------------------------
Article 20--Entry Into Force, Duration, and Termination
Paragraph 1 provides that the Treaty shall enter into force
upon written notification between the Parties, through
diplomatic channels, of compliance with their respective legal
requirements necessary for its approval. For the United States,
such requirements would include obtaining the advice and
consent of the Senate to ratification. The Venezuelan
delegation indicated that the Treaty would likewise be subject
to the approval of the Venezuelan legislature. Paragraph 1 also
provides that the Treaty shall have indefinite duration.
Paragraph 2 provides that the Treaty shall apply to any
request presented after the Treaty enters into force, even if
the relevant acts or omissions occurred prior to that date.
Provisions of this kind are common in law enforcement
agreements.
Paragraph 3 contains standard provisions concerning the
procedure for terminating the Treaty. The requirement that the
termination take effect six months after the date of
notification is not unusual in a mutual legal assistance
treaty, and similar requirements are contained in our treaties
with other countries.
This paragraph also provides that requests for assistance
that may be pending at the time of termination of the Treaty
may be executed if agreed by both Parties.
Technical Analysis of the Treaty Between the United States of America
and Saint Vincent and the Grenadines on Mutual Legal Assistance in
Criminal Matters
On January 8, 1998, the United States signed a treaty with
Saint Vincent and the Grenadines 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 expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking in
the eastern Caribbean.
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. Saint Vincent
and the Grenadines has its own mutual legal assistance laws in
place for implementing the Treaty, and does not anticipate
enacting new legislation. \1\
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\1\ ``An Act to make provision with respect to the Scheme relating
to Mutual Assistance in Criminal Matters within the Commonwealth and to
facilitate its operation in Saint Vincent and the Grenadines and to
make provision concerning mutual assistance in Criminal Matters between
Saint Vincent and the Grenadines and countries other than Commonwealth
countries,'' hereinafter ``the Mutual Assistance in Criminal Matters
Act, 1993.'' Since there are some differences between the Treaty and
law of Saint Vincent and the Grenadines, it is anticipated that Saint
Vincent and the Grenadines will issue regulations under Section 30 that
will ``direct that [the] Act shall apply in relation to [the United
States] as if it were a Commonwealth country, subject to such
limitations, conditions, exceptions or qualifications (if any) as may
be prescribed...'' in order for the terms of the Treaty to prevail.
---------------------------------------------------------------------------
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Scope of Assistance
Paragraph 1 requires the Parties to provide mutual
assistance in connection with the investigation, prosecution,
and prevention of offenses, and in proceedings relating to
criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Saint
Vincent and the Grenadines, and other legal measures taken
prior to the filing of formal charges in either State. \2\ The
term ``proceedings'' was intended to cover the full range of
proceedings in a criminal case, including such matters as bail
and sentencing hearings. \3\ It was also agreed that since the
phrase ``proceedings related to criminal matters'' is broader
than the investigation, prosecution or sentencing process
itself, proceedings covered by the Treaty need not be strictly
criminal in nature. For example, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature; \4\ yet such proceedings are covered by the
Treaty.
---------------------------------------------------------------------------
\2\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the U.S., as our investigators
and prosecutors often need to obtain evidence from foreign countries in
order to determine whether or not to file criminal charges. This
obligation is a reciprocal one; the U.S. must assist Saint Vincent and
the Grenadines under the Treaty in connection with investigations prior
to charges being filed in Saint Vincent and the Grenadines. Prior to
the 1996 amendments to Title 28, United States Code, Section 1782, some
U.S. courts had interpreted that provision to require that assistance
be provided in criminal matters only if formal charges have already
been filed abroad, or are ``imminent,'' or ``very likely.'' McCarthy,
``A Proposed Uniform Standard for U.S. Courts in Granting Requests for
International Judicial Assistance,'' 15 Fordham Int'l Law J. 772
(1991). The 1996 amendment eliminates this problem, however, by
amending subsec. (a) to state ``including criminal investigation
conducted before formal accusation.'' In any event, this Treaty was
intentionally written to cover criminal investigations that have just
begun as well as those that are nearly completed; it draws no
distinction between cases in which charges are already pending,
``imminent,'' ``very likely,'' or ``very likely very soon.'' Thus, U.S.
courts should execute requests under the Treaty without examining such
factors.
\3\ One United States court has interpreted Title 28, United States
Code, Section 1782, as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In Re Letters Rogatory Issued by the Director of Inspection of
the Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v.
Blumenthal, 620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary
obstacle to the execution of requests concerning matters which are at
the investigatory stage, or which are customarily handled by
administrative officials in the Requesting State. Since this paragraph
of the Treaty specifically permits requests to be made in connection
with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords the courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\4\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
---------------------------------------------------------------------------
Paragraph 2 lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed in the paragraph are described in detail in
subsequent articles. The list is not intended to be exhaustive,
a fact that is signaled by the word ``include'' in the opening
clause of the paragraph and reinforced by the final
subparagraph.
Many law enforcement treaties, especially in the area of
extradition, condition cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting State would also constitute
an offense had they occurred in the Requested State. Paragraph
3 of this article, however, makes it clear that there is no
general requirement of dual criminality under this Treaty for
cooperation. Thus, assistance may be provided even when the
criminal matter under investigation in the Requesting State
would not be a crime in the Requested State ``[e]xcept as
otherwise provided in this Treaty,'' a phrase which refers to
Article 3(1)(e), under which the Requested State may, in its
discretion, require dual criminality for a request under
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters). Article 1(3) is important
because United States and Saint Vincent and the Grenadines
criminal law differ significantly, and a general dual
criminality rule would make assistance unavailable in many
significant areas. This type of limited dual criminality
provision is found in other U.S. mutual legal assistance
treaties. \5\ During the negotiations, the United States
delegation received assurances that assistance would be
available under the Treaty to the United States in
investigations of such offenses as conspiracy; drug
trafficking, including continuing criminal enterprise (Title
21, United States Code, Section 848); offenses under the
racketeering statutes (Title 18, United States Code, Section
1961-1968); money laundering; crimes against environmental
protection laws; and antitrust violations.
---------------------------------------------------------------------------
\5\ See e.g., U.S.-Argentina Treaty on Mutual Legal Assistance in
Criminal Matters, Dec. 4, 1990, art. 1(3); U.S.-Philippines Treaty on
Mutual Legal Assistance in Criminal Matters, Nov. 13, 1994, art. 1(3).
---------------------------------------------------------------------------
Saint Vincent did suggest that the Treaty not permit mutual
assistance in tax cases, noting that a similar restriction is
contained in the United States' mutual legal assistance treaty
with the United Kingdom regarding the Cayman Islands. The
United States delegation was unwilling to agree that this
Treaty be so limited, because criminal tax charges are often
used to pursue and prosecute major criminals such as drug
traffickers and organized crime figures. It was agreed that
Article 1(4) should specify that ``[t]his treaty is intended
solely for mutual legal assistance in criminal matters between
the Parties as set forth in paragraph (1) above,'' thereby
emphasizing that the Treaty applies to criminal tax matters. At
the request of Saint Vincent and the Grenadines, a Protocol to
the Treaty states that Article 1 may be interpreted to exclude
assistance under the Treaty for civil and administrative income
tax matters that are unrelated to any criminal matter. The
Protocol is substantially identical to exchanges of diplomatic
notes with Antigua and Barbuda and St. Kitts and Nevis in
connection with the signature of those mutual legal assistance
treaties.
Paragraph 4 contains a standard provision in United States
mutual legal assistance treaties \6\ which states that the
Treaty is intended solely for government-to-government mutual
legal assistance. The Treaty is not intended to provide to
private persons a means of evidence gathering, or to extend
generally to civil matters. Private litigants in the United
States may continue to obtain evidence from Saint Vincent and
the Grenadines by letters rogatory, an avenue of international
assistance that the Treaty leaves undisturbed. Similarly, the
paragraph provides that the Treaty is not intended to create
any right in a private person to suppress or exclude evidence
provided pursuant to the Treaty, or to impede the execution of
a request.
---------------------------------------------------------------------------
\6\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
This article requires that each Party establish a ``Central
Authority'' for transmission, receipt, and handling of Treaty
requests. The Central Authority of the United States would make
all requests to Saint Vincent and the Grenadines on behalf of
federal agencies, state agencies, and local law enforcement
authorities in the United States. The Central Authority of
Saint Vincent and the Grenadines would make all requests
emanating from officials in Saint Vincent and the Grenadines.
The Central Authority for the Requesting State will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested State is also responsible for receiving each
request, transmitting it to the appropriate federal or state
agency, court, or other authority for execution, and ensuring
that a timely response is made.
Paragraph 2 provides that the Attorney General or a person
designated by the Attorney General will be the Central
Authority for the United States. The Attorney General has
delegated the authority to handle the duties of Central
Authority under mutual assistance treaties to the Assistant
Attorney General in charge of the Criminal Division. \7\
Article 2(2) of the Treaty also states that the Attorney
General of Saint Vincent and the Grenadines or the person
designated by the Attorney General will serve as the Central
Authority for Saint Vincent and the Grenadines. \8\
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\7\ 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. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed.
Reg. 54,595 (1983). That delegation was subsequently extended to the
Deputy Directors of the Office of International Affairs. 59 Fed. Reg.
42,160 (1994).
\8\ Section 4, Mutual Assistance in Criminal Matters Act, 1993.
---------------------------------------------------------------------------
Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax, or INTERPOL channels, or
any other means, at the option of the Central Authorities
themselves.
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph (1)(a) permits the Requested State to deny a
request if it relates to an offense under military law that
would not be an offense under ordinary criminal law. Similar
provisions appear in many other U.S. mutual legal assistance
treaties.
Paragraph (1)(b) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the security or other essential public
interests of that State. All United States mutual legal
assistance treaties contain provisions allowing the Requested
State to decline to execute a request if execution would
prejudice its essential interests.
The delegations agreed that the word ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the United States Department of Justice,
in its role as Central Authority for the United States, would
work closely with the Department of State and other government
agencies to determine whether to execute a request that might
fall in this category.
The delegations also agreed that the phrase ``essential
public interests'' was intended to narrowly limit the class of
cases in which assistance may be denied. It would not be enough
that the Requesting State's case is one that would be
inconsistent with public policy had it been brought in the
Requested State. Rather, the Requested State must be convinced
that execution of the request would seriously conflict with
significant public policy. An example might be a request
involving prosecution by the Requesting State of conduct which
occurred in the Requested State and is constitutionally
protected in that State.
However, it was agreed that ``essential public interests''
could include interests unrelated to national military or
political security, and be invoked if the execution of a
request would violate essential United States interests related
to the fundamental purposes of the Treaty. For example, one
fundamental purpose of the Treaty is to enhance law enforcement
cooperation, and attaining that purpose would be hampered if
sensitive law enforcement information available under the
Treaty were to fall into the wrong hands. Therefore, the United
States Central Authority may invoke paragraph 1(b) to decline
to provide sensitive or confidential drug related information
pursuant to a request under this Treaty whenever it determines,
after appropriate consultation with law enforcement,
intelligence, and foreign policy agencies, that a senior
foreign government official who will have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs and is using the request to the
prejudice of a U.S. investigation or prosecution. \9\
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\9\ This is consistent with the Senate resolution of advice and
consent to ratification, e.g., of the mutual legal assistance treaties
with Mexico, Canada, Belgium, Thailand, the Bahamas, and the United
Kingdom Concerning the Cayman Islands. Cong. Rec. 13884, (1989) (treaty
citations omitted). See also Staff of Senate Comm. on Foreign
Relations, 100th Cong., 2nd Sess., Mutual Legal Assistance Treaty
Concerning the Cayman Islands 67 (1988) (testimony of Mark M. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
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In general, the mere fact that the execution of a request
would involve the disclosure of records protected by bank or
business secrecy in the Requested State would not justify
invocation of the ``essential public interests'' provision.
Indeed, a major objective of the Treaty is to provide a formal,
agreed channel for making such information available for law
enforcement purposes. In the course of the negotiations, the
Saint Vincent and the Grenadines' delegation expressed its view
that in very exceptional and narrow circumstances the
disclosure of business or banking secrets could be of such
significant importance to its Government (e.g., if disclosure
would effectively destroy an entire domestic industry rather
than just a specific business entity) that it could prejudice
that State's ``essential public interests'' and entitle it to
deny assistance. \10\ The U.S. delegation did not disagree that
there might be such extraordinary circumstances, but emphasized
its view that denials of assistance on this basis by either
party should be extremely rare.
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\10\ The Saint Vincent and the Grenadines view of this provision is
thus similar to the Swiss view of Article 3(2) of the U.S.-Switzerland
Treaty. See Technical Analysis to the Treaty between the U.S. and
Switzerland on Mutual Assistance in Criminal Matters, signed May 25,
1973. U.S. Senate Exec. F, 94th Cong. 2d Sess. p. 39 (1976).
---------------------------------------------------------------------------
Paragraph (1)(c) permits the denial of a request if it is
not made in conformity with the Treaty.
Paragraph (1)(d) permits denial of a request if it involves
a political offense. \11\ It is anticipated that the Central
Authorities will employ jurisprudence similar to that used in
the extradition treaties for determining what is a ``political
offense.'' These restrictions are similar to those found in
other mutual legal assistance treaties.
---------------------------------------------------------------------------
\11\ Sections 19(2)(a) and 19(2)(b), Mutual Assistance in Criminal
Matters Act, 1993.
---------------------------------------------------------------------------
Paragraph (1)(e) permits denial of a request if there is no
``dual criminality'' with respect to requests made pursuant to
Article 14 (involving searches and seizures) or Article 16
(involving asset forfeiture matters).
Finally, Paragraph (1)(f) permits denial of the request if
execution would be contrary to the Constitution of the
Requested State. This provision was deemed necessary under the
law of Saint Vincent and the Grenadines, \12\ and is similar to
clauses in other United States mutual legal assistance
treaties. \13\
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\12\ Section 19(2)(e), Mutual Assistance in Criminal Matters Act,
1993.
\13\ U.S.-Jamaica Mutual Legal Assistance Treaty, July 7, 1989,
art. 2(1)(e); U.S.-Nigeria Mutual Legal Assistance Treaty, Sept. 13,
1989, art. III(1)(d).
---------------------------------------------------------------------------
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty, \14\ and obliges
the Requested State to consider imposing appropriate conditions
on its assistance in lieu of denying a request outright
pursuant to the first paragraph of the article. For example, a
Contracting Party might request information that could be used
either in a routine criminal case (which would be within the
scope of the Treaty) or in a politically motivated prosecution
(which would be subject to refusal). This paragraph would
permit the Requested State to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested State would notify the Requesting
State of any proposed conditions before actually delivering the
evidence in question, thereby according the Requesting State an
opportunity to indicate whether it is willing to accept the
evidence subject to the conditions. If the Requesting State
does accept the evidence subject to the conditions, it must
honor the conditions.
---------------------------------------------------------------------------
\14\ U.S.-Switzerland Mutual Legal Assistance Treaty, May 25, 1973,
art. 26, 27 U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
Paragraph 3 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and Contents of Requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``emergency situations.'' A request
in another form must be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees
otherwise.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 outlines kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified in
any particular manner.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority promptly to
execute requests. The negotiators intended that the Central
Authority, upon receiving a request, will first review the
request, then promptly notify the Central Authority of the
Requesting State if the request does not appear to comply with
the Treaty's terms. If the request does satisfy the Treaty's
requirements and the assistance sought can be provided by the
Central Authority itself, the request will be fulfilled
immediately. If the request meets the Treaty's requirements but
its execution requires action by some other entity in the
Requested State, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested State, it is
anticipated that the Central Authority will transmit most
requests to federal investigators, prosecutors, or judicial
officials for execution if the Central Authority deems it
appropriate to do so.
Paragraph 1 further authorizes and requires the federal,
state, or local agency or authority selected by the Central
Authority to do everything within its power and take whatever
action would be necessary to execute the request. This
provision is not intended or understood to authorize the use of
the grand jury in the United States for the collection of
evidence pursuant to a request from Saint Vincent and the
Grenadines. Rather, it is anticipated that when a request from
Saint Vincent and the Grenadines requires compulsory process
for execution, the United States Department of Justice would
ask a federal court to issue the necessary process under Title
28, United States Code, Section 1782, and the provisions of the
Treaty. \15\
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\15\ This paragraph of the Treaty specifically authorizes United
States courts to use all of their powers to issue subpoenas and other
process to satisfy a request under the Treaty.
---------------------------------------------------------------------------
The third sentence in Article 5(1) reads ``[t]he competent
judicial or other authorities of the Requested State shall have
power to issue subpoenas, search warrants, or other orders
necessary to execute the request.'' This language reflects an
understanding that the Parties intend to provide each other
with every available form of assistance from judicial and
executive branches of government in the execution of mutual
assistance requests. The phrase refers to ``judicial or other
authorities'' to include all those officials authorized to
issue compulsory process that might be needed in executing a
request. For example, in Saint Vincent and the Grenadines,
justices of the peace and senior police officers are empowered
to issue certain kinds of compulsory process under certain
circumstances.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for and
meet the costs of representing the Requesting State in any
proceedings in the Requested State arising out of the request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial or administrative agency,
the Central Authority of the Requested State shall arrange for
the presentation of the request to that court or agency at no
cost to the Requesting State. Since the cost of retaining
counsel abroad to present and process letters rogatory is
sometimes quite high, this provision for reciprocal legal
representation in Paragraph 2 is a significant advance in
international legal cooperation. It is also understood that
should the Requesting State choose to hire private counsel for
a particular request, it is free to do so at its own expense.
Paragraph 3 is inspired by Article 5(5) of the U.S.-
Jamaican Mutual Legal Assistance Treaty, \16\ and provides,
that ``[r]equests shall be executed according to the internal
laws and procedures of the Requested State except to the extent
that this Treaty provides otherwise.'' Thus, the method of
executing a request for assistance under the Treaty must be in
accordance with the Requested State's internal laws absent
specific contrary procedures in the Treaty itself. Neither
State is expected to take any action pursuant to a treaty
request which would be prohibited under its internal laws. For
the United States, the Treaty is intended to be self-executing;
no new or additional legislation will be needed to carry out
the obligations undertaken.
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\16\ U.S.-Jamaica Mutual Legal Assistance Treaty, supra note 13.
---------------------------------------------------------------------------
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested State. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by United States and Saint
Vincent and the Grenadines authorities in collecting evidence
in order to assure the admissibility of that evidence at trial.
For instance, United States law permits documentary evidence
taken abroad to be admitted in evidence if the evidence is duly
certified and the defendant has been given fair opportunity to
test its authenticity. \17\ The law of Saint Vincent and the
Grenadines currently contains no similar provision. Thus,
documents assembled in Saint Vincent and the Grenadines in
strict conformity with Saint Vincent and the Grenadines
procedures on evidence might not be admissible in United States
courts. Similarly, United States courts utilize procedural
techniques such as videotape depositions to enhance the
reliability of evidence taken abroad, and some of these
techniques, while not forbidden, are not used in Saint Vincent
and the Grenadines.
---------------------------------------------------------------------------
\17\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
subjection to forensic examination, and sometimes the
procedures which must be followed to enhance the scientific
accuracy of such tests do not coincide with those utilized in
assembling evidence for admission into evidence at trial. The
value of such forensic examinations could be significantly
lessened--and the Requesting State's investigation could be
retarded--if the Requested State were to insist unnecessarily
on handling the evidence in a manner usually reserved for
evidence to be presented to its own courts.
Both delegations agreed that the Treaty's primary goal of
enhancing law enforcement in the Requesting State could be
frustrated if the Requested State were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting State. For this reason,
Paragraph 3 requires the Requested State to follow the
procedure outlined in the request to the extent that it can,
even if the procedure is not that usually employed in its own
proceedings. However, if the procedure called for in the
request is unlawful in the Requested State (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested State will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested State determines that execution would interfere with
an ongoing investigation or legal proceeding in the Requested
State. The Central Authority of the Requested Party may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence that might otherwise be lost before
the conclusion of the investigation or legal proceedings in
that State. The paragraph also allows the Requested State to
provide the information sought to the Requesting State subject
to conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation,
prosecution, or proceeding'' as required by Article 4(2)(b).
Therefore, Paragraph 5 of Article 5 enables the Requesting
State to call upon the Requested State to keep the information
in the request confidential. \18\ If the Requested State cannot
execute the request without disclosing the information in
question (as might be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to so indicate, thereby giving the
Requesting State an opportunity to withdraw the request rather
than risk jeopardizing an investigation or proceeding by public
disclosure of the information.
---------------------------------------------------------------------------
\18\ This provision is similar to language in other United States
mutual legal assistance treaties. See e.g., U.S.-Mexico Mutual Legal
Assistance Treaty, Dec. 9, 1987, art. 4(5); U.S.-Canada Mutual Legal
Assistance Treaty, Mar. 18, 1985; art. 6(5), U.S.-Italy Mutual Legal
Assistance Treaty, Nov. 9, 1982, art. 8(2); US.-Philippines Mutual
Legal Assistance Treaty, supra note 5, 1994, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State concerning progress of its request. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the basis for the
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought could not be located, the
Central Authority of the Requested State would report that fact
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted
international rule that each State shall bear the expenses
incurred within its territory in executing a legal assistance
treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties. \19\
Article 6 does assume that the Requesting State will pay fees
of expert witnesses, translation, interpretation and
transcription costs, and allowances and expenses related to
travel of persons pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\19\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, supra
note 18, art. 8; U.S.-Philippines Mutual Legal Assistance Treaty, supra
note 5, art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
If such confidentiality is requested, the Requesting State must
comply with the conditions. It will be recalled that Article
4(2)(d) states that the Requesting State must specify the
purpose for which the information or evidence sought under the
Treaty is needed.
It is not anticipated that the Central Authority of the
Requested State will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that the Requested State may request
that the information or evidence it provides to the Requesting
State be kept confidential. Under most United States mutual
legal assistance treaties, conditions of confidentiality are
imposed only when necessary, and are tailored to fit the
circumstances of each particular case. For instance, the
Requested State may wish to cooperate with the investigation in
the Requesting State but choose to limit access to information
which might endanger the safety of an informant, or unduly
prejudice the interests of persons not connected in any way
with the matter being investigated in the Requesting State.
Paragraph 2 requires that if conditions of confidentiality are
imposed, the Requesting State need only make ``best efforts''
to comply with them. This ``best efforts'' language was used
because the purpose of the Treaty is the production of evidence
for use at trial, and that purpose would be frustrated if the
Requested State could routinely permit the Requesting State to
see valuable evidence, but impose confidentiality restrictions
which prevent the Requesting State from using it.
The Saint Vincent and the Grenadines delegation expressed
concern that information it might supply in response to a
request by the United States under the Treaty not be disclosed
under the Freedom of Information Act. Both delegations agreed
that since this article permits the Requested State to prohibit
the Requesting State's disclosure of information for any
purpose other than that stated in the request, a Freedom of
Information Act request that seeks information that the United
States obtained under the Treaty would have to be denied if the
United States received the information on the condition that it
be kept confidential.
If the United States Government were to receive evidence
under the Treaty that seems to be exculpatory to the defendant
in another case, the United States might be obliged to share
the evidence with the defendant in the second case. Brady v.
Maryland, 373 U.S. 83 (1963). Therefore, Paragraph 3 states
that nothing in Article 7 shall preclude the use or disclosure
of information to the extent that there is an obligation to do
so under the Constitution of the Requesting State in a criminal
prosecution. Any such proposed disclosure and the provision of
the Constitution under which such disclosure is required shall
be notified by the Requesting State to the Requested State in
advance.
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
Paragraph 1 or 2, the Requesting State is free to use the
evidence for any purpose. Once evidence obtained under the
Treaty has been revealed to the public in a trial, that
information effectively becomes part of the public domain, and
is likely to become a matter of common knowledge, perhaps even
be described in the press. The negotiators noted that once this
has occurred, it is practically impossible for the Central
Authority of the Requesting Party to block the use of that
information by third parties.
It should be noted that under Article 1(4), the
restrictions outlined in Article 7 are for the benefit of the
Contracting Parties, and the invocation and enforcement of
these provisions are left entirely to the Contracting Parties.
If a person alleges that a Saint Vincent and the Grenadines
authority seeks to use information or evidence obtained from
the United States in a manner inconsistent with this article,
the person can inform the Central Authority of the United
States of the allegations for consideration as a matter between
the Contracting Parties.
Article 8--Testimony or Evidence in the Requested State
Paragraph 1 states that a person in the Requested State
from whom testimony or evidence is sought shall be compelled,
if necessary, to appear and testify or produce items, including
documents, records, or articles of evidence. The compulsion
contemplated by this article can be accomplished by subpoena or
any other means available under the law of the Requested State.
Paragraph 2 requires that, upon request, the Requested
State shall furnish information in advance about the date and
place of the taking of testimony or evidence.
Paragraph 3 provides that any persons specified in the
request, including the defendant and his counsel in criminal
cases, shall be permitted by the Requested State to be present
and pose questions during the taking of testimony under this
article.
Paragraph 4, when read together with Article 5(3), ensures
that no person will be compelled to furnish information if he
has a right not to do so under the law of the Requested State.
Thus, a witness questioned in the United States pursuant to a
request from Saint Vincent and the Grenadines is guaranteed the
right to invoke any of the testimonial privileges (e.g.,
attorney client, interspousal) available in the United States
as well as the constitutional privilege against self-
incrimination, to the extent that it might apply in the context
of evidence being taken for foreign proceedings. \20\ A witness
testifying in Saint Vincent and the Grenadines may raise any of
the similar privileges available under the law of Saint Vincent
and the Grenadines.
---------------------------------------------------------------------------
\20\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 4 does require that if a witness attempts to
assert a privilege that is unique to the Requesting State, the
Requested State will take the desired evidence and turn it over
to the Requesting State along with notice that it was obtained
over a claim of privilege. The applicability of the privilege
can then be determined in the Requesting State, where the scope
of the privilege and the legislative and policy reasons
underlying the privilege are best understood. A similar
provision appears in many of our recent mutual legal assistance
treaties. \21\
---------------------------------------------------------------------------
\21\ See e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), TIAS No. 10734, 1359 UNTS 209; U.S.-Bahamas
Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art. 9(2);
U.S.-Mexico Mutual Legal Assistance Treaty, Supra note 18, art. 7(2);
U.S.- Philippines Mutual Legal Assistance Treaty, supra note 5, art.
8(4).
---------------------------------------------------------------------------
Paragraph 5 states that evidence produced pursuant to this
article may be authenticated by an attestation, including, in
the case of business records, authentication in the manner
indicated in Form A appended to the Treaty. Thus, the provision
establishes a procedure for authenticating records in a manner
essentially similar to Title 18, United States Code, Section
3505. It is understood that this paragraph provides for the
admissibility of authenticated documents as evidence without
additional foundation or authentication. With respect to the
United States, this paragraph is self-executing, and does not
need implementing legislation.
Article 8(5) provides that the evidence authenticated by
Form A is ``admissible,'' but of course, it will be up to the
judicial authority presiding over the trial to determine
whether the evidence should in fact be admitted. The
negotiators intended that evidentiary tests other than
authentication (such as relevance, and materiality) would still
have to be satisfied in each case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a government department
or agency in the Requested State. The term ``government
departments and agencies'' includes all executive, judicial,
and legislative units of the Federal, State, and local level in
each country.
Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information in
government files. The obligation under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, the article states that the Requested State may
only exercise its discretion to turn over information in its
files ``to the same extent and under the same conditions'' as
it would to its own law enforcement or judicial authorities. It
is intended that the Central Authority of the Requested State,
in close consultation with the interested law enforcement
authorities of that State, will determine that extent and what
those conditions would be.
The discretionary nature of this provision was deemed
necessary because government files in each State contain some
kinds of information that would be available to investigative
authorities in that State, but that justifiably would be deemed
inappropriate to release to a foreign government. For example,
assistance might be deemed inappropriate where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
State's law bars disclosure of the information.
The delegations discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the United States delegation that the United
States be able to provide assistance under the Treaty for tax
offenses, as well as to provide information in the custody of
the Internal Revenue Service for both tax offenses and non-tax
offenses under circumstances that such information is available
to U.S. law enforcement authorities. The United States
delegation was satisfied after discussion that this Treaty is a
``convention relating to the exchange of tax information'' for
purposes of Title 26, United States Code, Section 6103(k)(4),
and the United States would have the discretion to provide tax
return information to Saint Vincent and the Grenadines under
this article in appropriate cases. \22\
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\22\ Thus, this treaty, like all of the other U.S. bilateral mutual
legal assistance treaties, authorizes the Contracting Parties to
provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Paragraph 3 states that documents provided under this
article may be authenticated in accordance with the procedures
specified in the request, and if authenticated in this manner,
the evidence shall be admissible in evidence in the Requesting
State. Thus, the Treaty establishes a procedure for
authenticating official foreign documents that is consistent
with Rule 902(3) of the Federal Rules of Evidence and Rule 44,
Federal Rules of Civil Procedure.
Paragraph 3, similar to Article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' but
it will, of course, be up to the judicial authority presiding
over the trial to determine whether the evidence should in fact
be admitted. The evidentiary tests other than authentication
(such as relevance or materiality) must be established in each
case.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons who are located in its territory to
travel to the Requesting State to appear before an appropriate
authority there. It shall notify the Requesting State of the
invitee's response. An appearance in the Requesting State under
this article is not mandatory, and the invitation may be
refused by the prospective witness. The Requesting State would
be expected to pay the expenses of such an appearance pursuant
to Article 6 if requested by the person whose appearance is
sought.
Paragraph l provides that the person shall be informed of
the amount and kind of expenses which the Requesting State will
provide in a particular case. It is assumed that such expenses
would normally include the costs of transportation, and room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided.
Paragraph 2 provides that the Central Authority of the
Requesting State shall inform the Central Authority of the
Requested State whether any decision has been made that a
person who is in the Requesting State pursuant to this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty while he is in
the Requesting State. Most U.S. mutual legal assistance
treaties anticipate that the Central Authority will determine
whether to extend such safe conduct, but under the Treaty with
Saint Vincent and the Grenadines, the Central Authority merely
reports whether safe conduct has been extended. This is because
in Saint Vincent and the Grenadines only the Director of Public
Prosecutions can extend such safe conduct, and the Attorney
General (who is Central Authority for Saint Vincent and the
Grenadines under Article 3 of the Treaty) cannot do so. This
``safe conduct'' is limited to acts or convictions that
preceded the witness's departure from the Requested State. It
is understood that this provision would not prevent the
prosecution of a person for perjury or any other crime
committed while in the Requesting State.
Paragraph 3 states that the safe conduct guaranteed in this
article expires seven days after the Central Authority of the
Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer
required, or if the person leaves the territory of the
Requesting State and thereafter returns to it. However, the
competent authorities of the Requesting State may extend the
safe conduct up to fifteen days if they determine that there is
good cause to do so. For the United States, the ``competent
authorities'' for these purposes would be the Central
Authority.
Article 11--Transfer of Persons in Custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, foreign countries are willing and able to ``lend''
witnesses to the United States Government, provided the
witnesses would be carefully guarded while in the United States
and returned to the foreign country at the conclusion of the
testimony. On occasion, the United States Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings. \23\
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\23\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the United
States-Switzerland Mutual Legal Assistance Treaty, \24\ which
in turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters. \25\
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\24\ U.S.-Switzerland Mutual Legal Assistance Treaty, supra note
14, art. 26.
\25\ See also Title 18, United States Code, Section 3508, which
provides for the transfer to the United States of witnesses in custody
in other States whose testimony is needed at a federal criminal trial.
It is also consistent with Section 24, Mutual Assistance in Criminal
Matters Act, 1993.
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Paragraph 2 provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State
for that purpose if the person consents and if the Central
Authorities of both States agree. This would also cover
situations in which a person in custody in the United States on
a criminal matter has sought permission to travel to another
country to be present at a deposition being taken there in
connection with the case. \26\
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\26\ See also United States v. King, 552 F.2d 833 (9th Cir. 1976),
cert. denied, 430 U.S. 966 (1977), where the defendants insisted on
traveling to Japan to be present at the deposition of certain witnesses
in prison there.
---------------------------------------------------------------------------
Paragraph 3 provides express authority for the receiving
State to maintain such a person in custody throughout the
person's stay there, unless the sending State specifically
authorizes release. This paragraph also authorizes the
receiving State to return the person in custody to the sending
State, and provides that this return will occur in accordance
with terms and conditions agreed upon by the Central
Authorities. The initial transfer of a prisoner under this
article requires the consent of the person involved and of both
Central Authorities, but the provision does not require that
the person consent to be returned to the sending State.
Once the receiving State has agreed to assist the sending
State's investigation or proceeding pursuant to this article,
it would be inappropriate for the receiving State to hold the
person transferred and require extradition proceedings before
allowing him to return to the sending State as agreed.
Therefore, Paragraph (3)(c) contemplates that extradition
proceedings will not be required before the status quo is
restored by the return of the person transferred. Paragraph
(3)(d) states that the person is to receive credit for time
served while in the custody of the receiving State. This is
consistent with United States practice in these matters.
Article 11 does not provide for any specific ``safe
conduct'' for persons transferred under this article, because
it is anticipated that the authorities of the two countries
will deal with such situations on a case-by-case basis. If the
person in custody is unwilling to be transferred without safe
conduct, and the Receiving State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 12--Location or Identification of Persons or Items
This article provides for ascertaining the whereabouts in
the Requested State of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting State seeks
such information. This is a standard provision contained in all
United States mutual legal assistance treaties. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the persons or items sought by the Requesting State.
\27\ The extent of such efforts will vary, of course, depending
on the quality and extent of the information provided by the
Requesting State concerning the suspected location and last
known location.
---------------------------------------------------------------------------
\27\ This is consistent with Section 21, Mutual Assistance in
Criminal Matters Act, 1993.
---------------------------------------------------------------------------
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested State. Thus, the United States would not be obliged
to attempt to locate persons or items which may be in third
countries. In all cases, the Requesting State would be expected
to supply all available information about the last known
location of the persons or items sought.
Article 13--Service of Documents
This article creates an obligation on the Requested State
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers
relating in whole or in part to a Treaty request. This is
consistent with the law of Saint Vincent and the Grenadines,
\28\ and identical provisions appear in several U.S. mutual
legal assistance treaties.
---------------------------------------------------------------------------
\28\ Section 25, Mutual Assistance in Criminal Matters Act, 1993.
---------------------------------------------------------------------------
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Saint Vincent and the
Grenadines to follow a specified procedure for service) or by
the United States Marshal's Service in instances in which
personal service is requested.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents should be received by the Central Authority of
the Requested State a reasonable time before the date set for
any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting State in the manner specified in the request.
Article 14--Search and Seizure
It is sometimes in the interests of justice for one State
to ask another to search for, secure, and deliver articles or
objects needed in the former as evidence or for other purposes.
United States courts can and do execute such requests under
Title 28, United States Code, Section 1782. \29\ This article
creates a formal framework for handling such requests.
---------------------------------------------------------------------------
\29\ See e.g., United States Ex Rel Public Prosecutor of Rotterdam,
Netherlands v. Richard Jean Van Aalst, Case No 84-52-M-01 (M.D. Fla.,
Orlando Div.) (search warrant issued February 24, 1984). Saint Vincent
and the Grenadines' courts, too, have the power to execute such
requests under Section 22, Mutual Assistance in Criminal Matters Act,
1993.
---------------------------------------------------------------------------
Article 14 requires that the search and seizure request
include ``information justifying such action under the laws of
the Requested State.'' This means that normally a request to
the United States from Saint Vincent and the Grenadines will
have to be supported by a showing of probable cause for the
search. A United States request to Saint Vincent and the
Grenadines would have to satisfy the corresponding evidentiary
standard there, which is ``a reasonable basis to believe'' that
the specified premises contains articles likely to be evidence
of the commission of an offense.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision effectively requires that, upon request, every
official who has custody of a seized item shall certify,
through the use of Form C appended to this Treaty, the
continuity of custody, the identity of the item, and the
integrity of its condition.
The article also provides that the certificates describing
continuity of custody will be admissible without additional
authentication at trial in the Requesting State, thus relieving
the Requesting State of the burden, expense, and inconvenience
of having to send its law enforcement officers to the Requested
State to provided authentication and chain of custody testimony
each time the Requesting State uses evidence produced under
this article. As in Articles 8(5) and 9(3), the injunction that
the certificates be admissible without additional
authentication leaves the trier of fact free to bar use of the
evidence itself, in spite of the certificate, if there is some
reason to do so other than authenticity or chain of custody.
Paragraph 3 states that the Requested State may require that
the Requesting State agree to terms and conditions necessary to
protect the interests of third parties in the item to be
transferred. This article is similar to provisions in many
other United States mutual legal assistance treaties. \30\
---------------------------------------------------------------------------
\30\ See e.g., U.S.-Argentina Mutual Legal Assistance Treaty, supra
note 5; U.S.-Bahamas Mutual Legal Assistance Treaty, supra note 21;
U.S.-Canada Mutual Legal Assistance Treaty, supra note 18; U.S.-U.K.
Mutual Legal Assistance Treaty Concerning the Cayman Islands, Jul. 3,
1986; U.S.- Hungary Mutual Legal Assistance Treaty, Dec. 1, 1994; U.S.-
Korea Mutual Legal Assistance Treaty, Nov. 23, 1993; U.S.-Panama Mutual
Legal Assistance Treaty, Apr. 11, 1991; U.S.-Philippines Mutual Legal
Assistance Treaty, supra note 5; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990; U.S.-United Kingdom Mutual Legal Assistance
Treaty, Jan. 6, 1994.
---------------------------------------------------------------------------
Article 15--Return of Items
This article provides that any documents or items of
evidence furnished under the Treaty must be returned to the
Requested State as soon as possible. The delegations understood
that this requirement would be invoked only if the Central
Authority of the Requested State specifically requests it at
the time that the items are delivered to the Requesting State.
It is anticipated that unless original records or articles of
significant intrinsic value are involved, the Requested State
will not usually request return of the items, but this is a
matter best left to development in practice.
Article 16--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and Saint Vincent and the Grenadines in
combating narcotics trafficking. One significant strategy in
this effort is action by United States authorities to seize and
confiscate money, property, and other proceeds of drug
trafficking.
This article is similar to a number of United States mutual
legal assistance treaties, including Article 17 in the U.S.-
Canada Mutual Legal Assistance Treaty and Article 15 of the
U.S.-Thailand Mutual Legal Assistance Treaty. Paragraph 1
authorizes the Central Authority of one State to notify the
other of the existence in the latter's territory of proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure. The term ``proceeds or
instrumentalities'' was intended to include things such as
money, vessels, or other valuables either used in the crime or
purchased or obtained as a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the State in which the proceeds or
instrumentalities are located may take whatever action is
appropriate under its law. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Saint Vincent and the Grenadines, they
could be seized under 18 U.S.C. 981 in aid of a prosecution
under Title 18, United States Code, Section 2314, \31\ or be
subject to a temporary restraining order in anticipation of a
civil action for the return of the assets to the lawful owner.
Proceeds of a foreign kidnapping, robbery, extortion or a fraud
by or against a foreign bank are civilly and criminally
forfeitable in the U.S. since these offenses are predicate
offenses under U.S. money laundering laws. \32\ Thus, it is a
violation of United States criminal law to launder the proceeds
of these foreign fraud or theft offenses, when such proceeds
are brought into the United States.
---------------------------------------------------------------------------
\31\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad.
\32\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
If the assets are the proceeds of drug trafficking, it is
especially likely that the Contracting Parties will be able and
willing to help one another. Title 18, United States Code,
Section 981(a)(1)(B), allows for the forfeiture to the United
States of property ``which represents the proceeds of an
offense against a foreign nation involving the manufacture,
importation, sale, or distribution of a controlled substance
(as such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense or
activity would be punishable by death or imprisonment for a
term exceeding one year if such act or activity had occurred
within the jurisdiction of the United States.'' This is
consistent with the laws in other countries, such as
Switzerland and Canada; there is a growing trend among nations
toward enacting legislation of this kind in the battle against
narcotics trafficking. \33\ The United States delegation
expects that Article 16 of the Treaty will enable this
legislation to be even more effective.
---------------------------------------------------------------------------
\33\ Article 5 of the United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the
States that are party to enact legislation to forfeit illicit drug
proceeds and to assist one another in such matters. United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, with annex and final act, done at Vienna, Dec. 20, 1988.
---------------------------------------------------------------------------
Paragraph 2 states that the Parties shall assist one
another to the extent permitted by their laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of offenses, to restitution to crime victims, or to the
collection of fines imposed as sentences in criminal
convictions. It specifically recognizes that the authorities in
the Requested State may take immediate action to temporarily
immobilize the assets pending further proceedings. Thus, 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
of forfeiture levied in the Requesting State, the Treaty
provides that the Requested State shall do so. The language of
the article is carefully selected, however, so as not to
require either State to take any action that would exceed its
internal legal authority. It does not mandate institution of
forfeiture proceedings or initiation of temporary
immobilization in either country against property identified by
the other if the relevant prosecution authorities do not deem
it proper to do so. \34\
---------------------------------------------------------------------------
\34\ In Saint Vincent and the Grenadines, unlike the U.S., the law
does not currently allow for civil forfeiture. However, Saint Vincent
and the Grenadines law does permit forfeiture in criminal cases, and
ordinarily a defendant must be convicted in order for Saint Vincent and
the Grenadines to confiscate the defendant's property.
---------------------------------------------------------------------------
United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country, and be approved by the Secretary of State.
\35\ Paragraph 3 is consistent with this framework, and will
enable a Contracting Party having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or
the proceeds of the sale of such assets, to the other
Contracting Party, at the former's discretion and to the extent
permitted by their respective laws.
---------------------------------------------------------------------------
\35\ See Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
Article 17--Compatibility with Other Arrangements
This article states that assistance and procedures provided
by this Treaty shall not prevent assistance under any other
applicable international agreements. Article 17 also provides
that the Treaty shall not be deemed to prevent recourse to any
assistance available under the internal laws of either country.
Thus, the Treaty would leave the provisions of United States
and Saint Vincent and the Grenadines law on letters rogatory
completely undisturbed, and would not alter any pre-existing
agreements concerning investigative assistance.
Article 18--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, and encourages them to agree on the implementation of
such measures. Practical measures of this kind might include
methods of keeping each other informed of the progress of
investigations and cases in which treaty assistance was
utilized, or the use of the Treaty to obtain evidence that
otherwise might be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties. \36\ It
is anticipated that the Central Authorities will conduct annual
consultations pursuant to this article.
---------------------------------------------------------------------------
\36\ See, e.g., U.S.-Philippines Mutual Legal Assistance Treaty,
supra note 5, art. 18; U.S.-Canada Mutual Legal Assistance Treaty,
supra note 18, art. XVIII; U.S.-U.K. Mutual Legal Assistance Treaty
Concerning the Cayman Islands, supra note 30, art. 18; U.S.-Argentina
Mutual Legal Assistance Treaty, supra note 5, art. 18.
---------------------------------------------------------------------------
Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 contains standard provisions on the procedure
for ratification and the exchange of the instruments of
ratification
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 provides that the Treaty shall apply to any
request presented pursuant to it after it enters into force,
even if the relevant acts or omissions occurred before the date
on which the Treaty entered into force. Provisions of this kind
are common in law enforcement agreements.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of written notification.
Similar termination provisions are included in other United
States mutual legal assistance treaties.
VIII. Texts of the Resolutions of Ratification
Agreement with Hong Kong:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Agreement between the Government of the
United States of America and the Government of Hong Kong on
Mutual Legal Assistance in Criminal Matters, with Annex, signed
in Hong Kong on April 15, 1997 (Treaty Doc. 105-6), subject to
the understanding of subsection (a), the declaration of
subsection (b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Luxembourg:
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 Grand Duchy of
Luxembourg on Mutual Legal Assistance in Criminal Matters, and
related exchange of notes, signed at Washington on March 13,
1997 (Treaty Doc. 105-11), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Poland:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Treaty Between the United States of America
and the Government of the Republic of Poland on Mutual Legal
Assistance in Criminal Matters, signed at Washington on July
10, 1996 (Treaty Doc. 105-12), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Trinidad and Tobago:
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 Trinidad and Tobago on
Mutual Legal Assistance in Criminal Matters, signed at Port of
Spain on March 4, 1996 (Treaty Doc. 105-22), subject to the
understanding of subsection (a), the declaration of subsection
(b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Barbados:
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 Barbados on Mutual
Legal Assistance in Criminal Matters, signed at Bridgetown on
February 28, 1996 (Treaty Doc. 105-23), subject to the
understanding of subsection (a), the declaration of subsection
(b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Antigua and Barbuda:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Treaty on Mutual Legal Assistance in
Criminal Matters Between the Government of the United States of
America and the Government of Antigua and Barbuda, signed at
St. John's on October 31, 1996 (Treaty Doc. 105-24), subject to
the understanding of subsection (a), the declaration of
subsection (b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Dominica:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Treaty on Mutual Legal Assistance in
Criminal Matters Between the Government of the United States of
America and the Government of Dominica, signed at Roseau on
October 10, 1996 (Treaty Doc. 105-24), subject to the
understanding of subsection (a), the declaration of subsection
(b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Grenada:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Treaty on Mutual Legal Assistance in
Criminal Matters Between the Government of the United States of
America and the Government of Grenada, signed at St. George's
on May 30, 1996 (Treaty Doc. 105-24), subject to the
understanding of subsection (a), the declaration of subsection
(b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Saint Lucia:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Treaty on Mutual Legal Assistance in
Criminal Matters Between the Government of the United States of
America and the Government of Saint Lucia, signed at Castries
on April 18, 1996 (Treaty Doc. 105-24), subject to the
understanding of subsection (a), the declaration of subsection
(b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Australia:
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 Australia on Mutual
Assistance in Criminal Matters, and a related exchange of
notes, signed at Washington on April 30, 1997 (Treaty Doc. 105-
27), subject to the understanding of subsection (a), the
declaration of subsection (b), and the provisos of subsection
(c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Latvia:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Treaty Between the United States of America
and the Republic of Latvia on Mutual Legal Assistance in
Criminal Matters, signed at Washington on June 13, 1997 and an
exchange of notes signed the same date (Treaty Doc. 105-34),
subject to the understanding of subsection (a), the declaration
of subsection (b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Saint Kitts and Nevis:
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 Saint Kitts and Nevis
on Mutual Legal Assistance in Criminal Matters, signed at
Basseterre on September 18, 1997, and a related exchange of
notes signed at Bridgetown on October 29, 1997, and February 4,
1998 (Treaty Doc. 105-37), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Venezuela:
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
Venezuela on Mutual Legal Assistance in Criminal Matters,
signed at Caracas on October 12, 1997 (Treaty Doc. 105-38),
subject to the understanding of subsection (a), the declaration
of subsection (b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Israel:
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 State of Israel on
Mutual Legal Assistance in Criminal Matters, signed at Tel Aviv
on January 26, 1998, and a related exchange of notes signed the
same date (Treaty Doc. 105-40), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Lithuania:
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
Lithuania on Mutual Legal Assistance in Criminal Matters,
signed at Washington on January 16, 1998 (Treaty Doc. 105-41),
subject to the understanding of subsection (a), the declaration
of subsection (b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Brazil:
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 Federative Republic
of Brazil on Mutual Legal Assistance in Criminal Matters,
signed at Brasilia on October 14, 1997 (Treaty Doc. 105-42),
subject to the understanding of subsection (a), the declaration
of subsection (b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Saint Vincent and the Grenadines:
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 Saint Vincent and the
Grenadines on Mutual Legal Assistance in Criminal Matters, and
a Related Protocol, signed at Kingstown on January 8, 1998
(Treaty Doc. 105-44), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with the Czech Republic:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Treaty Between the United States of America
and the Czech Republic on Mutual Legal Assistance in Criminal
Matters, signed at Washington on February 4, 1998 (Treaty Doc.
105-47), subject to the understanding of subsection (a), the
declaration of subsection (b), and the provisos of subsection
(c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution. (b) DECLARATION.--The Senate's advice and
consent is subject to the following declaration, which
shall be binding on the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Estonia:
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 Estonia
on Mutual Legal Assistance in Criminal Matters, signed at
Washington on April 2, 1998 (Treaty Doc. 105-52), and an
exchange of notes dated September 16 and 17, 1998 (EC-7063),
subject to the understanding of subsection (a), the declaration
of subsection (b), and the provisos of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL
CRIMINAL COURT.--The United States shall exercise its
rights to limit the use of assistance it provides under
the Treaty so that any assistance provided by the
Government of the United States shall not be
transferred to or otherwise used to assist the
International Criminal Court agreed to in Rome, Italy,
on July 17, 1998, unless the treaty establishing the
court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISOS.--The resolution of ratification is subject to
the following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
(1) LIMITATION ON ASSISTANCE. 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.
(2) SUPREMACY OF THE CONSTITUTION.--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.