[Senate Executive Report 106-24]
[From the U.S. Government Publishing Office]
106th Congress Exec. Rept.
SENATE
2d Session 106-24
======================================================================
MUTUAL LEGAL ASSISTANCE TREATIES WITH CYPRUS, EGYPT, FRANCE, GREECE,
NIGERIA, ROMANIA, SOUTH AFRICA, UKRAINE AND THE INTER-AMERICAN
CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS WITH RELATED
PROTOCOL
_______
October 4 (legislative day, September 22), 2000.--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. 106-35; 106-19; 106-17; 106-18; 102-26; 106-
20; 106-36; 106-16; and 105-25]
The Committee on Foreign Relations, to which were referred
the Treaty Between the Government of the United States of
America and the Government of the Republic of Cyprus on Mutual
Legal Assistance in Criminal Matters, signed at Nicosia on
December 20, 1999 (Treaty Doc. 106-35); the Treaty Between the
Government of the United States of America and the Government
of the Arab Republic of Egypt on Mutual Legal Assistance in
Criminal Matters, signed at Cairo on May 3, 1998, and a related
Exchange of Diplomatic Notes (Treaty Doc. 106-19); the Treaty
Between the Government of the United States of America and the
Government of France on Mutual Legal Assistance in Criminal
Matters, signed at Paris on December 10, 1998 (Treaty Doc. 106-
17); the Treaty Between the Government of the United States of
America and the Government of the Hellenic Republic on Mutual
Legal Assistance in Criminal Matters, signed at Washington on
May 25, 1999 (Treaty Doc. 106-18); the Treaty Between the
Government of the United States of America and the Federal
Republic of Nigeria on Mutual Legal Assistance in Criminal
Matters, signed at Washington on September 13, 1989 (Treaty
Doc. 102-26); the Treaty Between the Government of the United
States of America and the Government of Romania on Mutual Legal
Assistance in Criminal Matters, signed at Washington on May 26,
1999 (Treaty Doc. 106-20); the Treaty Between the Government of
the United States of America and the Government of the Republic
of South Africa on Mutual Legal Assistance in Criminal Matters,
signed at Washington on September 16, 1999 (Treaty Doc. 106-
36); the Treaty Between the Government of the United States of
America and Ukraine on Mutual Legal Assistance in Criminal
Matters, signed at Kiev on July 22, 1998, and with an Exchange
of Notes signed on September 30, 1999, which provides for its
provisional application (Treaty Doc. 106-16); and the Inter-
American Convention on Mutual Assistance in Criminal Matters,
adopted at the Twenty-Second Regular Session of the
Organization of American States (``OAS'') General Assembly
meeting in Nassau, The Bahamas, on May 23, 1992, and the
Optional Protocol Related to the Inter-American Convention on
Mutual Assistance in Criminal Matters, adopted at the Twenty-
Third Regular Session of the OAS General Assembly meeting in
Managua, Nicaragua, on June 11, 1993, both instruments signed
on behalf of the United States at OAS Headquarters in
Washington on January 10, 1995 (Treaty Doc. 105-25), having
considered the same, reports favorably thereon, each with the
understandings, declarations and provisos indicated in the
corresponding resolutions of ratification, infra, and
recommends that the Senate give its advice and consent to the
ratification thereof as set forth in this report and said
resolutions of ratification.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Summary..........................................................2
IV. Entry Into Force and Termination.................................9
V. Committee Action................................................10
VI. Committee Recommendation and Comments...........................10
VII. Explanation of Proposed Treaties................................12
VIII.Text of the Resolutions of Ratification........................181
I. Purpose
Bilateral and multilateral mutual legal assistance treaties
are intended to establish a formal basis for cooperative law
enforcement efforts.
II. Background
Eight mutual legal assistance treaties (``MLATs'') were
submitted to the Senate during the 106th Congress. They include
agreements with Cyprus, Egypt, France, Greece, Romania, South
Africa, and Ukraine. The Inter-American Convention on Mutual
Assistance in Criminal Matters and its Optional Protocol were
submitted to the Senate during the 105th Congress. The MLAT
with Nigeria was submitted to the Senate during the 102d
Congress. If the agreements described in this report enter into
force, they will join thirty-six existing MLATs already in
force for the United States.
III. Summary
A. GENERAL
Each of the treaties discussed in this report has
distinctive features. All of them, however, including the
multilateral Inter-American Convention (``OAS MLAT''), follow a
common format and as a group exhibit more similarities than
differences. In general, they consist of twenty articles, more
or less. They cover essentially the same matter, in the same
general order, often with only minor variations of style and
language. Typically their texts are arranged as follows:
the scope of assistance of the Treaty, in the form
of 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 petition for
help 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 to 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.
Parties to the Optional Protocol to the OAS MLAT would
agree not to reject certain requests for assistance relating to
tax crimes. The Optional Protocol was negotiated at the request
of the United States out of concern that the OAS MLAT itself
allowed assistance to be denied in certain cases in which the
underlying offense was considered a ``fiscal'' offense. The
Executive Branch also desires ratification of the Optional
Protocol to improve cooperation in a wide range of tax
offenses.
B. KEY PROVISIONS
1. Scope of Assistance
In general, the MLATs begin with an article that addresses
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 the types of assistance
available under the agreement, a statement on dual criminality
and a disclaimer of any intent to give defendants additional
rights.
2. Central Authorities
The Treaties all require the designation of a Central
Authority that is vested with exclusive authority to send and
receive treaty requests, and that often has broad
administrative authority to make the treaties work. In most
cases, the Central Authority is the country's attorney general.
For the United States, actual treaty administration is
delegated to the Department of Justice's Office of
International Affairs which provides sufficiency review and
traffic control over requests under the treaty. Central
Authorities enjoy considerable authority and flexibility over
dispatch and receipt of Treaty requests in order to ensure
efficient implementation of the treaty.
The MLAT with Egypt is typical and permits the Central
Authorities to set or agree to any conditions necessary for
approval of requests that might otherwise be denied; to waive
the requirement, in emergency situations, that requests be
submitted in writing; to postpone or condition execution of a
request for assistance that might interfere with a criminal
investigation, prosecution or proceeding of its own; and to
determine whether requests should be kept confidential and
whether the information secured may be used for other purposes.
3. Limitations on Assistance
All of the Treaties have an article that describes the
circumstances under which assistance may or must be refused.
They help define the MLATs' outer limits, but seldom surface in
practice. The four most recurrent limitations permit the
parties to decline a request for assistance (1) which involves
a purely military offense not ordinarily treated as a criminal
offense, (2) which is related to a political offense, (3) whose
execution would prejudice a national security or similar
essential interest, or (4) which does not comply with the
MLATs' procedural prerequisites.
The provision on purely military offenses and political
offenses is drawn from extradition practice. The purely
military offense exception covers things like mutiny and
desertion, is fairly self-evident, and rarely claimed. In an
extradition context, the political offense exception, on the
other hand, is neither so evident nor so rare. It clearly
includes purely political crimes like treason, espionage, and
sedition. Under U.S. law it also extends to crimes that are
relatively political, that is, offenses ``committed in the
course of and incidental to a violent political disturbance
such as a war, revolution or rebellion.'' Under the laws of
various other nations it has sometimes been thought to
encompasses either politically motivated offenses or offenses
whose prosecution is politically motivated or both.
Although the essential interests clause is almost always
couched with national security, it is generally understood to
be more inclusive than the language alone might suggest. The
most commonly cited examples are (1) requests ``involving
prosecution by the Requesting State of conduct that occurred in
the Requested State that is constitutionally protected in the
Requested State'' and (2) requests for sensitive law
enforcement information where the ``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.''
MLATs not infrequently join other restriction clauses with
one or more of the usual four limitation clauses. Requests
involving a prosecution based on race, religion, nationality,
or political opinion may be singled out for possible rejection.
Search and seizure and forfeiture assistance may be limited if
dual criminality requirements are not met. Double jeopardy or
the prospect of a constitutional violation may also be
explicitly mentioned as a ground for denying a MLAT request.
Among the pacts under consideration, the denial clause of
the French MLAT is the most abbreviated, and the denial clause
of the OAS MLAT is the most expansive. The Optional Protocol to
the OAS MLAT was negotiated at the request of the United States
out of concern that the OAS MLAT itself allowed assistance to
be denied in certain cases in which the underlying offense was
considered a ``fiscal'' offense. The Executive Branch believes
ratification of the Optional Protocol will improve cooperation
with OAS MLAT parties over a wide range of tax offenses.
4. Form and Content of Requests
The form and content demands of most MLATs have been
formulated to streamline the request process, to prevent
denials based on misunderstandings, and to keep requests within
the confines of the Treaty. Under normal circumstances,
requests must be written in the language of the requested
country. Certain basic information must be provided for all
requests and other information requirements are tailored to
requests for particular kinds of assistance. Search and seizure
requests, for instances, are expected to include a
particularized description of the place to be searched and the
items to be seized. The provision in the Treaty with Cyprus is
representative in both type and content.
5. Execution of Requests
Contemporary MLATs generally merge several provisions
concerning treaty administration using similar if not identical
language for matters such as:
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 requesters to be informed of the
status of performance on their requests; and
the rights of requesters to be informed of the
outcome of the execution of their requests.
6. Costs
The Treaties handle associated costs primarily as incidents
of 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. The
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
Most MLATs 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 provision is sometimes worded as a prohibition
(``the Requesting State shall not * * *'') and sometimes as a
prerogative (``the Requested State may require * * *''). In
either case, it is designed to ensure that information will not
be used for purposes for which it could not have been obtained
directly under the MLAT. Consequently, its invocation can be
anticipated, is apparently relatively uncommon, and can be
tailored to minimal adverse effect. In this country, the
limitation places the MLAT information and evidence initially
beyond the reach of a Freedom of Information Act request.
The same article normally includes confidentiality
limitations in addition to use limitations. They permit
responding countries to insist that the evidence or information
they provide be kept confidential and to condition their
responses accordingly. News of the results of a MLAT request
may be just as damaging as word of the fact a request has been
made. Premature disclosure could result in flight; destruction
of evidence; concealment of assets; harm, intimidation,
corruption, or obstruction of witnesses or officials; and
embarrassment of the innocent. The cloak tends to be fairly
tightly drawn.
8. Testimony and Evidence in the Requested State
An original purpose of the MLAT program was to permit the
United States to obtain evidence from foreign jurisdictions in
a form admissible in American courts. That remains unchanged.
There are alternative procedures for any type of assistance
that a MLAT enables, but the Treaties make it possible to
overcome real and practical problems.
American courts usually have no authority to subpoena
foreign nationals living abroad. Although Americans living
overseas can be subpoenaed, to do so in many countries is
considered both diplomatically and legally offensive. Even when
foreign resistance can be overcome, U.S. law imposes formidable
requirements that must be met before depositions can be taken
overseas and the testimony subsequently introduced in criminal
proceedings in this country.
MLATs are crafted to overcome these obstacles, in addition
to meeting the practical and diplomatic challenges of taking
depositions in a foreign country. They obligate the parties to
call witnesses, using compulsory process if necessary.
9. Records of Government Agencies
The majority of MLATs divide governmental information
available under their provisions into two categories, namely,
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 Treaties contemplate access to
material held by any of the three branches of government. The
United States is unwilling to compromise drug trafficking
intelligence produced and held by our various law enforcement
agencies. Thus, as in some past MLATs, the Senate has insisted
upon a resolution of ratification proviso instructing the
Administration to deny any MLAT request that would give corrupt
foreign officials information that might be used to frustrate
our efforts to combat drug trafficking.
The Technical Analyses accompanying in many of these
Treaties have noted that the provision permits access by both
the law enforcement and tax enforcement authorities of our MLAT
Treaty partners to tax information held by the Internal Revenue
Service to the same extent that access is available to federal
officials.
10. Appearances Outside the Requested State
Foreign witnesses can not be compelled to travel to the
United States to testify nor can a witness in this country be
compelled to travel overseas to testify, 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 whether
witnesses may request reimbursement in advance, whether
witnesses may be invited to appear in third countries, and the
extent to which safe conduct will be offered. The advance
reimbursement stipulations, where they appear, are cast in
discretionary terms and likely reflect general practice.
Guarantees of safe conduct assure invited witnesses that,
during their visit, the host country will not arrest, charge,
or sue them for any past conduct.
11. Transfer of Persons in Custody
The Treaties anticipate situations where prisoners are
sought as participants in proceedings in another country. 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 its laws
to accept custody on its 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.
12. Location and Identification of Persons or Items
The MLAT parties generally pledge their best efforts to
ascertain the location or identity of ``persons or items''
within their territory 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.
13. Service of Documents
In American criminal cases, service of documents consists
most often of the service of subpoenas. Foreign nationals
living abroad are ordinarily beyond the reach of American
courts, but Congress has long authorized federal courts to
subpoena Americans residing overseas. The existing statute, 28
U.S.C. 1783, permits subpoenas ordering an American to return
to this country to testify as well as subpoenas ordering an
appearance in the country where the American witness resides.
For purposes of American law, section 1783 requires no Treaty
reenforcement to be effective. In some countries, however, its
use may be offensive to notions of sovereignty and illegal in
few instances. Letters rogatory may be an available
alternative, but they come with their own shortcomings. 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
generally 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. Although 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. Assistance in Forfeiture, Restitution and Fine Collection
Proceedings
The forfeiture articles in most contemporary MLATs address
forfeiture, restitution, and the collection of criminal fines.
Forfeiture is the confiscation of the fruits and
instrumentalities of criminal activity.
In the United States, there are over one hundred federal
forfeiture laws, but the most heavily used are those enacted to
fight drug trafficking, money laundering and organized crime.
The proceeds resulting from cooperative federal-state
investigations are shared with participating state law
enforcement agencies. Both the money laundering and drug
forfeiture provisions make the same benefit available to
foreign countries. The United States will enforce foreign
forfeiture judgments and may confiscate any property located in
the United States but derived from, or traceable to, a serious
violation of a foreign controlled substances law.
Forfeiture varies from one jurisdiction to another and as a
consequence the impact of MLAT forfeiture provisions vary a
great deal from one treaty to the next. Experience under the
United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances has made forfeiture easier in
drug-related cases. Article 5 of the Convention requires the
parties: to adopt forfeiture laws with respect to proceeds
generated by drug trafficking; to establish the procedures to
identify, trace and freeze or seize proceeds, property,
instrumentalities and other forfeitable items; to permit
judicial access to bank, financial and other commercial
records; and to establish confiscation procedures for property
located within their territory but subject to confiscation as a
consequence of drug trafficking elsewhere.
MLAT forfeiture assistance articles are generally similar
to the U.N. Convention. They encourage the parties to give aid
where their laws permit, but they do not contemplate conforming
amendments within the parties' domestic law.
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.'' With exception of forfeiture judgments, courts
in the United States will not ordinarily enforce foreign
restitution orders or collect foreign criminal fines.
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 to a year 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
these treaties on September 12, 2000, (a transcript of the
hearing and questions for the record can be found in Senate
hearing 106-660 entitled, ``Consideration of Pending
Treaties''). The Committee considered the treaties on September
27, 2000, and ordered them favorably reported by voice vote,
with the recommendation that the Senate give its advice and
consent to the ratification of the proposed Treaties subject to
the understandings, declarations and provisos indicated in
section VIII, below.
VI. Committee Recommendation and Comments
The Committee 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.
The Committee believes that the following comments may be
useful to the Senate in its consideration of the proposed
treaties and to the Departments of State and Justice.
A. RESTRICTION ON COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT
As discussed in Exec. Rpt. 105-23, on July 17, 1998, a
majority of nations at the United Nations Diplomatic Conference
on the Establishment of an International Criminal Court (Rome,
Italy) approved a treaty that would, upon entry into force,
establish an International Criminal Court. The Court would be
empowered to investigate and prosecute war crimes, crimes
against humanity, genocide and aggression. The United States
voted against this treaty.
Because of the implications for Americans involved in
formulation and execution of our foreign policy, several
members of the Committee remain deeply concerned by the
prospect of an International Criminal Court empowered to
investigate the matters referred to above that is permanent,
could become politicized, and over which there would be limited
international political control. This concern is magnified by
events since adoption of Exec. Rpt. 105-23, namely,
International Criminal Tribunal for the Former Yugoslavia
Prosecutor Carla del Ponte's claim of jurisdiction over United
States and other NATO forces for their conduct during 1999
Kosovo combat operations.
In light of the Secretary of State's expressed desire that
the United States become a ``good neighbor'' to the Court if it
enters into being, and if certain safeguards designed to
protect U.S. officials and soldiers from prosecution are
approved, as well as other factors, several members of this
Committee are concerned that United States bilateral MLATs
could become conduits for transferring information or for
assistance from the United States to the Court even though the
United States voted against its establishment.
Accordingly, the Committee has decided once again to insert
a related understanding into each of the Resolutions of
Ratification accompanying the MLATs discussed in this report.
Specifically, this provision is designed to make clear that
information shared with a party by the United States pursuant
to the MLAT shall not be forwarded to the International
Criminal Court. The Committee recognizes that the terms of the
treaties will not give the United States, as the Requested
State, total control over the Requesting State's use of
assistance provided under the MLAT.
For instance, under the article on use limitations,
information provided under the MLAT 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 each MLAT to prevent any assistance
or information provided by the United States from being
transferred to the International Criminal Court.
The Committee intends that this restriction is binding on
the President, and would be removed only in the event that the
United States ratifies the treaty establishing the Court
pursuant to the procedures stated in Article II, section 2, of
the United States Constitution.
Lastly, Members of the Committee were troubled to learn at
the September 12, 2000, hearing on the MLATs covered in this
report that the Department of Justice does not at present
routinely include in all MLAT transmittal letters language
which forbids MLAT treaty partners from passing U.S.-provided
information to the International Criminal Court. While the
Committee recognizes that the Court does not yet exist, there
is nonetheless significant concern that information which is
made available today to treaty partners whose MLATs do not
contain the Senate's use limitation restriction (e.g., Spain)
may conclude that they are free, in the future, to share U.S.-
provided information with the International Criminal Court if
it comes into existence. Consequently, the Committee strongly
recommends--even if a given MLAT was ratified without the
Senate understanding--that the Department of Justice routinely
include an International Criminal Court use prohibition clause
when it transmits information or provides assistance to any
MLAT treaty partner.
B. USE OF MLATS TO AGGRESSIVELY PURSUE INTERNATIONAL PARENTAL CHILD
ABDUCTORS
The Committee remains concerned about the serious problem
of international parental child abduction. Notably, a September
2000 General Accounting Office report (GAOP/GAO/NSIAD-00-226BR)
reveals that an estimated 1,000 children are abducted by one of
their parents from the United States annually. Between January
1995 and May 15, 2000, ``left behind'' American parents
initiated nearly 300 cases under the 1980 Hague Convention on
the Civil Aspects of International Child Abduction involving
just three countries: Germany, Sweden and Austria. Well over
half of those cases are unresolved.
The Committee reiterates its grave concern over this
troubling issue. Under current practice, MLATs provide for
cooperation between law enforcement officials. Although the
Hague Treaty addresses civil aspects of this issue, the act of
international parental abduction is a Federal crime. The
Committee believes that care should be taken to ensure that
MLATs will be useful tools for attaining information and other
cooperation to assist in the return of abducted or wrongfully
retained children. The Committee anticipates that the Executive
Branch will consider terminating MLATs or taking other measures
in the event that the Central Authority of a given party
consistently fails to adequately provide assistance under the
respective MLAT. The Committee is especially concerned that the
proposed MLATs discussed in this report be monitored to ensure
cooperation in the exchange of information related to
international parental child abduction.
The Departments of State and Justice testified on September
12, 2000, that these treaties are essential to ensuring that
criminals do not evade prosecution. This same principle should
be true for the crime of parental child abduction in violation
of the 1993 International Parental Kidnaping Act. The Committee
expects, therefore, that officials of the Departments of State
and Justice will seek law enforcement cooperation in all cases
unless it will hinder U.S. law enforcement efforts. The
Committee also expects these officials to raise this issue in
the course of negotiation of all bilateral law enforcement
treaties and in other bilateral diplomatic exchanges.
C. MLAT WITH NIGERIA
The Executive Branch testified on September 12, 2000,
before the Committee that the MLAT with Nigeria will be ``an
effective tool in the investigation and prosecution of a wide
variety of modern crimes of concern to the U.S. and Nigeria.''
The Committee notes that the MLAT with Nigeria was concluded in
1989, and received in the Senate in 1992. The treaty has
languished owing in part to United States concerns about the
lack of a democratic government in Nigeria. The return of
democratic government in Nigeria now makes it possible to
proceed with consideration of this agreement. Sophisticated
international criminality originating in Nigeria in narcotics
trafficking, wire fraud and other areas are imperatives which
also led the Committee to move forward with this MLAT.
VII. Explanation of Proposed Treaties
The following are the article-by-article technical analyses
provided by the Departments of State and Justice for each of
the mutual legal assistance treaties covered by this Report.
Technical Analysis of the Treaty Between The Government of the United
States of America And The Government of the Republic of Cyprus on
Mutual Legal Assistance in Criminal Matters
On December 21, 1999, the United States signed a Treaty
Between the Government of the United States of America and the
Government of the Republic of Cyprus 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, international drug trafficking and
other offenses.
It is anticipated that the Treaty will be implemented in
the United States largely pursuant to the procedural framework
provided by Title 28, United States Code, Section 1782. Cyprus
currently does not have any specific law on mutual legal
assistance, but it assured the United States that it will enact
new legislation 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
history. 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 Cyprus, 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\ but 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 Cyprus under the
Treaty in connection with investigations prior to charges being filed
in Cyprus.
\2\ One U.S. 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, 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.
Paragraph 3 of this article makes it clear that there is no
requirement of dual criminality under this Treaty for
cooperation. Thus, assistance is to 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 Cyprus criminal law differ
significantly, and a general dual criminality rule would make
assistance unavailable in many significant areas. During the
negotiations, the Cyprus delegation gave assurances that
assistance would be available under the Treaty to the United
States in investigations of major crimes such as conspiracy;
drug trafficking, including operating a 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; Export
Control Act violations; criminal tax; securities fraud and
insider trading, environmental protection, and antitrust
offenses.
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 Cyprus 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
This article requires that each Party \5\ establish a
``Central Authority'' to make and receive Treaty requests. The
Central Authority of the United States would make all requests
to Cyprus on behalf of federal agencies, state agencies, and
local law enforcement authorities in the United States. The
Central Authority of Cyprus would make all requests emanating
from officials in Cyprus.
---------------------------------------------------------------------------
\5\ The terms ``Party'' and ``State'' are used interchangeably in
the Treaty and have the same meaning.
---------------------------------------------------------------------------
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 proper 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
Attorney General of Cyprus or a person designated by the
Attorney General will serve as the Central Authority for
Cyprus.
---------------------------------------------------------------------------
\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.
Paragraph 4 states explicitly that in urgent cases the
Central Authorities may transmit requests through the
International Criminal Police Organisation (INTERPOL). Although
no mutual legal assistance treaty now in force explicitly
provides for requests to be made through INTERPOL, it is
usually anticipated that the Central Authorities may select any
means of communication that they find convenient, including
INTERPOL. Many recent U.S. extradition treaties explicitly
permit provisional arrest requests to be submitted through the
INTERPOL channel,\7\ and the use by the Central Authorities of
INTERPOL's communication facilities for urgent mutual
assistance requests should prove equally valuable. The
negotiators agreed that this paragraph does not authorize
INTERPOL to participate substantively in its implementation.
---------------------------------------------------------------------------
\7\ See, e.g., U.S.-Cyprus Extradition Treaty, signed at Washington
June 17, 1996, entered into force September 14, 1999, art. 11(1).
---------------------------------------------------------------------------
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty. These
restrictions are similar to those found in other mutual legal
assistance treaties.
Paragraph (1)(a) permits the denial of a request if it
relates to a political offense or an offense under military law
that 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.''
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,
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
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 U.S. Central Authority may invoke
paragraph 1(b) to decline to provide information pursuant to a
request under this Treaty if 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 a felony,
including the facilitation of the production or distribution of
illegal drugs.\8\
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\8\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See,
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark Mr. Richard,
Deputy Assistant Attorney General, Criminal Division, United States
Department of Justice).
---------------------------------------------------------------------------
Paragraph (1)(c) permits the denial of a request if
execution of the request would violate the Constitution of the
Requested State or the obligations of the Requested State under
any international multilateral treaty relating to human rights.
The clause permitting denial if the request would violate the
Constitution of the requested state is self-explanatory, and is
similar to provisions that appear in several other treaties.\9\
The clause permitting denial if the request would violate a
human rights convention was requested by Cyprus' delegation.
---------------------------------------------------------------------------
\9\ U.S.-Jamaica Mutual Legal Assistance Treaty, signed at Kingston
July 7, 1989, entered into force July 25, 1995, art. 2(1)(e).
---------------------------------------------------------------------------
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 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 prosecution of a political offense (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 giving the Requesting State a chance 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, signed at
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27
U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
Paragraph 3 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.'' If the
request is not in writing, it must be confirmed in writing
within ten days unless the Central Authority of the Requested
State agrees otherwise. Each request shall be in the language
of the Requesting State accompanied by a translation in the
language of the Requested State (i.e., English for the United
States and Greek for Cyprus) 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 lists nine kinds of
information that are important but not always crucial, and must
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.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority to promptly
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 competent
judicial or other authorities 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 Cyprus. Rather, it is anticipated that when a request from
Cyprus 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. Similarly,
Cyprus' delegation informed the U.S. delegation that this
general language should not be understood to authorize the use
of the Treaty to conduct criminal proceedings in Cyprus for the
U.S. (e.g., the accepting of guilty pleas from defendants).
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 specifically
authorizes United States courts to use all of their powers to
issue subpoenas and other process to satisfy a request under
the Treaty. It also 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.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for
representation of the Requesting State in the execution of a
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.
Paragraph 3 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. 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 U.S. and Cyprus
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documents obtained abroad to be admitted in
evidence if they are duly certified and the defendant has been
given fair opportunity to test its authenticity.\11\ Since
Cyprus' law contains no similar provision, documents acquired
in Cyprus in strict conformity with Cyprus procedures might not
be admissible in United States courts. Furthermore, United
States courts use procedural techniques such as videotape
depositions that simply are not used in Cyprus even though they
are not forbidden there.
---------------------------------------------------------------------------
\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 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.
Finally, Paragraph 3 provides that where neither the Treaty
or the request specifies a particular procedure to be followed,
the request shall be executed in accordance with the
appropriate procedure under the laws applicable to criminal
investigations and proceedings 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 legal proceeding in the
Requested State. The paragraph also allows the Requested State
to provide the information to the Requesting State subject to
conditions needed to prevent 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 use its best efforts
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 mutual legal
assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal Assistance
Treaty, signed at Washington January 16, 1998, entered into force
August 26, 1999, 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 cannot be provided immediately, 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\ Since
the cost of retaining counsel abroad to present and process
letters rogatory is sometimes quite high, this provision 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. Article 6 does provide 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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\13\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty,
signed at Washington February 4, 1998, entered into force May 7, 2000,
art. 6.
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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 the Requesting State not use
any information or evidence provided under the Treaty in any
investigation, prosecution, or proceeding other than that
described in the request without the prior consent of Central
Authority of the Requested State. If such a use limitation is
required, the Requesting State must comply with the
requirement. It will be recalled that Article 4(2)(d) states
that the Requesting State must specify the purpose for which
the information or evidence 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 furnishes 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 the Requesting State accepts the
evidence subject to conditions of confidentiality, the
Requesting State must 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 Cyprus 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 such a condition.
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.\14\ Any such
proposed disclosure shall be notified by the Requesting State
to the Requested State in advance.
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\14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in a manner consistent
with Paragraph 1 or 2, the Requesting State is free to use the
evidence for any purpose. When 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 Cyprus authority has used
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 give statements \15\ or
produce items, including documents and 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.
---------------------------------------------------------------------------
\15\ The Treaty draws a distinction between taking ``testimony''
and taking ``statements'' because under Cyprus' law ``testimony'' can
only be given after formal charges have been filed.
---------------------------------------------------------------------------
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 (e.g., the defendant and his counsel in criminal cases)
shall be permitted by the Requested State to be present and
question the person giving the testimony or evidence.
Paragraph 4 states that when a person asserts a claim of
immunity, incapacity, or privilege under the laws of the
Requested State, that claim shall be resolved in accordance
with the law of the Requested State. This is consistent with
Article 5(3), and 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 Cyprus is guaranteed
the right to invoke any of the testimonial privileges (e.g.,
attorney-client, inter-spousal) 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 Cyprus may raise any of the similar privileges
available under the law of Cyprus.
---------------------------------------------------------------------------
\16\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Paragraph 4 also states 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 take the
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.-Barbados Mutual Legal Assistance Treaty,
signed at Bridgetown February 28, 1996, and entered into force March 3,
2000, art. 8(4).
---------------------------------------------------------------------------
Paragraph 5 states that evidence produced pursuant to this
article shall, upon request, be authenticated by an
attestation, including, in the case of business records,
authentication in the manner indicated in Form A appended to
the Treaty. In Cyprus, the attestation will be given under
oath, before a judge magistrate, or judicial officer, and any
false statements made in the attestation will be subject to
prosecution in Cyprus as a ``false oath or declaration'' in
violation of Article 117 of Cyprus' Criminal Code. Thus, the
provision establishes a procedure for authenticating records in
a manner essentially similar to Title 18, United States Code,
Section 3505. The absence or nonexistence of such records
shall, upon request, be certified through the use of Form B,
also appended to the treaty. Records authenticated by Form A,
or Form B certifying the absence or nonexistence of such
records, shall be admissible in evidence in the Requesting
State. 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 State 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 undertaking 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,
like most other U.S. bilateral mutual legal assistance
treaties, 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 Cyprus under
this article in appropriate cases.
Paragraph 3 states that records provided under this article
may be authenticated by the officials responsible for
maintaining them through the use of Form C appended to the
Treaty. No further authentication is required. If authenticated
in this manner, the records shall be admissible in evidence in
the Requesting State. The paragraph also provides for the
appropriate officials to certify the absence or nonexistence of
records, through Form D appended to the Treaty. 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'' in
the Requesting State 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 Outside of the Requested State
This article provides that upon request, the Requested
State shall invite persons in the Requested State to travel
outside of the Requested State (i.e., to the Requesting State
or to a third state) to appear. The Central Authority of the
Requested State shall inform the Central Authority of 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. Therefore,
paragraph 2 provides that the Requesting State must indicate to
the Requested State the extent to which the person's expenses
will be paid. 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 paragraph provides that the
person may ask that the Requesting State advance the money to
pay these expenses, and that this advance may be handled
through the Embassy or 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 under this Article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty by reason of
acts or convictions which preceded the person's departure for
the Requesting State 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 states that any safe conduct provided under
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
Central Authority of the Requesting State may extend the safe
conduct for up to fifteen days if it determines 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.\18\
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\18\ 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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Article 11 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,\19\ which in
turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters.\20\ Paragraph 1 provides
that persons in custody in the Requested State whose presence
outside of that State (i.e., to the Requesting State or to a
third state) is sought for purposes of assistance under this
Treaty, such as providing testimony in a criminal prosecution,
shall be transferred in custody for that purpose if the person
consents and the Central Authorities of both states agree.
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\19\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at
Bern May 25, 1973, entered into force January 23, 1977, art. 26.
\20\ It is also consistent with 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.\21\
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\21\ 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, and the obligation,
for the receiving State to keep such a person in custody
throughout the person's stay there, unless the sending State
specifically authorizes release. This paragraph also authorizes
and obligates the receiving State to return the person in
custody to the sending State as soon as circumstances permit or
as otherwise agreed, 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.
In keeping with the obligation to return a person
transferred under this article, paragraph (3)(c) explicitly
prohibits the Party to whom a person is transferred from
requiring the transferring Party to initiate extradition or
other proceedings 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. Finally, Paragraph 3(e)
states that if the transfer of the person outside the Requested
State is to a third state rather than to the Requesting State,
it is the Requesting State that nevertheless must be
responsible for making all arrangements to meet the
requirements of this paragraph, including the requirements that
the person be kept in custody and returned 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 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--Transit of Persons in Custody
Article 11 contemplates that persons in custody will be
moved from State to State for purposes of mutual assistance,
and it is reasonable to anticipate situations in which one
State may need to bring persons in custody through the other on
the way to or from third States. Article 12 provides the legal
framework for such transit. Similar articles appear in other
recent U.S. mutual legal assistance treaties.\22\
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\22\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force, September 17, 1990,
art. 11.
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Paragraph 1 states that a Requested State may authorize the
transit through its territory of a person whose personal
appearance has been requested in investigations, prosecutions,
or proceedings in the Requesting State. Despite the
discretionary nature of such transit, an explicit reference to
constitutional limitations was included because at the request
of the Cyprus delegation because of its concerns about
potential litigation attempting to apply its constitutional ban
on extradition of nationals to such transit.
Paragraph 2 provides the Requested State with express
authority to keep a person in custody during transit and
imposes an obligation to do so.
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 in whole or in part to a Treaty request. Identical
provisions appear in most U.S. mutual legal assistance
treaties.\23\
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\23\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty,
signed at Washington January 16, 1998, entered into force August 26,
1999, art. 13.
---------------------------------------------------------------------------
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 Cyprus 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 must be transmitted by the Central Authority of
the Requesting 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.
U.S. 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 and is similar to
provisions in many other U.S. mutual legal assistance
treaties.\25\
---------------------------------------------------------------------------
\24\ For example, in 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.), a search warrant was issued February 24,
1984, based on a request under Title 28, United States Code, Section
1782.
\25\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 15.
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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 Cyprus will have to be supported by a
showing of probable cause for the search. A U.S. request to
Cyprus 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 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 continuity of custody, the
identity of the item, 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 provide 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.
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. 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 17--Proceeds and Instrumentalities of Offenses
A major goal of the Treaty is to enhance the efforts of
both the United States and Cyprus 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 16 of the U.S.-
Barbados Mutual Legal Assistance Treaty and Article 17 of the
U.S.-Latvia. Paragraph 1 authorizes the Central Authority of
one Party 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 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 Cyprus, 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,\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 kidnaping, 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. \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. Proceeds of such
activity become subject to forfeiture pursuant to Title 18, United
States Code, Section 981 by way of Title 18, United States Code,
Section 1956 and Title 18, United States Code, Section 1961. The
forfeiture statute applies to property involved in transactions in
violation of section 1956, which covers any activity constituting an
offense defined by section 1961(1), which includes, among others, Title
18, United States Code, Section 2314.
\27\ 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.\28\ The U.S. 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, December 20,
1988.
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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 Party 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 Party to take any action that would exceed its
internal legal authority. It does not, for instance, mandate
institution of forfeiture proceedings or initiation of
temporary immobilization in either country against property
identified by the other if the relevant prosecution officials
do not deem it proper to do so.\29\
---------------------------------------------------------------------------
\29\ In Cyprus, unlike the United States, the law does not allow
for civil forfeiture. However, Cyprus law permits forfeiture in
criminal cases, and ordinarily a defendant must be convicted in order
for Cyprus to confiscate the defendant's property.
---------------------------------------------------------------------------
U.S. 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 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.
---------------------------------------------------------------------------
\30\ See, Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------
Article 18--Compatibility with Other Arrangements
This article states that assistance and procedures set
forth in this Treaty shall not prevent either Party from
granting assistance to the other Party through the provisions
of other applicable international agreements. Article 18 also
states that the Parties may provide assistance pursuant to any
bilateral arrangement, agreement, or practice that may be
applicable.\31\ The Treaty would leave the provisions of United
States and Cyprus law on letters rogatory completely
undisturbed, and would not alter any pre-existing agreements
concerning investigative assistance.
---------------------------------------------------------------------------
\31\ See, e.g., the Agreement for Mutual Assistance Between Customs
Services, signed at Washington June 2, 1987, entered into force August
21, 1987. Convention for the Avoidance of Double Taxation and the
Prevention of Fiscal Evasion with Respect to Taxes on Income, with
related notes, signed at Nicosia March 19, 1984; entered into force
December 31, 1985.
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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 Central Authorities 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. Similar provisions are contained in all recent United
States mutual legal assistance treaties. It is anticipated that
the Central Authorities will conduct regular consultations
pursuant to this article.
Article 20--Ratification, Entry Into Force, and Termination
Paragraph 1 states that the Treaty is subject to
ratification and that the instruments of ratification are to be
exchanged as soon as possible.
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 the date of the Treaty's
entry into force, without regard to whether the relevant acts
or omissions under investigation occurred before, on or after
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 receipt of written
notification. Similar termination provisions are included in
other United States mutual legal assistance treaties.
------
Technical Analysis of the Mutual Legal Assistance Treaty Between the
Government of the United States of America and the Government of Egypt
On May 3, 1998, the United States signed a Treaty Between
the Government of the United States of America and the
Government of the Arab Republic of Egypt on Mutual Legal
Assistance in Criminal Matters (the ``Treaty''). In recent
years, the United States has signed 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.
The Treaty with Egypt is expected to be a major advance for
the United States in its attempts to win the cooperation in
Africa and the Middle East in combating organized crime,
transnational terrorism, international drug trafficking, and
other crimes.
It is anticipated that the Treaty will be implemented in
the United States largely pursuant to the procedural framework
provided by Title 28, United States Code, Section 1782. The
Egyptian delegation informed the U.S. delegation that Egypt has
no specific mutual legal assistance law, and that it will
render assistance pursuant to the Treaty itself, referring to
its domestic procedural law where applicable.
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
history. 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 of Article 1 requires the Parties to provide
assistance in all matters involving the investigation,
prosecution, and prevention of offenses, and in proceedings
relating to criminal matters.
The delegations understood that the term ``investigations''
includes grand jury proceedings in the United States and
similar pre-charge proceedings in Egypt, and other legal
measures taken prior to the filing of formal charges in either
Party.\1\ The term ``proceedings'' is intended to cover the
full range of proceedings in a criminal case, including such
matters as bail and sentencing hearings.\2\ 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, disbarment proceedings and proceedings
to forfeit to the Government the proceeds of illegal drug
trafficking may be civil in nature; \3\ such proceedings were
discussed with the Egyptian delegation and are covered by the
Treaty. The U.S. delegation also informed the Egyptian
delegation that requests for assistance might emanate from any
of various U.S. agencies, including the following: the Federal
Bureau of Investigation; the Securities and Exchange
Commission; the Internal Revenue Service; the U.S. Customs
Service; the Bureau of Alcohol, Tobacco, and Firearms; and the
Drug Enforcement Administration. Finally, the U.S. delegation
indicated that requests might arise before a case became
criminal in nature; for example, the SEC often investigates
matters before it is known whether criminal proceedings will be
instituted.
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\1\ The requirement that assistance be provided under the Treaty 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 or not to file criminal
charges. This obligation is a reciprocal one, and the United States
must assist Egypt under the Treaty in connection with investigations
prior to charges being filed in Egypt.
\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. See, Fonseca v. Blumenthal, 620 F.2d 322 (2nd Cir. 1980); In
Re Letters Rogatory Issued by the Director of Inspection of the
Government of India, 385 F.2d 1017 (2nd Cir. 1976). 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 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 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.
Paragraph 3 states that assistance is to be provided in
connection with any conduct that is the subject of
investigation or proceedings in the Requesting State. This
language is intended to make it clear that there is no
requirement of dual criminality for cooperation under this
treaty. Thus, assistance is to be provided even when the
criminal matter under investigation in the Requesting Party
would not be a crime in the Requested Party. Article 1(3) is
important because a dual criminality rule would make assistance
unavailable where United States and Egypt criminal laws differ.
In discussing the types of cases for which assistance might
be requested, the U.S. delegation delineated a number of
offenses on which it might seek assistance. Some of the
offenses discussed related to the following: drug trafficking
and money laundering; money laundering in the non-drug context;
racketeering, including RICO; continuing criminal enterprises;
cases involving criminal and civil forfeiture; kidnaping,
including parental kidnaping; terrorism; fraud, including fraud
against the government, securities fraud, and insider trading;
customs, export control, and smuggling cases; taxes; the
environment; foreign corrupt practices and bribery; antitrust
violations; currency reporting; computer crime; and alien
smuggling. Egypt indicated that offenses on which it would seek
evidence are similar to those discussed by the U.S. delegation.
Paragraph 4 contains a standard provision in U.S. 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, nor is it intended to
extend to civil matters. Private litigants in the United States
may obtain evidence from Egypt 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, or to impede the execution of a
request.
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\4\ See, United States v. Johnpoll, 739 F.2d 702 (2nd Cir.), cert.
denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article 2--Central Authorities
Article 2 of the Treaty requires that each Party establish
a ``Central Authority'' for transmission, reception, and
handling of treaty requests. The Central Authority of the
United States would make all requests to Egypt on behalf of
federal agencies, state agencies, and local law enforcement
authorities in the United States. The Egyptian Central
Authority will make all requests emanating from officials in
Egypt.
The Central Authority for the Requesting Party will
exercise discretion as to the form and content of requests, and
also as to the number and priority of requests. The Central
Authority of the Requested Party is also 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 duties of Central Authority under mutual legal
assistance treaties to the Assistant Attorney General in charge
of the Criminal Division.\5\ Paragraph 2 also states that the
Minister of Justice of Egypt or the person designated by the
Minister of Justice will serve as the Central Authority for
Egypt.
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\5\ 28 C.F.R. Section 0.64-1. The Assistant Attorney General for
the Criminal Division has in turn delegated the authority to the Deputy
Assistant Attorneys General and to the Director of the Criminal
Division's Office of International Affairs, in accordance with the
regulation. Directive No. 81, 45 Fed.Reg. 79,758(1980), as corrected at
48 Fed. Reg. 54,595(1983). This authority is further delegated to
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, 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. These restrictions
are similar to those found in other mutual legal assistance
treaties.
Paragraph 1(a) permits the denial of a request if it
relates to an offense under military law which would not be an
offense under ordinary criminal law.
Paragraph 1(b) permits the Central Authority of the
Requested State \6\ 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.
---------------------------------------------------------------------------
\6\ The terms ``Party'' and ``State'' are used interchangeably in
the Treaty and have the same meaning.
---------------------------------------------------------------------------
The delegations agreed that the term ``security'' includes
cases where assistance might involve disclosure of information
which 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 which 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 which 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
also 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; attaining that purpose
would be hampered if sensitive law enforcement information
available under the Treaty were to fall into the wrong hands.
Therefore, the U.S. Central Authority may invoke Article
3(1)(b) to decline to provide information pursuant to a request
under this Treaty if 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 a felony,
including facilitation of the production or distribution of
illegal drugs.\7\
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\7\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with, e.g. Luxembourg, Hong Kong, Poland, and Barbados. See,
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2nd Sess., 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 interests'' provision. Indeed, a
major objective of the Treaty is to provide a formal, pre-
existing channel for making such information available for law
enforcement purposes.
The Treaty, unlike most other mutual legal assistance
treaties, does not expressly permit the denial of a request if
it involves a ``political offense.'' The U.S. delegation
proposed that this exception be included in the Treaty, but, as
the term was unfamiliar to the Egyptian delegation, it was
removed. The delegations agreed that the Central Authorities
could deny assistance in cases involving political offenses
pursuant to the ``essential interests'' provision of Article
3(1)(b). An exchange of diplomatic notes to this effect was
submitted for the Senate's information.
Paragraph 1(c) permits the denial of a request if it was
not made in conformity with the Treaty.
Paragraph 2 obligates 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 State might request information
which could be used either in a routine criminal case (which
would be within the scope of the Treaty) or in a case involving
a political offense (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. It is anticipated that
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.
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 Content of Requests
Paragraph 1 of this Article 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. The request shall be in the
language of the Requested State unless agreed otherwise. The
Egyptian delegation requested that all requests to Egypt be in
Arabic and the United States expects that all requests from
Egypt will be in English.
Paragraph 2 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty and which must
be included in each request. Article 4(3) outlines kinds of
information which are important, but not always crucial, and
must 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 to promptly
execute a request. The Treaty contemplates 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 requirement but
its execution requires action by some other agency in the
Requested State, the Central Authority will promptly transmit
the request to the correct agency for execution. For example,
the Egyptian delegation explained that given the strict banking
laws in Egypt, records cannot be released without an order
issued by the Court of Appeal in Cairo. When a request for
Egyptian bank records is made, the Minister of Justice will
transmit the request to a general prosecutor who, in turn, will
obtain the necessary order on behalf of the United States.
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 to execute the
request. This provision is neither intended nor understood to
authorize the use of the grand jury in the United States for
the collection of evidence pursuant to a request from Egypt.
Rather, it is anticipated that when a request from Egypt
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 this Treaty.
The third sentence in Paragraph 1 reads ``[t]he Courts of
the Requested State shall have authority to issue orders
necessary to execute the request.'' This language specifically
authorizes United States courts to use all of their powers to
issue subpoenas and other process to satisfy a request under
the Treaty. Other recent mutual legal assistance treaties
specify that the courts have authority to issue subpoenas and
search warrants, as well as ``other orders necessary'' to
execute the request. The Egyptian delegation explained that the
specific terms would have no meaning when translated to Arabic;
therefore, they asked that the broader terminology be used. The
agreed upon 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 legal assistance requests.
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 other 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 cost.
Paragraph 3 provides that requests shall be executed
according to the internal laws and procedures of the Requested
State except to the extent that the 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. For the United States, the Treaty is intended to
be self-executing, and no new or additional legislation is
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 are prohibited in
the Requested State. This provision is necessary for two
reasons:
First, there are significant differences between the
procedures that must be followed by U.S. and Egyptian
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documents obtained abroad to be admitted in
evidence if they are duly certified and the defendant has been
given fair opportunity to test its authenticity.\8\ Since
Egypt's law contains no similar provision, documents acquired
in Egypt in strict conformity with Egyptian procedures might
not be admissible in U.S. courts. Furthermore, U.S. courts use
procedural techniques such as videotape depositions that simply
are not used in Egypt even though they are not forbidden there.
---------------------------------------------------------------------------
\8\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be subject 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 where 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 which 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 on
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 which is ordinarily protected by Rule 6(e) of the
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) of the Treaty. Therefore, 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 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 obligates 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. The Egyptian delegation indicated that requests
for legal assistance can be kept confidential, even when bank
records are sought; bank account holders will not be informed
that an order for records has been issued and that records have
been obtained.
---------------------------------------------------------------------------
\9\ This provision is similar to language in other United States
mutual legal assistance treaties. See, e.g., U.S.-Lithuania Mutual
Legal Assistance Treaty, signed at Washington January 16, 1998, entered
into force August 26, 1999, 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 two 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 the
request. If the assistance sought is not provided, or if
execution is delayed or postponed, 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
Article 6 of the Treaty 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.\10\
Article 6 does oblige the Requesting State to pay fees of
expert witnesses, translation and transcription costs, and
allowances and expenses related to travel of persons pursuant
to Articles 10 and 11. The delegations also agreed that the
States could negotiate extraordinary costs which might be
incurred in a particular case.
---------------------------------------------------------------------------
\10\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty,
signed at Washington February 4, 1998, entered into force May 7, 2000,
art. 6.
---------------------------------------------------------------------------
Article 7--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may request 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 the Requested State provides such consent, the Requesting
State must comply with any conditions specified with the
consent. It will be recalled that Article 4(2)(d) requires the
Requesting State to specify the purpose for which the
information or evidence is sought.
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, and 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 it provides to the Requesting State be
kept confidential or be used only subject to specified terms
and conditions. The delegations agreed that conditions of
confidentiality would be imposed only when necessary, and would
be 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 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.
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.\11\ Any such
proposed disclosure shall be noticed by the Requesting State to
the Requested State in advance.
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\11\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in accordance with
Paragraph 1 or 2 of this Article, the Requesting State is free
to use the evidence for any purpose. When 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 described in the press. 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) of the Treaty,
the restrictions outlined in Article 7 are for the benefit of
the two nations that are parties to the Treaty (the United
States and Egypt) and the invocation and enforcement of these
provisions are left entirely to the parties. Where any
individual alleges that an authority in the Requesting State is
seeking to use information or evidence obtained from the
Requested State in a manner inconsistent with this article, the
recourse would be for the person to inform the Central
Authority of the Requested State 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
shall be compelled, if necessary, to appear and testify or
produce 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. The Egyptian delegation indicated that
compulsory process is available in Egypt, as in the United
States. There, a court issues a notice, or subpoena, to the
appropriate person or entity. Where the receiving entity is not
responsive to the notice, the responsible person faces fines
and imprisonment.
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, except to the extent prohibited
under the law of the Requested State, any interested parties,
including the defendant and his or her counsel, shall be
permitted to be present during the taking of testimony under
this article. This provision was the subject of much discussion
during the treaty negotiations, resulting in an Agreed Minute,
signed by both delegations, setting forth their common
understanding on its implementation. The Agreed Minute confirms
that Egyptian laws authorize the presence of the defendant or
his representative during the taking of related testimony and
records the critical need for U.S. law enforcement personnel
connected with the investigation or prosecution of an offense
for which evidence or testimony is sought in Egypt to be
present during the taking of such evidence or testimony. The
Minute sets forth the Egyptian delegation's explanation that
under Egyptian law the victim of the offense that is the
subject of the assistance request has the right to designate a
representative to be present during the taking of testimony or
evidence by a state prosecutor. In this situation, the victim
could designate any person (for example, a U.S. official) to be
its representative.\12\ In the case of crimes such as narcotics
offenses, where the victim was the United States as a whole
rather than a specific individual, the Egyptian Delegation
confirmed that the U.S. Central Authority could propose and the
Egyptian authorities would permit a U.S. official to be present
during the taking of such evidence or testimony in Egypt when
such official could provide information relevant to the
execution of the request by having him designated as an expert
or witness with respect to the investigation. For its part, the
United States delegation confirmed that Egyptian officials
connected with the investigation or prosecution of an offense
for which evidence or testimony is sought in the United States
would be permitted to be present during the taking of such
evidence or testimony.
---------------------------------------------------------------------------
\12\ The Egyptian delegation indicated that its rules with regard
to who may be present during the taking of testimony are strict and
exclusive, and that these rules provide the ``legal qualification''
necessary for one to be present. Under Egyptian law, the following
persons may be present during the taking of testimony outside of trial,
such as at a deposition: the public prosecutor; the witness and his or
her counsel; the victim and a representative of the victim; the person
suspected or accused of the crime and his or her counsel; and an expert
able to provide information relevant to the topic on which testimony is
given.
---------------------------------------------------------------------------
Paragraph 3 also provides that persons specified in a
request for assistance may ``pose questions directly or
indirectly to the person giving the testimony.'' The Egyptian
delegation indicated that only a prosecutor, acting as a juge
d'instruction, may pose questions to a witness. The U.S.
delegation explained that there is a need for prosecutors and
the defendant sometimes to pose questions during the course of
an examination. The Egyptian delegation agreed that such
questions could be posed through the judge, by means of a
written list of questions or otherwise, but that the questions
could not be asked directly.
Paragraph 4 states that if a witness asserts a claim of
immunity, incapacity, or privilege under the laws of 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 most of our
recent mutual legal assistance treaties.\13\ The negotiating
delegations agreed that the Requesting State would inform the
Requested State of any potential privileges which might be
raised, to the extent that they are known, when a request is
made. It is understood that when a person asserts a claim of
immunity, incapacity, or privilege under the laws of the
Requested State, that claim shall be resolved in accordance
with the law of the Requested State. This is consistent with
Article 5(3) and 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 Egypt is guaranteed
the right to invoke any of the testimonial privileges
(attorney-client, inter-spousal) 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.\14\ A witness
testifying in Egypt may raise any of the similar privileges
available under Egyptian law, including the privilege against
self-incrimination.
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\13\ See, e.g., U.S.-Barbados Mutual legal Assistance Treaty,
signed at Bridgetown February 28, 1996, and entered into force March 3,
2000, art. 8(4).
\14\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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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 using 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
paragraph also provides for certification of the absence or
nonexistence of records, using Form B, also appended to the
Treaty. The final sentence of the paragraph provides for the
admissibility of authenticated documents, and the certificate
of nonexistence, as evidence without additional foundation or
authentication. With respect to the United States, this
paragraph is self-executing and does not need implementing
legislation. However, admissibility ultimately will be
determined by the judicial authority presiding over the trial.
Evidentiary tests other than authentication (such as relevance,
materiality, etc.) would still have to be satisfied in each
case.
Article 9--Records of Government Agencies
Paragraph 1 obliges each State to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a governmental 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
either country.\15\
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\15\ The Egyptian delegation indicated that even publicly available
records should be obtained through the use of a formal treaty request,
in order to qualify U.S. law enforcement officials to receive the
records. The Egyptian delegation also indicated that records such as
criminal records and records of conviction can be obtained
administratively from the Ministry of Interior.
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Paragraph 2 provides that the Requested State may share
with its treaty partner copies of nonpublic information
contained in government files. The undertaking 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
such 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 U.S. delegation discussed whether this treaty could
serve as a basis for exchange of information in tax matters. It
was the intention of the U.S. 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 Egyptian delegation indicated that information
could be exchanged in tax matters; accordingly, the U.S.
delegation is satisfied that this Treaty, like most other U.S.
mutual legal assistance treaties, 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
Egypt under this article in appropriate cases. In addition,
cooperation in tax matters is reflected by the Convention for
the Avoidance of Double Taxation and the Prevention of Fiscal
Evasion with Respect to Taxes on Income entered into force
between Egypt and the United States on December 31, 1981.
The third paragraph states that documents provided under
this article may be authenticated using Form C attached to the
Treaty, and, if certified or authenticated in this manner, the
evidence shall be admissible in evidence in the Requesting
State. Moreover, the paragraph provides that the absence or
nonexistence of records may, when requested, be certified using
Form D, also appended to the Treaty. Thus, the Treaty
establishes a procedure for authenticating official foreign
records by certification 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, like Article 8(5), states that documents
authenticated under this paragraph, as well as certificates of
absence or nonexistence, shall be ``admissible;'' it will, of
course, be up to the judicial authority presiding over the
trial to determine whether the evidence should in fact be
admitted. Evidentiary tests other than authentication (such as
relevance or materiality) must be established in each case.
Article 10--Testimony in the Requesting State
Article 10 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. Therefore, paragraph 1 provides
that the witness shall be informed of the extent of the
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 may, if it so chooses, determine that it will
not subject the witness to service of process or detention or
any restriction of personal liberty for acts committed before
the witness left the Requested State to serve as a witness. It
should be noted that this 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 under this article or
at a later time.
Paragraph 3 states that any safe conduct provided under
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 State and thereafter returns to it. However, the
Central Authority of the Requesting State may extend the safe
conduct up to fifteen days if it determines 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 the custody of another country. In
some instances, the country involved is willing and able to
``lend'' the witness to the United States Government, provided
that the witness would be carefully guarded while in the United
States and returned to the foreign country at the conclusion of
the testimony. On occasion, the Department of Justice has been
able to arrange 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 U.S. Justice Department
and the U.S. 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. This article is based on Article 26 of the
U.S.-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\ It provides that,
upon request, a person in custody in either State whose
presence is requested in the other State for purposes of
assistance under this Treaty may be transferred to that State
if the person consents and if the Central Authorities of both
States agree. There have also been situations in which a person
in custody on a criminal matter has demanded permission to
travel to another country to be present at a deposition being
taken there in connection with the case.\19\ Article 11(1) also
covers this situation.
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\17\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at
Bern, May 25, 1973, entered into force January 23, 1977, art. 26.
\18\ It is also consistent with Title 18, United States Code,
Section 3508, which provides for the transfer to the United States of
witnesses in the custody of other States whose testimony is needed at a
federal criminal trial.
\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 2 provides express authority and the obligation
for the receiving State to maintain such a transferred person
in custody throughout his or her stay there, unless the sending
State specifically authorizes release. The paragraph also
requires the receiving State to return the person in custody to
the sending State, as soon as circumstances permit or as
otherwise agreed by both 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 State.
In keeping with the obligation to return a person
transferred under this article, paragraph (2)(c) expressly
prohibits the State to whom a person is transferred from
requiring the transferring State to initiate extradition or any
other proceedings before the status quo is restored by the
return of the person transferred. Finally, paragraph (2)(d)
states that the prisoner will receive credit for time served
while in the custody of the receiving State. This is consistent
with United States practice in these matters.
The article does not provide for any specific ``safe
conduct'' for prisoners 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 transfer without safe
conduct, and the requesting State is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to travel.
Article 12--Location or Identification of Persons or Items
This Article provides that the Requesting State may seek to
ascertain the identity or whereabouts in the Requested State of
persons (such as witnesses, potential defendants, or experts)
or items. This is a standard provision contained in all U.S.
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 a person or item is limited to
persons or items which are or may be in the territory of the
Requested State. Thus, neither the United States nor Egypt
would 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 part of the
Requested State to use its best efforts to effect the service
of documents such as summonses, complaints, subpoenas, or other
legal papers relating in whole or in part to a Treaty request.
Identical provisions appear in most U.S. mutual legal
assistance treaties.\20\
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\20\ U.S.-Lithuania Mutual Assistance Treaty, signed at Washington
January 16, 1998, entered into force August 26, 1999, art. 13.
---------------------------------------------------------------------------
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 Egypt to follow a specified
procedure for service), or by the United States Marshal's
Service in instances where personal service is requested.
Paragraph 2 provides that where the documents to be served
call for the appearance of a person in the Requesting State,
the document must 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.
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 State 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 a request
and is similar to provisions in many other United States mutual
legal assistance treaties.\22\
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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 Feb. 24).
\22\ See, e.g., U.S.-Latvia Mutual Assistance Treaty, signed at
Washington June 13, 1997, entered into force September 17, 1999, art.
15.
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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 Egypt will have to be supported by
probable cause for the search. A United States request to Egypt
would have to satisfy the corresponding evidentiary standard
there. The Egyptian delegation indicated that, under Egyptian
law, an order issued by either the Egyptian court or the
general prosecutor, depending on the case, is needed before a
search can be performed; a court order is needed where the
rights of private, third parties (who are not targets of the
investigation) are involved.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered under the Treaty.
This provision requires that, upon request, every official in
the Requested State who has had custody of a seized item shall
certify the identity, continuity of custody, and changes in
condition, using Form E appended to the Treaty.
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
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.
Article 15--Return of Items
This procedural article provides that, if requested, any
documents or items of evidence furnished under the Treaty must
be returned to the Requested State as soon as possible. This
requirement applies 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
require return, but this is a matter best left to development
of practice.
Article 16--Assistance in Seizure and Forfeiture Proceedings
Article 16 is similar to Article 16 of the U.S.-Barbados
Mutual Legal Assistance Treaty and Article 17 of the U.S.-
Latvia Mutual Legal Assistance Treaty. The first paragraph
authorizes the Central Authority of one Party 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 which either were used in
the crime or 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 Egypt, they could be seized 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 kidnaping, robbery,
extortion, or 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.\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.
---------------------------------------------------------------------------
\23\ This statute makes it an offense to transpoprt money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad. Proceeds of such
activity become subject to forfeiture pursuant to Title 18, United
States Code, Section 981 by way of Title 18, United States Code,
Section 1956 and Title 18, United States Code, Section 1961. The
forfeiture statute applies.
\24\ 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 would be punishable by
death or imprisonment for a term exceeding one year and which
would be punishable under the laws of the United States by
imprisonment for a term exceeding one year if such act or
activity constituting the offense against the foreign nation
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 legislation of this kind in the battle against
narcotics trafficking. \25\ The U.S. delegation expects that
Article 16 of the Treaty will enable this legislation to be
even more effective.
---------------------------------------------------------------------------
\25\ Article 5 of the United Nations Draft Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which
calls for the state parties to enact broad legislation to forfeit
illicit drug proceeds and to assist one another in such matters. United
Nations Draft Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, with annex and final act, done at Vienna,
Decmeber 20, 1988.
---------------------------------------------------------------------------
The second paragraph of Article 16 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. However, the
language of the article is carefully selected so as not to
require either State to take any action that would exceed its
internal legal authority. It does not, for instance, mandate
institution of forfeiture proceedings or initiation of
temporary immobilization in either country against property
identified by the other if the relevant prosecuting authorities
do not deem it proper to do so.
The Egyptian delegation stated that its courts have the
authority to enforce restitution orders and fines of foreign
courts, as well as to freeze or restrain assets pursuant to a
future foreign order of forfeiture. However, the delegation
stated that assets may be forfeited only upon a criminal
conviction, and Egyptian courts do not have the authority to
order the final forfeiture of assets pursuant to a foreign
order in the absence of an international agreement to that
effect. The Egyptian delegation indicated that the Government
of Egypt may freeze, or seize or restrain, assets on our
behalf. However, it can forfeit assets only upon a criminal
conviction, and Egyptian courts do not have the authority to
enforce forfeiture orders of foreign courts.\26\ It should be
noted that, although frozen assets cannot be forfeited to the
U.S. government, such assets can be transferred to victims as
part of restitution or paid to the U.S. government pursuant to
fines imposed on the defendant.
---------------------------------------------------------------------------
\26\ The Egyptian delegation indicated that a separate treaty
providing for the recognition of foreign judgments would be needed.
---------------------------------------------------------------------------
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 will generally reflect 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\
Article 16(3) is consistent with this framework, and will
enable the transfer of forfeited assets, or the proceeds of the
sale of such assets, to the other Party to the extent permitted
by the respective laws of the Parties.
---------------------------------------------------------------------------
\27\ 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 agreement between the two countries.
It also provides that the Treaty shall not be deemed to prevent
recourse to any assistance available under the internal laws of
either country. Finally, Article 17 preserves the ability of
each to provide assistance pursuant to any bilateral
arrangement, agreement or practice that may be applicable.
Thus, the Treaty leaves the provisions of United States and
Egyptian law on letters rogatory completely undisturbed, and
does not alter any pre-existing agreements concerning
investigative assistance.\28\
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\28\ See, e.g., the U.S.-Egypt Agreement on Procedures for Mutual
Assistance in connection with Matters Relating to the Westinghouse
Electric Corporation, signed at Washington November 19, 1978, entered
into force November 29, 1978 (30 UST 3996; TIAS 9441; 1169 UNTS 328),
and related agreements; U.S.-Egypt Agreement on Procedures for Mutual
Assistance in Connection with Matters Relating to the General Electric
Company, signed at Washington September 17, 1993, entered into force
September 17, 1993, as amended November 18, 1994; U.S.-Egypt
Arrangement for the Direct Exchange of Certain Information Regarding
the Traffic in Narcotic Drugs, entered into force August 26, 1930 (11
Bevans 1331); and the Agreement Regarding the Transfer of Forfeited
Assets, signed at Cairo May 20, 1993, entered ito force May 20, 1993.
---------------------------------------------------------------------------
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 calls upon the
Parties to 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. It is anticipated that
consultations will be held on a regular basis.
Article 19--Ratification, Entry Into Force, and Termination
Paragraph 1 provides that the Treaty and its Appendices are
subject to ratification and that the instruments of
ratification shall be exchanged as soon as possible.
Paragraph 2 provides that the Treaty shall enter into force
immediately upon the exchange of instruments of ratification.
Paragraph 3 states 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 many recent United States' mutual legal
assistance treaties.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination will take
effect six months after receipt of written notification.
Similar requirements are contained in mutual legal assistance
treaties with other countries.
------
Technical Analysis of the Treaty Between the United States of America
and France on Mutual Legal Assistance in Criminal Matters
On December 10, 1998, the United States signed a Treaty on
Mutual Legal Assistance in Criminal Matters Between the United
States of America and France (``the Treaty''). In recent years,
the United States has signed similar treaties with a number of
countries as part of a program 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, international drug trafficking, and
other offenses.
It is anticipated that the Treaty will be implemented in
the United States largely pursuant to the procedural framework
provided by Title 28, United States Code, Section 1782. France
has a new law, effective June 23, 1999, specifically governing
foreign assistance.
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
history. 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
Throughout the Treaty, the negotiators relied heavily on
wording in provisions of France's mutual legal assistance
treaties with Australia and Canada to bridge differences in the
U.S. and French systems. That reliance is evident in the first
paragraph of the first article, which provides for assistance
in investigations or proceedings in respect of criminal
offenses the punishment of which, at the time of the request
for assistance, is a matter for the judicial authorities of the
Requesting State.
By this language the negotiators did not intend that an
offense with respect to which assistance is sought be pending
before a court; they did intend that the offense entail the
possibility of punishment (i.e., penal sanctions) that would be
a matter for a court and not for an administrative body. The
Treaty is not intended to provide assistance for administrative
or regulatory matters, except as provided otherwise in the
Treaty, e.g., Article 11.
For France, jurisdiction to conduct investigations lies
with its judicial authorities. Because the United States does
not rely on judicial authorities to conduct criminal
investigations, the negotiators specifically agreed that the
phrase includes, for the United States, grand jury proceedings
and investigations undertaken by ``competent authorities.\1\
Then, to clarify this point, the negotiators, at Article 3,
defined ``competent authorities.''
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\1\ The requirement that assistance be provided under the Treaty 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 or not to file criminal
charges.
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The negotiators intended that the phrase ``proceedings in
respect of criminal offenses'' cover proceedings not strictly
criminal in nature. For example, Article 11 specifically
provides for assistance with respect to proceedings to forfeit
the proceeds of illegal drug trafficking, which may be civil in
nature.\2\
---------------------------------------------------------------------------
\2\ See, Title 21, United States Code, Section 881; Title 18,
United States Code, Section 1964.
---------------------------------------------------------------------------
Paragraph 2 excludes from coverage of this Treaty military
offenses that are not otherwise offenses under ordinary
criminal law and specified types of procedures regarding
offenses (i.e., execution of requests for provisional arrest
and extradition; enforcement of judgments except as provided at
Article 11).
Paragraph 3 is based on a notion that is standard in U.S.
mutual legal assistance treaties, but differently worded in
this Treaty. Generally, such treaties are intended solely for
government-to-government mutual legal assistance
cooperation.\3\ This Treaty does not change that proposition.
The Treaty is not intended to provide to private persons in
either State a means of evidence gathering. Private litigants
in the United States or France may continue to obtain evidence
from the other State by letters rogatory, an avenue of
international assistance that the Treaty leaves undisturbed.
Additionally, for the United States, 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. Because the situation in France was
clearly different on this point (i.e., France considered that
the Treaty might create a private right of action to contest,
for example, the procedure used to execute a request as
improper implementation of the Treaty), the negotiators agreed
on the formulation set forth in this paragraph and, to ensure
that the U.S. position that the Treaty creates no private
rights of action was unaltered, further agreed to an
explanatory note. Both delegations intended and understood that
the explanatory note would be an integral part of the Treaty.
See Explanatory Note on the Treaty, Article 1(3).
---------------------------------------------------------------------------
\3\ See, e.g., United States v. Johnpoll, 739 F.2d 702 (2d Cir.
1984), cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Assistance under the Treaty requires no 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) with one
exception, set forth in Article 11(3), relating to
immobilization of proceeds of offenses. Most U.S. mutual legal
assistance treaties have no requirement for dual criminality.
For France, the critical question is whether the request is
made on behalf of a competent authority as defined in Article
3.
Article 2--Central Authorities
Paragraph 1 requires that each State designate a Central
Authority to make and receive requests under the Treaty. 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.\4\ The Ministry of Justice is the Central Authority
for France. The Central Authority of the United States would
make all requests to France on behalf of federal agencies,
state agencies, and local law enforcement authorities in the
United States. The Central Authority of France would make all
requests emanating from officials in France. 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 proper agency, court or other authority
(which, in the United States, may be federal or state) for
execution, and ensuring that a timely response is made.
---------------------------------------------------------------------------
\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).
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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,
facsimile, or any other means, at the option of the Central
Authorities themselves.
Paragraph 2 provides for consultations between the Central
Authorities for the purpose of implementing the Treaty. The
delegations anticipated that the Central Authorities would
agree upon such practical measures as they deemed to be
necessary to facilitate the implementation of the Treaty. The
French delegation particularly noted that the procedures to be
made available to the United States pursuant to Article 9 were
substantially different from normal French procedures and the
provision for consultations should help ensure that the
provision was properly implemented in France.
Paragraph 3 requires the Central Authorities to keep each
other informed of the status of execution of requests. The
negotiators expected that the Central Authorities would
maintain open lines of communication that would encompass all
aspects of the execution of requests.
Article 3--Competent Authorities
This article describes the authorities upon whose behalf
the Central Authorities of each State will make requests. For
France, the competent authorities are judicial authorities,
including public prosecutors. For the United States, the
competent authorities are prosecutors and authorities with
statutory or regulatory responsibility for investigations of
criminal offenses, including the referral of matters to
prosecutors for criminal prosecution.
The delegations agreed to include a sample listing of U.S.
competent authorities in the Explanatory Note on the Treaty
because the U.S. system vests jurisdiction to investigate
criminal offenses in numerous federal and state agencies and
authorities. See Explanatory Note on the Treaty, Article 3.
However, because the list was illustrative only, and not
intended to be exhaustive, the delegations agreed that a
request made by the Central Authority of the United States on
behalf of a ``competent'' authority would be sufficient to
establish the credentials of the authority as a ``competent
authority.''
Article 4--Contents of Requests
Paragraph 1 specifies that requests must be in writing. The
paragraph then identifies seven categories of information that
must be included in each request.
Paragraph 2 allows the Requesting Party to indicate a time
by which the assistance should be provided.
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.
Article 5--Transmission of Requests
This article specifies that the channel for transmitting
requests and the results from execution of requests shall be
directly between Central Authorities. The provision allows two
variants for both sending requests and receiving results: (1)
in urgent situations, the transmitting Central Authority may
transmit an advance copy of the request by any means, including
via the Interpol channel and (2) the Central Authorities may
agree to the transmittal of results from execution through a
different channel than the Central Authority to Central
Authority channel.
Article 6--Denial of Assistance
This article specifies the limited classes of situations in
which assistance may be denied under the Treaty, in addition to
those excluded under Article 1(2). The negotiators understood
that, for the United States, decisions concerning denial of
assistance would be made by the executive (i.e., the Central
Authority for the United States). Although for France the
executive likewise makes such decisions, its judiciary will
also be able to render an independent decision regarding the
propriety of providing assistance which, if the Central
Authority for France disagrees, it may appeal to a higher
court.
Paragraph (1)(a) permits the Requested State to decline to
execute a request if the request relates to an offense that the
Requested State considers to be a political offense (e.g.,
espionage, treason and other actions recognized as political
offenses under the jurisprudence developed in extradition
cases) or related to a political offense (i.e., ordinary
criminal acts committed for political reasons). In practice,
France seldom denies requests on the basis that the offense
(e.g., bank robbery) has political underpinnings. Moreover, to
the extent that political underpinnings exist, France relies on
proportionality to determine whether to consider the matter to
be related to a political offense, with the notion that
violence negates ideology.
Paragraph (1)(b) permits the Requested State to decline to
execute a request if to do so would prejudice the
``sovereignty, security, public order, or other essential
interests'' of that State. All U.S. mutual legal assistance
treaties contain provisions allowing the Requested State to
deny execution of a request if execution would prejudice its
essential interests.
The negotiators agreed that ``sovereignty'' or ``security''
as a basis for denying assistance includes the notion that
providing assistance would disclose information otherwise
classified for national security reasons. It is anticipated
that the U.S. Department of Justice, as Central Authority for
the United States, would work closely with the Department of
State and other U.S. government agencies to determine whether
to execute a request that might fall in this category.
The negotiators further agreed that the term ``public
order,'' while similar in consequence to sovereignty or
security, means a ``judicial'' public order (i.e., principles
of the state that cannot be violated). In the same vein, the
phrase ``other essential interests'' was intended to cover
similar equally serious interests of the Requested State. Such
interests are not implicated where providing assistance, for
example, causes political or public embarrassment, and the
discretion to deny assistance would be improperly exercised for
that reason. 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 that
occurred in the Requested State and is constitutionally
protected in that State.
However, ``essential interests'' could also 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 U.S. Central Authority may invoke paragraph 1(b) to decline
to provide information pursuant to a request under this Treaty
if 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 a felony, including facilitation of
the production or distribution of illegal drugs.\5\
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\5\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See,
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy
Assistant Attorney General, Criminal Division, United States Department
of Justice).
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The negotiators understood that, inasmuch as the
controlling principle under the Treaty is the obligation of the
Parties to provide assistance to each other, the exceptions are
to be narrowly interpreted and used only if necessary.
Moreover, to the extent that execution of a portion of a
request warrants denial based upon its impact on sovereignty,
security, public order, or other essential interests, the
unaffected portion of the request is to be executed.
Because the purpose of the Treaty is to provide assistance
whenever possible, paragraph 2 obliges the Requested State to
consider imposing appropriate conditions on its assistance in
lieu of denying execution of a request outright pursuant to
paragraph 1. For example, a 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 prosecution
involving a political offense (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. The Requested State would notify
the Requesting State of any proposed conditions before actually
delivering the evidence in question, thereby giving the
Requesting State a chance to indicate whether it is willing to
accept the evidence subject to the conditions. If the
Requesting State accepts the evidence subject to the
conditions, it must honor the conditions.
Paragraph 3 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the reasons for a denial of assistance.
This ensures, first, that the Requesting State is always aware
that a particular request has been denied and, second, is in a
better position to make requests thereafter. To the extent that
a request is only partly denied, the Requested State's
explanation for not providing complete execution should also
avoid misunderstandings.
Article 7--Postponing Execution
Article 7 recognizes that prompt execution of a request
could be difficult or impossible where such execution would
``interfere with an ongoing criminal investigation or
proceeding'' in the Requested State. In that situation, it may,
after consultation between the Central Authorities, postpone
execution, including transmission, or make execution subject to
conditions needed to prevent interference with the Requested
State's investigation or proceeding. If the Requesting State
accepts the assistance subject to conditions, it must comply
with them. The reference to postponing transmission reflects
the negotiators'' understanding that the Central Authority of
the Requested State may, in its discretion, take such
preliminary action as deemed advisable to obtain or preserve
evidence, for later transmission, that might otherwise be lost
before the conclusion of the investigation or legal proceedings
in that State.
Article 8--Execution of Requests
Paragraph 1 provides that ``[r]equests shall be executed in
accordance with the provisions of this Treaty and the laws of
the Requested State.'' Thus, neither State is expected to take
any action in execution of a request that would be expressly
prohibited under its domestic 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.
Paragraph 2 outlines the obligations of the Requested
State's authorities in executing requests from the Requesting
State. The negotiators intended that the Central Authority of
the Requested State would initiate the execution of requests.
Upon receiving a request, that Central Authority will first
review it and 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 satisfies the Treaty's
requirements, paragraph 2 holds the Central Authority
responsible for making ``all necessary arrangements'' to place
the request before the proper agency, court, or other authority
for execution (and ensuring that a timely response is made).
When the United States is the Requested State, the Central
Authority will transmit most requests to federal investigators,
prosecutors, or judicial officials for execution.
Sentence 2 of paragraph 2 both authorizes and requires
administrative and judicial authorities to ``use all necessary
measures available under the laws of the Requested State'' to
execute a request. For the United States, this empowers its
courts to do everything within their power to execute the
request, including issuing subpoenas, search warrants or other
orders necessary to execute the request. It also 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. This provision is not intended or
understood to authorize United States authorities to use the
grand jury for the collection of evidence pursuant to a request
from France. Rather, when execution of a request from France
requires the use of compulsory process, the U.S. Department of
Justice will use the mechanism of Title 28, United States Code,
Section 1782 and the provisions of the Treaty, to present the
request to a federal court in order to secure the necessary
process. The court shall then order ``any form of assistance,
not prohibited'' by U.S. law. This includes the issuance of
subpoenas, search warrants, and such other orders as are
``necessary or useful'' for execution of the request. For
example, when France seeks the testimony or evidence of a
witness located in the United States, a U.S. court will
normally fulfill its Treaty responsibility by appointing a
commissioner pursuant to Title 28, United States Code, Section
1782 and authorizing that commissioner to issue a
commissioner's subpoena to compel the witness to appear and
testify and produce such documents, records, and items as
France has requested. The language of this sentence reflects
the understanding of the Parties that each intends to provide
the other with every form of assistance available to the
judicial and executive branches of government in the execution
of requests.
Paragraph 3 authorizes a person ``giving testimony or
evidence'' to assert any claim of immunity, incapacity, or
privilege available under the laws of the Requested State. Such
claim will be resolved in the Requested State and the person
will be required (or not) to give testimony or evidence
accordingly. On the other hand, if the person seeks to assert a
claim available under the laws of the Requesting State, the
person will be required to give the testimony or evidence and
the claim will be recorded for the record, where it will be
preserved for resolution by the authorities of the Requesting
State in accordance with the law of that State. 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 it are best
understood.
The paragraph does provide for consultation between the
Central Authorities where a witness gives advance notice of
intention to assert a claim under the laws of the Requesting
State. This may provide an alternative to the Central Authority
of the Requested State by providing an opportunity in advance
to ascertain the viability of the claim and then act
accordingly in lieu of simply compelling a witness to give
testimony or evidence where the witness raises a claim under
the laws of the Requesting State.
Paragraph 3 is similar to provisions found in numerous
other U.S. mutual legal assistance treaties.\6\ It ensures that
no person will be compelled to furnish testimony 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 France may invoke any testimonial privilege
(e.g., attorney client, husband-wife) available in the United
States, including the constitutional privilege against self-
incrimination, to the extent that it might apply in the context
of evidence being taken for the French proceeding. Conversely,
a witness testifying in France pursuant to a U.S. request may
raise any of the privileges available under the laws of France.
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\6\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, signed
at Bridgetown February 28, 1996, and entered into force March 3, 2000,
art. 8(4).
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Paragraph 4 specifies that a person who gives false
testimony or evidence in the execution of a request in the
Requested State shall be subject to prosecution or punishment
in that State in accordance with its laws. The provision does
not require that the person giving false testimony or evidence
be prosecuted in the Requested State; it merely clarifies that
the person may be subject to such prosecution. The provision
also does not affect the ability of the Requesting State to
prosecute in accordance with its laws. Both the United States
and France have laws that subject a person providing false
testimony or evidence in the execution of a treaty request to
criminal sanction.
Article 9--Specific Procedures
This article--particularly paragraphs 1 and 2--represents
the solution to the most intractable problem facing the
negotiators: providing a reliable Treaty mechanism that would
enable the United States routinely to secure testimony in
France, which testimony would thereafter be usable in a
criminal proceeding in the United States. Because the two
countries' systems are so procedurally different in regard to
taking and preserving testimony, finding a meeting point was
difficult, and the negotiators recognized that a perfect
solution was impossible. However, the negotiators intended, and
were confident that the text of this article permits, the
taking of testimony in France in a manner that, in all but the
rarest of situations, will produce testimony usable in a U.S.
criminal proceeding.
Paragraph 1, sentence 1, provides that, if requested, the
Requested State shall inform the Requesting State of the dates
and places of execution of a request.
Paragraph 1, sentence 2, provides that ``authorities and
persons designated by the Requesting State may be permitted to
be present, and may assist in,'' executing the request ``if the
Requested State consents.'' The Central Authority for France,
together with the French judicial authority (i.e., an examining
magistrate) taking the testimony, will normally make the
critical determination regarding consent. Although the element
of consent creates some uncertainty for the United States with
respect to the presence of relevant parties at the taking of
testimony, the subsequent sentence requires consent with
respect to depositions, with limited exceptions: France ``shall
permit such designated authorities and persons to be present at
and assist in the taking of depositions . . . subject to, in
particular, the application of Articles 6 [Denial of
Assistance] and 7 [Postponing Execution].'' Referencing these
articles demonstrates the narrow grounds on which the parties
anticipated consent for participation in depositions might be
denied since such denial or postponement is otherwise available
independent of Article 9 and, thus, the provision institutes no
new standard for consent. Moreover, that the negotiators
intended for consent to be given for most depositions is
explicitly stated in the explanatory note:
The scope of this commitment [to accommodate requests for
depositions in compliance with U.S. internal procedure],
however, may be limited, notably by the application of Articles
6 and 7 relating respectively to the denial of requests for
legal assistance and to postponement of execution of such
requests. This commitment does not preclude that, in certain
cases, which in practice shall be most exceptional, the
authority entrusted with the execution of the request may
determine that the presence and assistance of the designated
persons are not possible within a specific case. [Emphasis
added.]
See Explanatory Note on the Treaty, Article 9.
Paragraph 2, sentence 1, specifies that the procedures
subsequently listed shall be ``carried out insofar as they are
not contrary to the fundamental principles of a judicial
proceeding in the Requested State.'' The reference to
``fundamental principles'' was considered imperative by the
French delegation because the procedures subsequently outlined
are novel from the French perspective. Nonetheless, the French
delegation believed that none were in fact incompatible with
French fundamental principles of a judicial proceeding. To
reach a different conclusion would render France unable to
provide any mutual legal assistance to the United States.
Paragraph 2 continues in sentence 2 to list procedures that
the Requested State ``shall'' provide to the Requesting State.
Several of these procedures, especially as the negotiators
contemplated and intended that they be implemented, are foreign
to French practice and procedure. Subparagraph (a) provides for
the taking of testimony from witnesses ``under oath'' and
contemplates questioning, not under oath, of targets and
defendants. Subparagraph (b) provides for ``confrontation''
between witnesses and defendants during depositions (or
videoconferencing). Confrontation includes the possibility of
defendants presenting questions to be asked of witnesses.
Subparagraph (c) provides the same possibility for the
Requesting States' authorities present during, for example, the
confrontation. Subparagraph (d) provides for the creation of a
record or recording of, for example, the confrontation.
Subparagraph (e) allows for a verbatim transcript. For the
purposes of creating a record or verbatim transcript, the
Requesting State may request the presence of persons who are
technicians (e.g., court reporters or stenographers, video
technicians). The costs for the services of technicians is
covered in Article 23.
Because extant French procedures in the area of taking
testimony are different from U.S. procedures and the legal
implications of procedures currently being utilized in other
jurisdictions are untested in France, the negotiators
anticipated the need for substantial consultation to implement
this article. See discussion under Article 2, paragraph 2,
supra.
Paragraph 3 provides, that upon request, the Requested
State shall provide original documents or records, if possible.
The negotiators intended that the Requested State would make
every reasonable effort to comply with such a request. However,
the Requested State normally will provide true copies of the
documents or records.
Paragraph 4 deals with evidentiary foundation requirements
for business records. The negotiators discussed the fact that
business records produced pursuant to this Treaty in the
Requested State must be admissible in proceedings in the courts
of the Requesting State for the Treaty to serve its intended
purpose. To address this evidentiary need, the negotiators
agreed that, upon request, the Requested State will secure
either a certificate (such as Form A appended to the Treaty) or
a proces-verbal (containing the same essential information as
is contained in Form A) to accompany the business records. The
contents of Form A are consistent with and meet the
requirements of Title 18, United States Code, Section 3505.
Consequently, foreign business records produced and accompanied
by a certificate or proces-verbal produced in compliance with
the Treaty are admissible in a criminal proceeding in the
United States as evidence. While such evidence is admissible,
the judicial authority presiding over the U.S. trial must
determine whether the evidence, in fact, should be admitted.
The negotiators intended that evidentiary tests such as
relevance and materiality would still have to be satisfied in
each case.
Article 10--Search and Seizure
Because the purpose of a mutual legal assistance treaty is
to enable each treaty partner to use mechanisms available under
its domestic laws to provide assistance to the treaty partner,
most U.S. mutual legal assistance treaties contain a provision
authorizing the use of search warrants to execute requests.\7\
This Treaty is no exception. Thus, this article provides a
framework pursuant to which U.S. courts may issue search
warrants in execution of French requests.
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\7\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 15(3).
---------------------------------------------------------------------------
Paragraph 1 provides that the Requested State ``shall
execute a request for search, seizure, and delivery of items''
to the Requesting State if the request includes ``information
justifying such search under the laws of the Requested State.''
This means that a French request to the United States must be
supported by a showing of probable cause for the search.
Likewise, a U.S. request to France would have to satisfy the
corresponding evidentiary standard there.
Paragraph 2 is designed to produce a record of the chain of
custody of items seized and delivered up under the Treaty. This
provision requires that, upon request, a competent authority
certify the (1) identity of the item seized, (2) identity of
every official who had custody of the item, and (3) the
circumstances (i.e., continuity) of its custody. The competent
authority is further required to certify any additional change
in custody or in condition of the item seized. If properly
prepared, the certificate or certificates from the competent
authority in the Requested State ``shall be admissible in
evidence in the Requesting State as proof'' of chain of custody
and integrity of condition of an item seized pursuant to a
request. While the certificates will be ``admissible'' without
additional authentication, the trier of fact is free to bar use
of the evidence itself, in spite of the certificates, if some
reason to do so exists other than authenticity or chain of
custody.
Article 11--Proceeds of Offenses
A major goal of the Treaty is to enhance the efforts of
both the United States and France in combating narcotics
trafficking. One aspect of this effort is action by authorities
of both Treaty partners to seize and confiscate money,
property, and other proceeds of drug trafficking.
Paragraph 1 obligates the Parties to assist one another in
``proceedings related to the forfeiture of proceeds or
instrumentalities of criminal offenses.'' Such assistance may
include locating assets (see paragraph 2), immobilizing assets
(see paragraph 3), or executing forfeiture judgments (see
paragraph 4).\8\
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\8\ The paragraph does not obligate the States to initiate
forfeiture proceedings. Nonetheless, if the assets are the proceeds of
drug trafficking, 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. 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, December 20, 1988.
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Paragraph 2 requires the Parties to assist each other, in
accordance with their respective laws, in locating and
identifying proceeds and instrumentalities of offenses that are
believed to be located in the Requested State. The Requesting
State must articulate a basis for believing that the assets
being sought are located in the Requested State.
Paragraph 3 allows each State, in an exercise of its
discretion, to assist the other, to the extent permitted by its
laws, by immobilizing proceeds and instrumentalities where the
request for immobilization contains ``facts that would
constitute an offense under the laws of both States.'' This
provision is the exception to the general principle in the
Treaty that each State shall provide assistance to the other
without regard to whether the matter for which assistance is
requested is a criminal matter in the Requested State. As
suggested by the text, the purpose of immobilization is to
protect the asset against dissipation and ensure its
availability for forfeiture (or restitution). For instance, if
the assets obtained by fraud in France are located in the
United States, U.S. authorities could act to seize them under
Title 18, United States Code, Section 981 in aid of a
prosecution under Title 18, United States Code, Section
2314.\9\ U.S. authorities could also seek to secure a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner. Proceeds of a foreign
kidnaping, 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.\10\ 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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\9\ 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. Proceeds of such
activity become subject to forfeiture pursuant to Title 18, United
States Code, Section 981 by way of Title 18, United States Code,
Section 1956 and Title 18, United States Code, Section 1961. The
forfeiture statute applies to property involved in transactions in
violation of section 1956, which covers any activity constituting an
offense defined by section 1961(1), which includes, among others, Title
18, United States Code, Section 2314.
\10\ Title 18, United States Code, Section 1956(c)(7)(B).
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Paragraph 4 authorizes each State, in an exercise of its
discretion, to execute final forfeiture judgments of the other
State in accordance with the laws of the Requested State.
Paragraph 5 further authorizes a State that executes a
final forfeiture decision to dispose of the forfeited asset
``in accordance with its laws.'' One possible disposition
specifically envisioned by the negotiators is to share
forfeited assets with the treaty partner.\11\
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\11\ U.S. 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. See, Title 18,
United States Code, Section 981(i)(1). Paragraph 5 is consistent with
this framework and will enable a State having custody over proceeds or
instrumentalities of offenses to transfer forfeited assets, or the
proceeds of the sale of such assets, to the other State, at the
former's discretion and to the extent permitted by their respective
laws.
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Article 12--Return of Evidence
Paragraph 1 provides that any evidence furnished pursuant
to the Treaty ``shall be retained by the Requesting State
unless the Requested State asks at the time of transmission for
its return.'' The negotiators believed that this practice was
the most effective way to deal with the evidence provided, most
of which would consist of true copies of documents that the
Requested State would not require to be returned.
Paragraph 2 provides a Treaty basis for the Requested State
to protect the interests of third parties in an item
transmitted to the Requesting State. The Requesting States, in
order to receive such item, would be required to agree to terms
and conditions necessary to either care for the item or secure
third party interests in the item to be transferred. This
article is similar to provisions in other U.S. mutual legal
assistance treaties.\12\
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\12\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 15(3).
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Article 13--Restitution
This article commits the Parties to assist each other to
the extent permitted by their respective laws to ``facilitate
restitution.'' The negotiators agreed, first, that the assets
to which the restitution article will apply are assets
wrongfully taken from a victim (e.g., stolen property) and not
the damages that a court could award for injury or the like
caused by an offense. Second, the obligation to facilitate
contemplated by this article does not include an obligation to
pursue litigation on behalf of the other State to recover the
assets. The Requested State may be able, in accordance with its
laws, to immobilize assets. However, the Requesting State or
the victims then have the obligation to pursue recovery.
Article 14--Confidentiality
Paragraph 1 anticipates the situation in which the
Requesting State provides information in its request that is
either sensitive to the investigation or proceeding in the
Requesting State, or protected against disclosure by domestic
laws in the Requesting State, or both. For example, in order
for the United States to provide ``a description of the nature
of the investigation or proceeding, including the facts on
which the request is based,'' as required by Article 4(1)(b) of
the Treaty, the request may disclose information protected by
Rule 6(e), Federal Rules of Criminal Procedure. This paragraph
enables the United States to formally ask France to use ``best
efforts'' to keep the information in the request confidential.
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 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.
Whereas paragraph 1 concerns information provided by the
Requesting State in its request, paragraph 2 concerns
information provided by the Requested State in response to a
request.
This paragraph envisions a situation where the Requested
State has information to provide in execution of a request, but
considers that information to be sensitive and would prefer to
limit its disclosure. Because no basis for denial under Article
6 exists, the Requested State cannot justifiably impose
confidentiality restrictions as a precondition to production.
However, this paragraph allows the Requested State to formally
request that the Requesting State honor certain confidentiality
restrictions. 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.
Article 4(1)(b) requires that the Requesting State specify
``the purpose for which the assistance is sought'' in its
request. Paragraph 3 of this article provides the Central
Authority of the Requested State with the discretion to require
that the Requesting State use the executed results provided
under the Treaty only for the purpose specified in the request
without the prior consent of the Requested State. Where the
Central Authority of the Requested State imposes a subsequent
use limitation, the Requesting State must comply with such a
condition.
To the extent that France does impose a subsequent use
limitation on assistance provided, that assistance would become
unavailable for disclosure pursuant to the Freedom of
Information Act. A FOIA disclosure would constitute a
disclosure for a purpose other than that for which the
assistance was requested.
It should be noted that under Article 1(3), the
restrictions outlined in Article 14 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
French authority has used 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.
Paragraph 4 anticipates a situation where confidentiality
restrictions or use limitations conflict with constitutional
obligations. To the extent such a conflict arises, the
constitutional obligation controls. Paragraph 4 provides that
nothing in Article 14 ``shall preclude the use or disclosure of
information or evidence'' in a criminal proceeding to the
extent that there is an obligation to do so, with respect to
the United States, under its Constitution.\13\ For France, this
extends to its Constitution and general principles of its law
having Constitutional value. The State confronted with the need
to make such a disclosure has an obligation ``to the extent
possible'' to notify the other State in advance.
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\13\ See, Brady v. Maryland, 373 U.S. 83 (1963).
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Paragraph 5 states that once assistance provided subject to
conditions imposed pursuant to paragraphs 2 or 3 has been used
for the purpose for which it was provided and, in the course of
such use, has been made public, the Requesting State is
thereafter free to use the assistance for any purpose.
Article 15--Service of Procedural Documents and Judicial Decisions
Paragraph 1 imposes an obligation on the Requested State to
effect service of ``procedural documents and judicial
decisions'' on parties located in that State. Similar
provisions appear in most other U.S. mutual legal assistance
treaties. Items to be served include summons, complaints,
subpoenas, or other legal papers relating in whole or in part
to a Treaty request.
Paragraph 2 describes the method of service. When the
United States is the Requested State, service will be made by
registered mail (in the absence of any request by France to
follow a specified procedure for service) or by the United
States Marshal's Service in instances in which personal service
is requested.
Paragraph 3 provides for the form of proof of service. It
also specifies that, if service cannot be effected, the
Requested State will so notify the Requesting State and specify
the reason.
Paragraph 4 deals with the service of documents that call
for the appearance of a person in the Requesting State. The
documents to be served are to be transmitted to the Central
Authority of the Requesting State 50 days before the date of
the scheduled appearance. Upon request, this requirement may be
waived for persons other than defendants.
Article 16--Appearance in the Requesting State
Paragraph 1 provides a formal mechanism for inviting a
person located in the Requested State to appear elsewhere and
transmitting the person's responses to the Requesting State.
The invitation to appear outside the Requested State may be for
any appropriate purpose under the Treaty. An appearance
pursuant to such an invitation is voluntary and may be refused
by the prospective witness.
Paragraph 2 deals with financial arrangements for the
person's appearance. The request must indicate the approximate
amount of the invited person's travel and subsistence costs
that will be reimbursed. It is assumed that such expenses would
normally include the costs of transportation, as well as room
and board. When the person is to appear in the United States, a
nominal witness fee would also be provided. If the person so
requests, the Requesting State may arrange for monetary
advances to the traveler through the diplomatic or consular
missions in the Requested State.
Paragraph 3 covers the situation where a person fails to
appear in the Requesting State after his appearance in the
Requesting State has been ordered by means of a document served
by authorities of the Requested State pursuant to a request. As
the provision makes clear, the person failing to appear as a
result of service perfected pursuant to a request cannot be
penalized for that failure. The provision does not affect any
applicable penalty imposed for failure to appear where service
was perfected by other than the Treaty route.
Article 17--Safe Conduct
Paragraph 1 provides a guarantee of ``safe conduct'' for a
witness or expert whose appearance is sought in the Requesting
State. Safe conduct means that a person appearing in the
Requesting State pursuant to a request ``shall not be subject
to service of process, prosecuted, detained or subjected to any
other restriction of personal liberty'' in the Requesting State
by reason of any acts or convictions that preceded the person's
departure to travel to that State. It is understood that safe
conduct would not protect a person from prosecution for perjury
or for any other crime committed while in the Requesting State.
Furthermore, the Central Authority of the Requesting State has
discretion to limit the safe conduct, but must notify the
Central Authority of the Requested State and any such
limitation of safe conduct must be communicated to the witness
or expert at the time that person is invited to appear. After
receiving the invitation and notice regarding safe conduct, the
person invited must decide whether to appear in view of the
limited safe conduct.
Paragraph 2 establishes a mechanism whereby a person in the
Requested State who is charged with a criminal offense in the
Requesting State, and is served with notice of that charge, may
voluntarily travel to the Requesting State (1) for the sole
purpose of resolving the matter charged (2) with immunity from
prosecution for acts or convictions that preceded the person's
departure from the Requested State other than those specified
in the document served. The delegations agreed that if the
person is convicted of the matter charged, then he may be
incarcerated for the length of the sentence imposed as a result
of that conviction. However, he may not be incarcerated for
service of any other sentence.
Paragraph 3 states that safe conduct expires if the person
with the guarantee, being ``free to leave,'' has not left
within a period of fifteen consecutive days after receiving
notice that his presence is no longer required, or if the
person leaves the territory of the Requesting State and
thereafter returns to it.
Article 18--Temporary Transfer
Sometimes in the course of a criminal investigation or
proceeding the need arises for assistance from a person in
custody in another country. In some instances, a foreign
country has been willing and able to ``lend'' witnesses to the
U.S. 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 other occasions,
the U.S. Justice Department has arranged for consenting federal
inmates in the United States to be transported to foreign
countries to assist in criminal proceedings.\14\ On a few
occasions, a person in custody in the United States on a
criminal matter has sought permission to travel to another
country to be present at the deposition of a witness whose
testimony may subsequently be introduced into evidence at the
defendant's criminal trial in the United States.\15\ This
article provides a formal mechanism to accomplish these
objectives.
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\14\ For example, in September, 1986, the U.S. Justice Department
and the U.S. 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.
\15\ 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 1 authorizes either State, in an exercise of its
discretion, to temporarily transfer a prisoner to the other
State to ``give testimony or evidence or otherwise provide
assistance'' in a criminal matter.
Paragraph 2 provides that such transfer may be denied for
the following reasons:
(a) the person in custody does not consent;
(b) the person's period of detention might be
extended as a result of the temporary transfer;
(c) the person's presence is required in the sending
State for an ongoing criminal proceeding;
(d) safety or security is a concern, or other
``imperative'' concerns exist.
The negotiators intended that this form of assistance be
readily available if the person in custody consents, but also
understood that the sending State may have an overriding
interest in not permitting the temporary transfer.
Paragraph 3 establishes the obligation and authority of the
receiving State to maintain custody. For the United States,
this is consistent with Title 18, United States Code, Section
3508, which provides for the transfer of witnesses in custody
in other States whose testimony is needed at a federal criminal
trial.
In keeping with the fact that a transfer under this article
is intended to be temporary, Paragraph 4 provides that the
receiving State shall require no proceeding to effect the
return of the person transferred to the sending State. The
return must occur by the date specified by the sending State,
although that period may be extended by agreement between the
States.
Paragraph 5 obligates the sending State to credit the
person temporarily transferred for time served while in the
custody of the receiving State.
Paragraph 6 authorizes safe conduct pursuant to Article 17.
Article 19--Transit
Article 18 of this Treaty and similar articles in other
mutual legal assistance treaties provide for persons in custody
to be moved from State to State for purposes of mutual
assistance. In anticipation of situations in which one State
may need to bring persons in custody through the other on the
way to or from third States, this article provides the legal
framework for such transit.
Paragraph 1 authorizes the Requested State, in an exercise
of discretion, to permit the transit through its territory of a
person in custody whose personal appearance has been requested
to provide assistance in a criminal matter.
Paragraph 2 imposes the obligation on and provides the
authority to the State permitting transit to maintain custody
of the person in custody during transit. The negotiators
anticipated that the normal transit situation would involve a
temporary stop at an international airport to change airplanes.
Article 20--Official Records
Paragraph 1 obliges each State to furnish to the other
copies of publicly available records, including documents or
information in any form, possessed by its executive or judicial
authorities. For the United States, this includes federal,
state and local levels of government.
Paragraph 2 provides that the Requested State may share
with its Treaty partner copies of nonpublic information in
government files. The undertaking under this provision is
discretionary, and such requests may be denied in whole or in
part. Moreover, to the extent that competent authorities in the
Requested State may gain access to such information, the
Requested State will exercise its best efforts to provide the
information only ``to the same extent and under the same
conditions'' to the Requesting State. The Central Authority of
the Requested State, in close consultation with the interested
law enforcement authorities of that State, will determine that
extent and those conditions.
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 negotiators discussed whether this article should serve
as a basis for exchange of information in tax matters. It was
the intention of the U.S. 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 U.S. delegation was
satisfied after discussion that this Treaty, like most U.S.
bilateral mutual legal assistance treaties 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 France under this article in appropriate cases.
Paragraph 3 provides that official records produced
pursuant to this article shall be certified by a competent
authority of the Requested State and that such certification
shall render the records admissible in evidence in the
Requesting State. The negotiators intended that the
certification of official records by French competent
authorities would be consistent with Rule 902(3) and (4) of the
Federal Rules of Evidence and Rule 44, Federal Rules of Civil
Procedure with respect to authentication. As the provision
states, ``no further authentication shall be necessary.'' The
certification that self-authenticates the records is also
intended to meet the requirements of Rule 803(8), Federal Rules
of Evidence, with the result that the records shall be
admissible as ``proof of the truth of the matters set forth
therein.'' Although records properly certified in this manner
shall be ``admissible,'' whether the records are actually
admitted into evidence will remain within the province of the
judicial authority presiding over the proceedings. Evidentiary
requirements, including relevance and materiality, must be
established in each case.
Article 21--Translation
This article requires the Requesting State to provide a
translation of the request and any supporting documents into
the language of the Requested State.
Article 22--Legalization
This article specifies that evidence transmitted pursuant
to this Treaty, in whatever form, shall be ``exempt'' from all
legalization formalities, except as otherwise provided in the
Treaty. The only exceptions are provided at Articles 9(4),
10(2), and 20(3), which the French delegation agreed to include
to meet a major objective of the United States, that is, to
secure evidence in a form admissible in a U.S. proceeding.
Article 23--Costs
Paragraph 1 reflects the general proposition that each
State shall bear expenses incurred within its territory in
executing legal assistance treaty requests for the other State,
with certain exceptions.
Subparagraph (a) requires the Requesting State to pay for
travel and travel-related expenses incurred for witnesses and
experts pursuant to Articles 16 and for persons in custody
pursuant to Articles 18 and 19.
Subparagraph (b) requires the Requesting State to pay for
costs of interpreters and translators. In France, such services
are often furnished by government employees, whereas in the
United States such services are generally retained from private
service providers.
Subparagraph (c) requires the Requesting State to pay for
the costs of services provided by private parties at the
request of the Requesting State. This includes many of the
costs involved in taking depositions (e.g., court reporter,
sound or video technician). As a result of the discussion with
respect to this subparagraph, the negotiators included in the
explanatory note a clarification that, for depositions
requested by France in the United States, (1) the United States
would arrange and pay for audio recordings of testimony, and
(2) the United States would use the procedure set out in the
note for transmitting the audio recording to France in a manner
that would allow the testimony to be used in a French judicial
proceeding. However, to the extent that private service
providers became involved in the execution of a request, France
would pay the costs. See Explanatory Note on the Treaty,
Article 23(1).
Subparagraph (d) requires the Requesting State to pay for
the fees of experts needed to fulfill a request.
Paragraph 2 provides that if it becomes apparent during the
execution of a request that complete execution of a request
would require expenses of an extraordinary nature, then the
Central Authorities shall consult to determine the terms and
conditions under which execution may continue.
Article 24--Initiation of Criminal Proceedings in the Requested State
This article establishes a formal mechanism whereby either
State may refer ``information and evidence relating to criminal
acts'' to the other for prosecutorial consideration by its
competent authorities. The matter must appear to fall within
the jurisdiction of both Parties.
The obligation of the Requested State is only to consider
initiating an investigation or prosecution ``as appropriate
under its laws.''
The Requested State is to inform the Requesting State of
``any action taken'' and, where a proceeding ensues, transmit a
copy of the decision rendered.
Article 25--Entry Into Force
This article specifies that the Treaty shall enter into
force on the first day of the second month after both Parties
have notified each other that the procedures for entry of the
Treaty into force have been completed in each State.
The negotiators agreed that any request presented after
this Treaty enters into force shall be executed pursuant to the
Treaty even if the underlying acts or omissions occurred before
that date.
Article 26--Termination
This article provides that either State may terminate this
Treaty via written notice to the other State through the
diplomatic channel. Termination shall take effect six months
after the date of receipt of written notification. Similar
termination provisions are included in other U.S. mutual legal
assistance treaties.
------
Technical Analysis of the Treaty Between the Government of the United
States of America and the Government of the Hellenic Republic on Mutual
Legal Assistance in Criminal Matters
On May 26, 1999, the United States signed a Treaty Between
the Government of the United States of America and the
Government of the Hellenic Republic 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 authorities in
need of foreign evidence for use in criminal cases.
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\1\ The ``Hellenic Republic'' is hereafter referred to as
``Greece.''
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The Treaty is expected to be a valuable weapon for the
United States in efforts to combat organized crime,
transnational terrorism, international drug trafficking and
other crimes.
It is anticipated that the Treaty will be implemented in
the United States largely pursuant to the procedural framework
provided by Title 28, United States Code, Section 1782. No
implementing legislation will be necessary to bring the Treaty
into force in Greece. Greece will implement the treaty pursuant
to the provisions of its international assistance law found at
articles 458-461 of the Greek Code of Criminal Procedure. For
Greece, the Treaty creates new law and supersedes inconsistent
provisions in domestic legislation.
The following technical analysis 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 history. The technical
analysis includes a discussion of United States 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 related to
criminal matters.'' The negotiators specifically agreed to
provide Treaty assistance at any stage of a criminal matter.
For the United States, this includes cooperation before a crime
is committed, a grand jury investigation, a criminal trial and
related proceedings.\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\ The
Treaty also covers any proceeding, whether labeled civil or
administrative, which may not be criminal in nature but is
``related to criminal matters.'' Thus, the Treaty may be
invoked to provide assistance for 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, a civil forfeiture proceeding
against instrumentalities or proceeds of crime (e.g., drug
trafficking),\4\ or for disgorgement proceedings brought by an
administrative agency (e.g., the Securities and Exchange
Commission) to recover the profits from illegal practices.
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\2\ The requirement that assistance be provided under the Treaty 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 or not to file criminal
charges. This obligation is a reciprocal one; the United States must
assist Greece under the Treaty in connection with investigations prior
to charges being filed in Greece.
\3\ One U.S. 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 at the investigatory
stage, or 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, Title 21, United States Code, Section 881; Title 18,
United States Code, Section 1964.
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Paragraph 2 lists the types of assistance that were
specifically considered by the negotiators. Most of the items
are described in greater detail in subsequent articles. The
list is not exhaustive, as is indicated by the language
``assistance will include'' in the paragraph's opening clause
and is reinforced by the final subparagraph indicating that the
Treaty covers ``any other form of assistance not prohibited by
the laws of the Requested State.''
Paragraph 3 makes it clear that there is no requirement of
dual criminality for cooperation under this Treaty. Thus,
assistance is to be provided even when the criminal matter
under investigation in the Requesting State would not be a
crime in the Requested State. Nevertheless, the negotiators
discussed the offenses for which dual criminality exists and
concluded that it exists for all major U.S. crimes.\5\
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\5\ For example, both the United States and Greece criminalize
terrorism, narcotics offenses, money laundering, fraud, organized
crime, tax violations, securities violations, antitrust violations, and
environmental crimes.
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Paragraph 4 contains a standard provision in U.S. mutual
legal assistance treaties \6\ stating that the Treaty is
intended solely for government-to-government mutual legal
assistance and not intended to provide private persons a means
of evidence gathering or to extend generally to civil matters.
Private litigants in the United States may continue to seek
evidence from Greece by letters rogatory, an avenue of
international assistance that the Treaty leaves undisturbed.
Further, 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).
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Article 2--Central Authority
Paragraph 1 requires that each Party \7\ designate a
``Central Authority'' to implement the provisions of the
Treaty, including making and receiving requests. The Central
Authority of the United States would make all requests to
Greece on behalf of federal agencies, state agencies, and local
law enforcement authorities in the United States. The Central
Authority of Greece would make all requests emanating from
prosecutors and investigating magistrates in Greece.
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\7\ The terms ``Party'' and ``State'' are used interchangeably in
the Treaty and have the same meaning.
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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 proper agency, court, or other
authority (which, in the United States may be federal or state)
for execution, and ensuring that a timely response is made.
Paragraph 2 states that the Central Authority for the
United States is the Attorney General or a person designated by
the Attorney General. 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.\8\ For Greece, the
Ministry of Justice or a person designated by the Minister of
Justice will be the Central Authority.\9\
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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 Attorney 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).
\9\ Under Greek law, the Minister of Justice is responsible for
international legal assistance. Greek Code of Criminal Procedure, art.
458.
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Paragraph 3 provides that the Central Authorities will
communicate directly with each other for the purposes of the
treaty. It is anticipated that such communication will be
accomplished by telephone, facsimile or any other means agreed
to by 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. These
restrictions are similar to those found in other mutual legal
assistance treaties.
Paragraph (1)(a) permits the denial of a request if
execution of the request relates to an offense that is
considered by the Requested State to be a political offense or
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
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 phrase ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the U.S. Department of Justice, as
Central Authority for the United States, will 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 phrase ``similar 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 that occurred in the Requested State and is
constitutionally protected in that State.
``Similar essential interests'' could also 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 U.S. Central Authority may invoke paragraph 1(b) to decline
to provide information pursuant to a request under this Treaty
if 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 a felony, including facilitation of
the production or distribution of illegal drugs.\10\
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\10\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with e.g., Luxembourg, Hong Kong, Poland and Barbados. See
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2nd Sess., 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 a request to be denied 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,\11\ and obligates
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
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 prosecution of a political offense (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. It is
contemplated that the Requested State will notify the
Requesting State of any proposed conditions before actually
delivering the evidence in question, thereby giving the
Requesting State a chance to indicate whether it is willing to
accept the evidence subject to the conditions. If the
Requesting State accepts the evidence subject to the
conditions, it must honor the conditions.
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\11\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27
U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
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Paragraph 3 requires the Central Authority of the Requested
State to 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 the assistance sought. This should avoid misunderstandings
and enable the Requesting State to better prepare future
requests.
Article 4--Form and Contents of Requests
Paragraph 1 requires that Treaty requests be in writing.
This provision is consistent with Greek law, which requires
assistance requests to leave a written trace or imprint. In
cases of urgency, requests may be transmitted by the most rapid
means available, including facsimile or cable, but verbal
requests will not be accepted. Cases of ``urgency'' may
include, for example, an effort to impede the imminent transfer
of illegal proceeds from the Requested State to a third state.
If necessary, the emergency request is to be confirmed within
20 days. A request will be in the language of the Requested
State unless otherwise agreed. This language contemplates the
acceptance of a request in the language of the Requesting State
under some circumstances, for example, in a case of urgency.
Paragraphs 2 and 3 are similar to provisions in other
United States mutual legal assistance treaties specifying the
contents of a request. Paragraph 2 identifies four categories
of information that must be included in each request deemed
crucial to the efficient operation of the Treaty. Paragraph 3
describes eight other categories of information that are
important but not always crucial and therefore must be provided
``[t]o the extent necessary and possible.''
In keeping with the intention of the Parties that requests
pass between the Central Authorities with as little
administrative formality as possible, the Treaty contains no
requirement that a request be legalized or certified.
Article 5--Execution of Requests
Paragraph 1 requires the Parties to promptly 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 competent
authorities to do everything within their 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 Greece.
Rather, it is anticipated that when a request from Greece
requires compulsory process for execution, the U.S. 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 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 specifically
authorizes U.S. courts to use all of their powers to issue
subpoenas and other process to satisfy a request under the
Treaty. It also 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.
Paragraph 2 states that the Central Authority of the
Requested State will make all necessary arrangements for the
execution of a request for assistance on behalf of the
Requesting State. Thus, it is understood that if execution of
the request entails action by a judicial authority 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.
Paragraph 3 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.'' For both the United States and Greece, the Treaty
is intended to be self-executing; no new or additional
legislation will be needed to carry out the obligations
undertaken. In both countries, the Treaty supersedes prior,
inconsistent domestic legislation.
The same paragraph requires that ``[p]rocedures specified
in the request shall be followed except to the extent that
those procedures cannot lawfully be followed by the Requested
State.'' This provision is necessary for two reasons. First,
there are significant differences between the procedures that
must be followed by U.S. and Greek authorities in collecting
evidence in order to assure the admissibility of that evidence
at trial. Second, the evidence in question could be needed for
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. Nevertheless, in instances in
which neither the Treaty nor the request specify a particular
procedure, the Treaty provides that the request shall be
executed pursuant to the procedures and laws applicable to
criminal investigations or proceedings in the Requested State.
Paragraph 4 provides 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. This language does not
contemplate delay as a result of an administrative or civil
proceeding or a closed criminal matter 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 or
destroyed before the conclusion of the investigation or legal
proceedings in that state. The paragraph also permits the
Requested State to provide the assistance to the Requesting
State subject to conditions needed to prevent interference with
the Requested State's investigation or proceedings.
It is anticipated that some U.S. 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, paragraph 5 enables the Requesting State to call
upon the Requested State to use its best efforts 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.
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\12\ This provision is similar to language in other mutual legal
assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal Assistance
Treaty, signed at Washington January 16, 1998, entered into force
August 26, 1999, 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
Central Authority of the Requesting State concerning progress
in execution of its request. This is to encourage open
communication between the Central Authorities in monitoring the
status of specific requests.
Paragraph 7 obligates the Central Authority of the
Requested State to notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
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 U.S. mutual legal assistance treaties.\13\ 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. During the negotiations, it was
discussed and agreed that this provision also obligates the
Requested State to assume the costs of representation. Since
the cost of retaining counsel abroad to present and process
letters rogatory is sometimes quite high, this provision for
reciprocal legal representation is a significant advance in
international legal cooperation between the United States and
Greece. 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.
---------------------------------------------------------------------------
\13\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty,
signed at Washington February 4, 1998, entered into force May 7, 2000,
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 the Requesting State not use
any information or evidence provided under the Treaty in any
investigation, prosecution, or proceeding other than that
described in the request without the prior consent of the
Central Authority of the Requested State. If such a use
limitation is required, the Requesting State must comply with
the requirement. It is noted that Article 4(2)(d) states that
the Requesting State must specify the purpose for which the
information or evidence is sought.
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 permits the Central Authority of the Requested
State to request that specific information or evidence
furnished to the Requesting State be kept confidential or be
used subject to specified conditions. Conditions of
confidentiality would be imposed only when necessary and would
be 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 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 State. This paragraph requires that if the
Requesting State accepts conditions of confidentiality, it
shall 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 that prevent the
Requesting State from using it.
Paragraph 3 provides that Article 7 will not hamper the use
or disclosure in a criminal prosecution of information or
evidence obtained pursuant to the Treaty, to the extent that
there is an obligation to make such disclosure under the
Constitution of the Requesting State.\14\ Nothing in this
Treaty would preclude such disclosure. The paragraph requires
the Requesting State to notify the Requested State prior to
making such use or disclosure.
---------------------------------------------------------------------------
\14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
Paragraph 4 provides that information or evidence made
public in the Requesting State in accordance with paragraph 1
or 2 may, thereafter, be used 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 control the
use of that information by third 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 give statements or
produce items, including documents and 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 states that the Requested State shall permit
the presence of such persons as specified in the request during
the execution of the request and shall allow such persons to
question the person giving testimony or producing evidence.
This provision is the result of extensive discussion and
careful negotiation because it is inconsistent with Greece's
usual practice regarding the taking of witness testimony. The
provision is intended to accommodate the confrontation clause
of the U.S. Constitution's Sixth Amendment and is a standard
provision in other mutual legal assistance treaties. For
Greece, however, this provision is inconsistent with domestic
law and with its other international obligations since Greece
has taken reservations in all other international treaties and
conventions that contain provisions similar to Article 8(3).
This Treaty will supersede inconsistent domestic Greek law and
create new law with regard to Greece's assistance to the United
States. For this reason, and in order to provide guidance to
Greek authorities executing U.S. requests for deposition
testimony in Greece, Article 8(3) provides a list of persons
specifically authorized by law to be present and to question
witnesses.\15\
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\15\ While the list of persons authorized to be present and/or
participate in the taking of testimony describes general categories of
people, the delegations agreed that the Parties would use their best
efforts to limit the number of participants to those persons who are
absolutely indispensable to the proceeding, in an effort to maintain
the decorum of that proceeding.
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Subparagraph 3(a) authorizes the participation of ``two
representatives of the Requesting State.'' This clause would
allow the participation of officials who will represent the
Requesting State, including law enforcement and/or diplomatic
agents.
Subparagraph 3(b) authorizes the participation of ``all
parties to the criminal proceeding that is the basis for the
request.'' The term ``parties'' refers to the defense and the
prosecution and in particular the presence of the defendant in
the taking of deposition testimony.
Subparagraph 3(c) authorizes the participation of the
attorneys for the parties. This includes the attorney(s) for
the defendant and those for the prosecution. Since the
prosecution is also a ``party'' under subparagraph 3(b), this
provision would allow the participation of another prosecution
attorney.
Subparagraph 3(d) authorizes the participation of support
personnel necessary to the proceeding. These include, but are
not limited to, court reporters or other transcribers of the
testimony, interpreters (as many as may be necessary), and
guards (if the defendant is in custody).
Paragraph 4 states that if a witness asserts a claim of
immunity, incapacity, or privilege under the laws of the
Requesting State, the Requested State may take the 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.\15\ It is understood that when a person asserts a
claim of immunity, incapacity, or privilege under the laws of
the Requested State, that claim shall be resolved in accordance
with the law of the Requested State. This is consistent with
Article 5(3) and 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 Greece is guaranteed
the right to invoke any of the testimonial privileges (e.g.,
attorney-client, inter-spousal) 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 Greece may raise any of the similar privileges
available under the law of Greece.
---------------------------------------------------------------------------
\16\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty,
signed at Bridgetown February 28, 1996 and entered into force March 3,
2000, art. 8(4).
\17\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Paragraph 5 contains authentication and certification
requirements for evidence furnished to the United States by
Greece. This paragraph specifies that information or evidence
provided pursuant to Article 8 (business records) shall be
authenticated or certified using Form A. Thus, the provision
establishes a procedure for authenticating business records in
a manner essentially similar to Title 18, United States Code,
Section 3505. The absence or nonexistence of a business record
may be certified on Form B. Paragraph 1(c) states that evidence
authenticated or certified by Forms A or B shall be admissible
in evidence in the Requesting State.\18\
---------------------------------------------------------------------------
\18\ Article 8(5) provides that the evidence authenticated by Form
A or Form B certifying the absence or nonexistence of such records
shall be ``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.
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Article 9--Records of Government Agencies
Paragraph 1 obliges each State to furnish to the other
copies of publicly available records, including documents or
information in any form, 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 disclose such information 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 tax offenses would be
covered by this treaty and concluded that assistance would be
available for such matters. It was the intention of the U.S.
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
where such information would be available to U.S. law
enforcement authorities. The U.S. delegation was satisfied
after discussion that this Treaty, like most other U.S. mutual
legal assistance treaties, is a ``convention for 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 Greece under
this article in appropriate cases.
Paragraph 3 states that, upon request, the records which
are produced pursuant to this article shall be authenticated
under the provisions of the Convention Abolishing the
Requirement of Legalisation for Foreign Public Documents, of
October 5, 1961, (the Hague Convention) or by an official
responsible for maintaining them through the use of Form C
appended to the Treaty. Thus, the Treaty establishes a
procedure for authenticating official foreign documents that is
consistent with Rule 902(3) and (4) of the Federal Rules of
Evidence and Rule 44, Federal Rules of Civil Procedure. The
absence or nonexistence of such records shall, upon request, be
certified by an official responsible for maintaining similar
records through the use of Form D appended to the Treaty. The
paragraph states that no additional authentication will be
necessary and the records authenticated under this paragraph or
Form C, or Form D certifying the absence or nonexistence of
such records, shall be admissible in evidence in the Requesting
State.\19\
---------------------------------------------------------------------------
\19\ Like Article 8(5), the records authenticated and certified
under Article 9(3) are ``admissible'' but the judicial authority
presiding over the trial still must consider other evidentiary tests
(such as relevance and materiality) to determine whether the evidence
should be admitted.
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Article 10--Appearances Outside of the Requested State
Paragraph 1 of this article provides that, upon request,
the Requested State shall invite a person located in its
territory to travel and appear outside the Requested State and
that the Central Authority of the Requested State shall
promptly inform the Central Authority of the Requesting State
of the invitee's response. The intention is to establish a
formal mechanism for inviting, but not compelling, an
appearance outside the Requested State; the invitation may be
refused by the prospective witness. Typically, when the United
States is the Requesting State, it seeks the appearance of a
person in Greece before a grand jury or trial in the United
States, and it is anticipated that the United States will make
such traditional use of this language. However, this text is
written to permit an invitation to appear at any location,
including a location in a third State, to provide assistance
under the treaty.
The Requesting State would be expected to pay the expenses
of such an appearance pursuant to Article 6. Therefore,
paragraph 2 requires that the Requesting State indicate the
extent to which the person's expenses will be paid. It also
permits the person who agrees to appear to request advance
payment of the expenses and allows the Requesting State to pay
such expenses through its embassy or consulate. It is
anticipated 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.
Paragraph 3 protects the individual who appears in the
Requesting State from service of process, detention, or any
restrictions of personal liberty, by reason of any acts or
convictions that preceded the person's departure from the
Requested State. The mandatory safe conduct provision in this
article is consistent with Greek practice and similar language
appears in other U.S. treaties of this kind.\20\ 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 pursuant to this
article or at a later time.
---------------------------------------------------------------------------
\20\ See, e.g., U.S.-Switzerland Mutual Legal Assistance Treaty,
signed at Bern May 25, 1973, entered into force January 23, 1977, art.
27, 27 U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61; U.S.-Netherlands
Mutual Legal Assistance Treaty, signed at the Hague June 12, 1981,
entered into force September 15, 1983, art. 9, TIAS No. 10734, 1359
UNTS 209; U.S.-Italy Mutual Legal Assistance Treaty, signed at Rome
November 9, 1982, entered into force November 13, 1985, art. 17.
---------------------------------------------------------------------------
Paragraph 4 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 voluntarily.
However, the Central Authority of the Requesting State may
extend the safe conduct up to 15 days if it determines that
there is good cause to do so.
Article 11--Transfer of Persons in Custody
In criminal cases, a need sometimes arises for the
testimony in one country of a witness in custody in another
country. In some instances, a foreign country has been willing
and able to ``lend'' witnesses to the U.S. 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 other occasions, the U.S. Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings.\21\
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\21\ For example, in September, 1986, the U.S. Justice Department
and the U.S. 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.
---------------------------------------------------------------------------
Article 11 provides an express legal basis for cooperation
in these matters. Paragraph 1 provides that persons in custody
in the Requested State whose presence outside of that State
(i.e., to the Requesting State or to a third state) is sought
for purposes of assistance under this Treaty, such as
testifying in a criminal prosecution, shall be transferred in
custody for that purpose if the person consents and the Central
Authorities of both states agree.
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.
---------------------------------------------------------------------------
Paragraph 3 provides express authority, and the obligation,
for the receiving State to keep such a person in custody
throughout the person's stay there, unless the sending State
specifically authorizes release. This paragraph also authorizes
and obligates the receiving State to return the person in
custody to the sending State as soon as circumstances permit or
as otherwise agreed. 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.
In keeping with the obligation to return a person
transferred under this article, paragraph (3)(c) explicitly
prohibits the State to whom a person is transferred from
requiring the transferring State to initiate extradition or any
other proceedings 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. The language makes clear
that such transfers are discretionary.
Greece currently has the ability to transfer persons in
custody to another country or to hold such persons if
transferred to it. The United States has similar authority to
maintain the custody of persons transferred to the United
States whose testimony is needed at a federal criminal
trial.\23\ Article 11(3)(a) creates further, explicit authority
for transfer and for maintaining such custody.
---------------------------------------------------------------------------
\23\ See, Title 18 United States Code, Section 3508.
---------------------------------------------------------------------------
Article 12--Transit of Persons in Custody
Article 11 contemplates that persons in custody may be
moved from State to State for purposes of mutual assistance,
and it is reasonable to anticipate situations in which one
State may need to bring persons in custody through the other on
the way to or from third States. Article 12 provides the legal
framework for such transit. A similar article appears in other
recent U.S. mutual legal assistance treaties.\24\
---------------------------------------------------------------------------
\24\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 11. /
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Paragraph 1 states that a Requested State may authorize the
transit through its territory of a person whose personal
appearance has been requested by the Requesting State in an
investigation, prosecution, or proceeding. Paragraph 2 provides
that where such transit is authorized, the Requested State
shall have the authority and obligation to keep the person in
custody during transit.
Article 13--Location or Identification of Persons or Items
This article provides for ascertaining the identity and
whereabouts in the Requested State of persons (such as
witnesses, potential defendants, or experts) or the location of
items if the Requesting State seeks such information. This is a
standard provision contained in all U.S. mutual legal
assistance treaties. The Treaty requires only that the
Requested State use its ``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 identity, suspected whereabouts and last known
location of persons and items.
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 that may be in third
countries. In all cases, the Requesting State would be expected
to supply sufficiently specific requests including all
available information about the last known location of the
persons or items sought.
Article 14--Service of Documents
This article requires the Requested State to use its ``best
efforts'' to effect the service of documents such as summonses,
complaints, subpoenas, or other legal papers relating to an
investigation, prosecution or other proceeding covered by the
Treaty. Identical provisions appear in other U.S. mutual legal
assistance treaties.\25\
---------------------------------------------------------------------------
\25\ See, U.S.-Lithuania Mutual Legal Assistance Treaty, signed at
Washington January 16, 1998, entered into force August 26, 1999, art.
13./
---------------------------------------------------------------------------
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 Greece to follow a specified
procedure for service) or by the United States Marshal's
Service in instances in which personal service is requested. As
of the date of the negotiations, legislation that would allow
service by mail was pending in Greece.
Paragraph 2 provides that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents are to be transmitted by the Central Authority of
the Requesting 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 items needed
in the former as evidence or for other purposes. U.S. courts
can and do execute such requests under Title 28, United States
Code, Section 1782.\26\ This article creates a formal framework
for handling such requests and is similar to provisions in
other U.S. mutual legal assistance treaties.\27\
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\26\ For example, in 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.), a search warrant was issued on February 24,
1984, based on a request under Title 28, United States Code, Section
1782.
\27\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 15.
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Article 15 requires that the request for a search, seizure
and transfer of items justify such action under the laws of the
Requested State. This means that a request to the United States
from Greece will have to be supported by a showing of probable
cause for the search. A U.S. request to Greece would have to
satisfy the corresponding evidentiary standard there, similar
to probable cause. Further, the matter for which the search and
seizure is requested must involve a ``serious offense'' for
which a search would be authorized under Greek law.
Paragraph 2 is intended to ensure that a record is kept of
items seized and delivered up under the Treaty. This provision
requires that, upon request, every official who has custody of
a seized item shall certify, through use of Form E appended to
the Treaty, the identity of the item, the continuity of
custody, and any changes in its condition. The paragraph
further states that no additional certification is required and
Form E shall be admissible in evidence in the Requesting State.
Paragraph 3 establishes that the Central Authority of 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.
Article 16--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. 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 17--Proceeds and Instrumentalities of Offenses
This article is similar to a number of U.S. mutual legal
assistance treaties, including Article 16 of the U.S.-Barbados
Mutual Legal Assistance Treaty and Article 17 of the U.S.-
Latvia Mutual Legal Assistance Treaty. Paragraph 1 authorizes
the Central Authority of one Party to inform the Central
Authority of the other of the existence in the latter's
territory of proceeds or instrumentalities of offenses that may
be subject to forfeiture or seizure. The term ``proceeds or
instrumentalities of offenses'' was intended to include things
such as money, vessels, vehicles, or other valuables either
used in the commission of the crime or purchased or obtained as
a result of the crime.
Upon receipt of notice under this article, the Central
Authority of the Party in which the proceeds or
instrumentalities are located may present this information to
its authorities for a determination whether any action is
appropriate. For instance, if the assets obtained by fraud in
Greece are located in the United States, U.S. authorities could
act to seize them under 18 U.S.C. 981 in aid of a prosecution
under Title 18, United States Code, Section 2314.\28\ U.S.
authorities could also seek to secure a temporary restraining
order in anticipation of a civil action for the return of the
assets to the lawful owner. Proceeds of a foreign kidnaping,
robbery, extortion or a fraud by or against a foreign bank are
subject to civil and criminal forfeiture in the United States
since these offenses are predicate offenses under U.S. money
laundering laws.\29\ 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.
The Greek delegation explained that while, currently, Greece
has forfeiture legislation that covers drug offenses,
legislation has been proposed to extend the coverage of
offenses for which forfeiture may be possible. In the future,
this same legislation may make it possible for Greece to
enforce foreign criminal forfeiture judgments.
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\28\ 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. Proceeds of such
activity become subject to forfeiture pursuant to Title 18, United
States Code, Section 981 by way of Title 18, United States Code,
Section 1956 and Title 18, United States Code, Section 1961. The
forfeiture statute applies to property involved in transactions in
violation of section 1956, which covers any activity constituting an
offense defined by section 1961(1), which includes, among others, Title
18, United States Code, Section 2314.
\29\ 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 States will be able and willing to
help one another. Similar to the Greek statute, 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.\30\ The U.S. delegation expects
that Article 17 of the Treaty will enable this legislation to
be even more effective.
---------------------------------------------------------------------------
\30\ 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, December 20,
1988. Both the United States and Greece are parties to this Convention.
---------------------------------------------------------------------------
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 and
instrumentalities of offenses; restitution to the victims of
crime; and the collection of fines imposed as sentences in
criminal prosecutions. This assistance may include the
temporary immobilization of the proceeds or instrumentalities
pending further proceedings. Thus, if the law of a 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 Treaty 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 would exceed its internal legal authority. It
does not, for instance, mandate institution of forfeiture
proceedings or initiation of temporary immobilization in either
country against property identified by the other if the
relevant prosecution officials do not deem it proper to do so.
U.S. 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 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.\31\
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. The Greek delegation explained that Greece's legislation
does not prohibit international sharing and, therefore, in
future, Greece will rely on Article 17(3) as the legal basis to
share with the United States property forfeited in Greece with
U.S. assistance.
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\31\ See, Title 18, United States Code, Section 981(i)(1).
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Article 18--Compatibility with Other Arrangements
This article states that assistance and procedures set
forth in this Treaty shall not prevent either Party from
granting assistance to the other Party through the provisions
of other applicable international agreements or through the
provisions of its national laws. Article 18 also states that
the Parties may provide assistance pursuant to any bilateral
arrangement or practice that may be applicable. The Treaty
would leave the provisions of U.S. and Greek law on letters
rogatory completely undisturbed, and would not alter any pre-
existing agreements concerning investigative assistance.\32\
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\32\ See, e.g., Agreement on the Procedures for Mutual Legal
Assistance in the Administration of Justice in Connection with the
Lockheed Aircraft Corporation Matter, May 20, 1976, 27 U.S.T. 2006,
T.I.A.S. 8300, 1052 U.N.T.S. 349.
---------------------------------------------------------------------------
Article 19--Consultation
Experience has shown that as the Central Authorities work
together, they become aware of various practical ways to make
implementation of the Treaty more effective and their own
efforts more efficient. Periodic or regular consultations
provide a forum for initiating improvements in the Treaty's
implementation. This article states that the Central
Authorities will share those ideas with one another, and will
agree on the implementation of such measures. Practical
measures of this kind might include methods for keeping each
other informed of the progress of investigations and cases in
which treaty assistance was utilized. Similar provisions are
contained in recent U.S. mutual legal assistance treaties.
Article 20--Ratification, Entry Into Force, and Termination
Paragraph 1 states that the Treaty is subject to
ratification and that the instruments of ratification shall be
exchanged as soon as possible.
Paragraph 2 states that the Treaty shall enter into force
60 days after the exchange of instruments of ratification. The
Greek delegation requested this 60 day period between the
exchange of instruments of ratification and entry into force in
order to publish the text and provide guidance concerning the
new law (e.g., authorized presence of specific persons during
the taking of witness testimony) and procedure (e.g.,
authentication by use of forms) adopted by the Treaty. The
exchange of instruments will take place through the diplomatic
channels.
Like many other U.S. mutual legal assistance treaties
negotiated in the past two decades, Article 20(3) expressly
makes this Treaty retroactive, and covers requests presented
after entry into force whether the relevant acts or omissions
occurred before, on, or after the date upon which the Treaty
entered into force.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect one year after receipt of written notification.
------
Technical Analysis of the Mutual Legal Assistance Treaty Between the
United States of America and the Federal Republic of Nigeria
On September 13, 1989, the United States and Nigeria signed
a Treaty Between the Government of the United States of
American and the Federal Republic of Nigeria on Mutual Legal
Assistance in Criminal Matters (``the Treaty''). This Treaty
grew out of a successful executive agreement between the United
States Department of Justice and the Nigerian Ministry of
Justice, signed at Washington November 2, 1987. The Treaty is
quite similar to the mutual legal assistance treaties which the
United States has signed with other countries. The Treaty is
expected to be a valuable weapon for the United States in its
efforts to combat organized crime, transnational terrorism,
international drug trafficking and other offenses. The Treaty
is also a major step forward in the improvement of general
relations between the United States and Nigeria.
It is anticipated that the Treaty will be implemented in
the United States largely pursuant to the procedural framework
provided by Title 28, United States Code, Section 1782. During
the negotiations, Nigeria told the United States that it does
not have any specific law on mutual legal assistance, but that
Nigeria anticipates enacting implementing legislation for the
Treaty before that country in a position to exchange
instruments of ratification and bring the Treaty into 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
history. 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 I--Scope of Assistance
The first article of the Treaty provides for assistance in
all matters involving the investigation, prosecution and
suppression of offenses and in proceedings related to criminal
matters.
The negotiators specifically agreed that the term
``proceedings'' includes grand jury proceedings in the United
States. Similarly, the Treaty covers other legal measures taken
prior to the filing of formal charges in either State and the
full range of proceedings in a criminal case, include such
matters as bail and sentencing hearings.\1\ It was also agreed
that since the phrase ``proceedings connected therewith'' is
rather broader than the investigation, prosecution or
sentencing process itself, proceedings covered by the treaty
need not be strictly criminal in nature. For instance,
proceedings to forfeit to the Government the proceeds of
illegal drug trafficking are sometimes civil in nature.\2\ The
Treaty could be invoked in matters where no criminal
prosecution or investigation is pending, such as a civil
forfeiture proceeding involving assets acquired through a
criminal offense covered by the Treaty.
---------------------------------------------------------------------------
\1\ One U.S. 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 at the investigatory
stage, or 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.
\2\ Title 21, United States Code, Section 881; Title 18, United
States Code, Secton 1964.
---------------------------------------------------------------------------
The second paragraph of the article sets forth a list of
the major types of assistance specifically considered by the
Treaty negotiators. Most of the items listed in the second
paragraph are described in further detail in subsequent
articles. The second paragraph's list of kinds of assistance is
not intended to be exclusive, a fact which is indicated by the
word ``include'' in the opening clause of the paragraph and
reinforced by the final subparagraph.
The third paragraph is self-explanatory and permits
assistance to be granted even if the conduct which is the
subject of a request does not constitute a crime under the laws
of the Requested State.
The fourth paragraph provides that the Treaty is intended
solely for government to government mutual legal assistance.\3\
The Treaty is not intended to be utilized by individuals or
non-governmental entities in either State. Thus, private
parties may not invoke the Treaty in order to obtain evidence
from the other country. The Nigerian delegation stressed that
the obligations in the Treaty run from government to
government, and that in several parts of the Treaty the balance
struck regarding the obligations of the Parties was influenced
by the United States delegation's assurance that the rather
substantial degree of government assistance called for by the
Treaty would be available only to the U.S. Government, not to
any person in the United States who happens to be a defendant
in a criminal case or have some other non-prosecutorial
interest. Private litigants in the United States may continue
to obtain evidence from Nigeria by letters rogatory, an avenue
of international assistance which this Treaty leaves
undisturbed. Similarly, the Treaty is not intended to create
any right in a private person to suppress or exclude evidence
thereunder.
---------------------------------------------------------------------------
\3\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984),
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
Article II--Central Authorities
Article II of the Treaty requires that each party shall
establish a ``Central Authority.'' The Central Authority of the
United States would make all requests to Nigeria on behalf of
federal agencies, state agencies, and local law enforcement
authorities in the United States. The Nigerian Central
Authority will make all requests emanating from the authorities
there. The Central Authority for the Requesting State of course
will exercise some discretion as to the form and contents 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 from the other,
transmitting it to the appropriate federal or state agency,
court or other authority for execution, with a view to insuring
that a timely response is made.
The second paragraph of the article provides that the
Attorney General will be the Central Authority for the United
States, as is the case under all other U.S. mutual legal
assistance treaties. The Attorney General has delegated his
duties as Central Authority under mutual assistance treaties to
the Assistant Attorney General in charge of the Criminal
Division, pursuant to 28 C.F.R. Section 0.64-1.\4\ This
paragraph also states that the Attorney General of the
Federation of Nigeria or a person designated by him will serve
as the Central Authority for Nigeria.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
Article III--Limitations on Assistance
Article III specifies the classes of cases in which
assistance may be denied under the Treaty. Article III(1)(a) is
self-explanatory, and permits denial of assistance where the
request fails to conform to the Treaty's requirements. Articles
III(1)(b) and III(1)(c) permit the Central Authority of the
Requested State to deny a request if the request relates to a
political offense or to a strictly military offense. These
restrictions are similar to those found in our other mutual
legal assistance treaties.
Article III(1)(d) permits assistance to be refused if
execution of the request would be contrary to the Constitution
of the Requested State or would adversely affect the security
or other essential national interests of the Requested 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 United States intends to interpret this provision
sparingly.
For the United States, the phrase ``security'' would
include cases in which assistance might involve disclosure of
information that is classified for national security reasons.
It is anticipated that the U.S. Department of Justice, as
Central Authority for the United States, will work closely with
the Department of State and other government agencies to
determine whether to execute a request that might fall in this
category.
``Essential national interests'' could also 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 U.S. Central Authority may invoke paragraph 1(d) to decline
to provide information pursuant to a request under this Treaty
if 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 a felony, including facilitation of
the production or distribution of illegal drugs.\5\
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\5\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See,
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy
Assistant Attorney General, Criminal Division, United States Department
of Justice).
---------------------------------------------------------------------------
The negotiators had discussed placing a provision in this
article which would have barred assistance under the Treaty if
the Central Authority of the Requested State had a reasonable
basis to believe that compliance with the request would
facilitate the prosecution or punishment of any person on
account of his race, religion, nationality or political
opinions, or would cause prejudice for these reasons to any
person affected by the request. The Nigerian delegation felt
that the Nigerian Constitution may require some cognizance of
this concept in the case of a United States request to Nigeria.
This concern was addressed through the inclusion of the portion
of Article III(1)(d) which permits the Central Authority of the
Requested State to deny assistance if the execution of the
request would be contrary to the Constitution of that State.
This enables the Central Authority to deal with cases in which
it must consider the possibility of political persecution (or
consider any other constitutionally mandated principle). The
clause permitting denial if the request would violate the
Constitution of the Requested State is similar to language that
appears in several other mutual legal assistance treaties.\6\
---------------------------------------------------------------------------
\6\ E.g., U.S.-Jamaica Mutual Legal Assistance Treaty, signed at
Kingston July 7, 1989, entered into force July 25, 1995, art. 2(1)(e).
---------------------------------------------------------------------------
The second paragraph of this article permits the Requested
State to impose appropriate conditions on its assistance in
lieu of denying a request outright pursuant to the first
paragraph of this article. For example, a State might request
information which could be used either in a routine criminal
case (which would be within the scope of the Treaty) or in a
prosecution of a political offense (which could be refused
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. It is
anticipated that the Requested State would notify the
Requesting State of 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 it
does accept the evidence, it must respect the conditions
specified by the Requested State with respect to the evidence.
The third paragraph of Article III states that a request
for assistance need not be executed immediately where execution
would interfere with an investigation or legal proceeding in
progress in the Requested State, or it may be executed subject
to conditions determined to be necessary after consultations
with the Central Authority of the Requesting State. It is
understood that the Central Authority of the Requested State
will determine when to apply this provision and may, in his
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence which might otherwise be lost
before the conclusion of the investigation or legal proceeding
taking place in that State.
The fourth paragraph of the article requires that the
Central Authority of the Requested State promptly notify the
Central Authority of the Requesting State of the reason for
denying or postponing execution of the request. This assures
that when a request is denied or only partly executed the
Requested State will provide some explanation for not providing
all of the information or evidence sought. This will eliminate
misunderstandings which can arise in the operation of the
agreement, and enable the Requesting State to better prepare
its requests in the future.
Article IV--Form and Contents of Requests
The first paragraph 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. An
oral request must be confirmed in writing ``as soon as
practicable.''
The second paragraph lists information which is deemed
crucial to efficient operation of the agreement, and so must be
included in each request. The third paragraph outlines kinds of
information which should be provided ``when appropriate.''
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.
Article V--Execution of Requests
The first paragraph of Article V requires each Central
Authority ``as expeditiously as practicable'' to execute a
request or, when appropriate, to transmit it to the authority
having jurisdiction to do so. The Treaty contemplates that the
Central Authority which receives a request will first review
the request and immediately notify the Central Authority of the
Requesting State if it is of the opinion that the request does
not 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
agency in the Requested State, the Central Authority will see
to it that the request is promptly transmitted to the correct
agency 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. However, a request may be transmitted
to state officials for execution if the Central Authority deems
it more appropriate to do so.
The second sentence of the first paragraph authorizes and
requires the federal, state, or local agency or authority
selected by the Central Authority to take whatever action would
be necessary and 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 Nigeria. Rather, it is
anticipated that when a request from Nigeria requires
compulsory process for execution, the U.S. 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 provides that
the ``the courts of the Requested State shall have authority to
issue subpoenas, search warrants, or other orders necessary to
execute the request.'' This language specifically authorizes
U.S. courts to use all of their powers to issue subpoenas and
other process to satisfy a request under the Treaty.
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 other State. Since the cost of retaining counsel abroad
to present and process letters rogatory is sometimes quite
high, this provision for reciprocal legal representation should
be a significant advance in international legal cooperation. It
is also understood that should the Requesting State choose to
hire private counsel in connection with a particular request,
it is free to do so, at its own expense.
The third paragraph of the article provides that all
requests shall be executed in accordance with the laws of the
Requested State except to the extent that the Treaty
specifically provides otherwise. For the United States, the
Treaty is intended to be self-executing, and no new or
additional legislation apart from Title 28, United States Code,
Section 1782, is needed to carry out the obligations
undertaken.
The same paragraph requires that procedures specified in
the request be followed in the execution of the request except
insofar as those procedures are prohibited by the law of the
Requested State. This provision is necessary both because (1)
there may be significant differences between procedures that
must be followed by U.S. and Nigerian authorities in collecting
evidence in order to assure the admissibility of that evidence
at trial and (2) the evidence in question could be needed for
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.
The fourth and fifth paragraphs of the article require that
the Central Authority of the Requested State respond to
inquiries and promptly notify the Central Authority of the
Requesting State of the outcome of the execution of the
request. This assures 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.
Paragraph six requires, unless otherwise agreed, that the
Requested State return the original request with information
and evidence obtained, indicating the place and time of
execution. The final paragraph of the article provides that
requests shall be furnished in complete and unedited form and
that the Requested State will make every effort to furnish
original documents and records if requested by the Requesting
State.
Article VI--Confidentiality
The first paragraph of Article VI requires that neither a
request nor the information provided under the Treaty be
disclosed by one Contracting Party to a third State except as
authorized by the Central Authority of the other Contracting
Party.
Article VI(2) establishes an obligation to use best efforts
to keep a request and its contents confidential, but only when
requested to do so by the Central Authority of the Requesting
State.\7\ If the Requested State 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 State), the Treaty obliges the Requested State to so
indicate, thereby giving the Requesting State an opportunity to
withdraw the request rather than risk jeopardizing its
investigation or proceeding by disclosure of the information.
The third paragraph of the article requires the State which has
obtained evidence to use its best efforts to keep the evidence
confidential or use it only subject to terms and conditions it
may specify, if requested by the Central Authority of the
Requested State. It is anticipated that in this Treaty, as
under most United States mutual legal assistance treaties,
conditions of confidentiality will be imposed only when
necessary, and will be 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. The term ``best
efforts'' is 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 can let the Requesting
State see valuable evidence but impose confidentiality
restrictions which effectively prevent the Requesting State
from ever using the evidence. In the event that disclosure of
evidence obtained under the Treaty might be required in a
proceeding involving a matter other than that described in the
request,\8\ the United States would consult with the Government
of Nigeria in order to fashion a method of disclosure
consistent with the requirements of both States.
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\7\ This provision is similar to language in other U.S. mutual
legal assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal
Assistance Treaty, signed at Washington January 16, 1998, entered into
force August 26, 1999, art. 5(5).
\8\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
It should be kept in mind that under Article I(4) of the
Treaty, the restrictions outlined in Article VI are for the
benefit of the parties to the Treaty--the United States and
Nigerian governments--and the enforcement of these provisions
is left entirely to the parties. Whenever there is an
allegation that an authority or individual in the United States
is seeking to use information or evidence obtained from Nigeria
in a manner inconsistent with this article, the complainant's
recourse would be to inform the Central Authority of Nigeria of
the allegations, for consideration only as a matter between the
governments.
Article VII--Expenses
Article VII of the Treaty is largely self-explanatory and
proceeds from the basic principle that the Requested State
should bear all expenses incurred in the execution of the
request, but obliges the Requesting State to pay fees of
private experts, costs of translations, transcriptions and
allowances and expenses related to travel, unless otherwise
mutually decided in a particular case. This is consistent with
similar provisions in other U.S. mutual legal assistance
treaties.\9\
---------------------------------------------------------------------------
\9\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty,
signed at Washington February 4, 1998, entered into force May 7, 2000,
art. 6.
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Article VIII--Limitations on Use
Article IV of the Treaty states that the Requesting State
must specify the reason why information or evidence sought
under the Treaty is needed. The first paragraph of Article VIII
requires that information provided under the Treaty will not be
used for any purpose other than that stated in the request
without the consent of the Central Authority of the Requested
State.
The second paragraph of the article provides that once
information or evidence becomes public, the Requesting State is
free to use it for any purpose. When evidence obtained under
the Treaty has been 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 cited or described in the press. When that occurs,
it is practically impossible for the Central Authority of the
Requesting State to block the use of that information by third
parties.
Article IX--Obtaining Evidence in the Requested State
The first paragraph of Article IX states that a person in
the Requested State shall be compelled, if necessary,\10\ to
appear and testify or produce 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 that party. The second and third paragraphs provide that
any interested parties, including the defendant and his counsel
in criminal cases, may be permitted to be present and pose
questions during the taking of testimony under this article and
require the Requested State to provide information about the
date and place of the taking of the testimony or evidence in
advance, if requested.
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\10\ The use of the words ``if necessary'' appears at first glance
to make the obligation to execute a request for testimony
discretionary. However, the words ``if necessary'' were used in the
Treaty in order to make it clear that compulsory process is not
required in every case. For instance, a witness may be perfectly
willing to provide the needed testimony voluntarily. Use of the words
``shall be compelled'' without the words ``if necessary'' might appear
to oblige the Requested State to issue a subpoena or other compulsory
process even if it were not necessary. The United States and Nigerian
delegations fully intended that the Treaty establish a mandatory
obligation to arrange the production of the requested testimony,
leaving it to the Requested State's discretion whether or not to use
compulsory judicial process to fulfill that obligation.
---------------------------------------------------------------------------
Paragraph 4 states that if a witness asserts a claim of
immunity, incapacity, or privilege under the laws of the
Requesting State, the Requested State will take the 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.\11\ It is understood that when a person asserts a
claim of immunity, incapacity, or privilege under the laws of
the Requested State, that claim shall be resolved in accordance
with the law of the Requested State. This is consistent with
Article V(3) and 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 Nigeria is guaranteed
the right to invoke any of the testimonial privileges (e.g.,
attorney-client, inter-spousal) 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.\12\ A witness
testifying in Nigeria may raise any of the similar privileges
available under the law of Nigeria.
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\11\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty,
signed at Bridgetown February 28, 1996, and entered into force March 3,
2000, art. 8(4).
\12\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
---------------------------------------------------------------------------
Article IX(5) states that documents, records and articles
of evidence produced pursuant to the Treaty may be
authenticated by having a custodian of the records or other
qualified person complete, under oath, a certification in a
specified form. A model of the form to be used by the United
States and the form to be used by Nigeria is appended to this
Treaty as Forms A-1 and A-2. Thus, the provision establishes a
procedure for authenticating Nigerian records for use in the
United States in a manner essentially similar to that followed
in Title 18, United States Code, Section 3505.
Although the article states that the evidence is
``admissible'' when accompanied by the appropriate form, 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 negotiators anticipate that the evidentiary tests
other than authentication--such as relevance, materiality, and
the like--would still have to be satisfied in each case.
Article X--Obtaining Evidence 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 there. An appearance in the Requesting State
under this article is not mandatory, and the invitation may be
refused by the prospective witness. The Treaty requires that
the Requesting State indicate the extent to which the expenses
will be paid.
Paragraph two of this article, like Article 27 of the U.S.-
Switzerland Mutual Legal Assistance Treaty, provides that a
person who is in the Requesting State to testify or for
confrontation purposes pursuant to the Treaty shall be immune
from criminal prosecution, detention, or any restriction of
personal liberty, or from the service of process in civil suit
while he is in the Requesting State. This ``safe conduct'' is
limited to acts or convictions which preceded the witness'
departure from the Requested State. It is understood that this
provision does not, of course, prevent the prosecution of a
person for perjury or any other crime committed while in the
Requesting State under this article or later.
The third paragraph states that the safe conduct guaranteed
in this article expires fifteen days after the person has been
officially notified that his presence is no longer required, or
if he leaves the territory of the Requesting State and
thereafter returns to it.
Article XI--Records of Government Agencies
Article XI serves to insure speedy access to government
records, including records of the executive, judicial, and
legislative units at the federal, state, and local levels in
either country.
The first paragraph of the article obliges each country to
furnish the other copies of publicly available records of a
government agency. The term ``government departments and
agencies'' includes executive, judicial, and legislative units
at the federal, state, and local level in either country.
The second paragraph provides that the Requested State
``may'' share with its Treaty partner copies of nonpublic
information in government files. The article states that the
Requested State may only utilize 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 the intention of the negotiators
that the Central Authority of the Requested State determine
what the 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 which would be available to investigative
authorities in that State, but which would justifiably be
deemed inappropriate to release to a foreign government.
Examples of instances in which assistance might be denied under
this provision would be where disclosure of the information is
barred by law in the Requested State or where the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations, or
reveal information which was made available to the Requested
State in return for a promise that it not be divulged to
anyone.
The third paragraph states that documents provided under
this Article will be authenticated pursuant to a certificate in
a form appended to the Treaty. Thus, the authentication will be
conducted in a manner similar to that required by Rule 902(3),
Federal Rules of Evidence, and the records will be admissible
into evidence without additional foundation or authentication.
There are two forms, B-1 for use with evidence obtained in
Nigeria and intended for use in the United States, and B-2 for
evidence obtained in the United States and destined for use in
Nigeria.
The article refers to the provision of copies of government
records, but the Requested State would not be precluded from
delivering the original of the government records to the
Requesting State, upon request, if the law in the Requested
State permits it and if it is essential to do so.
Article XII--Temporary Transfer of Persons in Custody
In some criminal cases, a arises for the testimony at a
trial in one country of a witness serving a sentence in another
country. In some instances, the country involved was willing
and able to ``lend'' the witness to the U.S. Government,
provided the witness would be carefully guarded while here and
returned at the conclusion of his testimony.\13\ On other
occasions, the U.S. Government was able to arrange for federal
inmates here to be transported to foreign countries to assist
in criminal proceedings there.\14\ Article XII calls for mutual
assistance in situations of this kind, and thereby provides an
express legal basis for cooperation in these matters. The
provision is based on Article 26 of the U.S.-Switzerland Mutual
Legal Assistance Treaty, which is in turn based on Article 11
of the European Convention on Mutual Assistance in Criminal
Matters.
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\13\ Title 18, United States Code, Section 3508, provides for the
transfer to the United States of witnesses in custody in other States
whose testimony is needed at a federal criminal trial.
\14\ For example, on September 13, 1986, the Justice Department and
the Drug Enforcement Administration arranged for four federal prisoners
to be transported to the United Kingdom to testify for the Crown in the
case of Regina v Dye, et al., a major narcotics case in Central
Criminal Court--``the Old Bailey''--in London.
---------------------------------------------------------------------------
Paragraphs 1 and 2 provide that persons in custody in the
Requested State whose presence in the Requesting State is
sought for purposes of assistance under this Treaty, such as
testifying in a criminal prosecution, shall be transferred in
custody for that purpose if the person consents and the Central
Authorities of both states agree. Paragraph 3 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.\15\
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\15\ 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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The article's fourth paragraph provides express authority
and the obligation for the receiving State to maintain the
person in custody throughout his stay there, unless the other
State specifically authorizes release. The paragraph also
authorizes the receiving State to return the person in custody
to the other State, and provides that this return will occur as
soon as circumstances permit, or as otherwise agreed. The
transfer of a prisoner under this article requires the consent
of the person involved and of the Parties, but the provision
does not require that the prisoner consent again to his return
to the State where the transfer began.
In keeping with the obligation to return a person
transferred under this article, paragraph (3)(c) explicitly
prohibits the State to whom a person is transferred from
requiring the transferring State to initiate extradition or any
other proceedings before the status quo is restored by the
return of the person transferred. It also prohibits the
receiving State from declining to return a person transferred
on the basis of nationality. Finally, the prisoner will receive
credit for time served while in the custody of the receiving
State. This is consistent with United States practice in these
matters.
Article XIII--Identifying and Locating Persons
Article XIII provides that the Requested State is to
ascertain the whereabouts in the Requested State of persons
(such as witnesses, potential defendants, or experts) where
such information is of importance in connection with an
investigation or proceeding covered by the treaty. The Treaty
requires only that the Requested State make ``best efforts'' to
locate the person and would not be obliged to attempt to locate
persons that may be in third countries.
Article XIV--Service of Documents
Article XIV creates an obligation on the part of the
Central Authority of the Requested State to arrange for or
effect the service of summons, complaints, subpoenas, or other
legal documents at the request of the Central Authority of the
other State. Similar provisions appear in other U.S. mutual
legal assistance treaties.\16\
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\16\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty,
signed at Washington January 16, 1998, entered into force August 26,
1999, art. 13.
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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 Nigeria to follow any
specified procedure for service) and by the United States
Marshal's Service in instances where personal service is
requested.
The second paragraph of the article states that where the
document to be served calls for the appearance of a person in
the Requesting State the document must be transmitted by the
Requesting State to the Requested State a reasonable time
before the scheduled appearance. Thus, if the United States
were to ask Nigeria to serve a subpoena issued pursuant to
Title 28, United States Code, Section 1783 on a United States
citizen in Nigeria, the request would have to be submitted well
in advance of the hearing or trial at which the respondent is
expected to appear. This is to allow sufficient time for
service to be effected and for the respondent to make
arrangements for his appearance.
The third paragraph is self-explanatory and requires proof
of service returned to the Requesting State.
Article XV--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 now under
Title 28, United States Code, Section 1782,\17\ Article XV of
the Treaty creates a reciprocal framework for handling such a
request, similar to provisions in many other U.S. mutual legal
assistance treaties.\18\
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\17\ See, e.g., United States Ex Rel Public Prosecutor of
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No 84-52-Misc-01
(M.D. Fla, Orlando Div.) search warrant issued February 24, 1984.
\18\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 15.
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Pursuant to Article XV(1)'s requirement that the request
include ``information justifying such action under the laws of
the Requested State,'' a request to the United States from
Nigeria will have to be supported by probable cause for the
search. A U.S. request to Nigeria would have to satisfy the
corresponding evidentiary standard there. It is contemplated
that the request would be carried out in strict accordance with
the law of the country in which the search is being conducted.
Article XV(2) is designed to insure that a record is kept
of articles seized and of articles delivered up under the
Treaty through use of Form C appended to the Treaty. This
provision effectively requires that detailed and reliable
information be kept regarding the condition of the article at
the time of the seizure, and the chain of custody between the
time of seizure and time of delivery to the Requesting State.
The article also requires that the certificates prepared
for this purpose will be admissible without additional
authentication at trial in the Requesting State and is intended
to avoid the burden, expense, and inconvenience to the
Requested State of sending its officials to the Requesting
State to provide authentication and chain of custody testimony
each time evidence produced pursuant to this article is used.
The fact that the certificates are admissible without
additional authentication at trial leaves the trier of fact
free to accord the certificate only such weight as it is due.
The final paragraph of the article states that the
Requested State need not surrender any articles it has seized
unless it is satisfied that any interests third parties may
have in the seized items are adequately protected. This article
is similar to provisions in many United States extradition
treaties.
Article XVI--Return of Documents, Records, and Articles of Evidence
This procedural article provides that any documents,
records or articles of evidence furnished under the Treaty must
be returned to the Requested State upon request. It is
anticipated that unless original records or articles of some
intrinsic value are provided, the Requested State will not
routinely request return, but this is a matter best left to
development of practice.
Article XVII--Tracing, Seizing, and Forfeiture of Proceeds of Criminal
Activities
A primary goal of the Treaty is to enhance the efforts of
both States in the war against narcotics trafficking and
financial fraud. One major strategy in that war is to seize and
confiscate the money, property, and other proceeds of such
crimes. Article XVII is designed to further that strategy.
In the first paragraph of the article, the Parties to this
Treaty assume an obligation to aid one another, on request, in
proceedings for the forfeiture of illegally obtained assets, in
restoring illegally obtained funds or articles to their
rightful owners, and in collecting fines imposed as sentences
in criminal prosecutions. The term ``proceeds and
instrumentalities'' would include things such as money,
vessels, or other valuables either being used in the crime or
obtained as a result of the offense.
Thus, if the law of the Requested State enables it to seize
assets in aid of a proceeding in the Requesting State or
enforce a judgment of forfeiture or fine levied in the
Requesting State, the Treaty provides that the Requested State
shall do so. The language of the article is carefully selected,
however, to not require either State to take any action which
would go beyond ``the extent permitted by (its) laws.'' It
therefore does not mandate institution of forfeiture
proceedings in either country against property identified by
the other if the relevant prosecutorial authorities do not deem
it proper to do so.
The second and third paragraphs contain procedural
information regarding each party's obligation to assist the
other in seizing and forfeiting of proceeds of criminal
activities.
Title 18, United States Code, Section 981(a)(1)(B) also
allows 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 Substances Act) within whose
jurisdiction such offense or activity would be punishable by
death or imprisonment for a term exceeding one year and which
would be punishable by imprisonment for a term exceeding one
year if such act or activity had occurred within the
jurisdiction of the United States.''\19\ The United States
delegation expects that Article XVII of the Treaty will enable
full use to be made of this legislation.
---------------------------------------------------------------------------
\19\ The U.S. legislation is consistent with the laws in other
countries, such as Switzerland, Canada, and the United Kingdom, and the
movement among States is toward legislation of this kind for use in
drug enforcement.
---------------------------------------------------------------------------
The fourth paragraph states that a party which has been
requested to take action under this article shall apply its
laws to the disposition of property it confiscates as a result
of a request. United States law permits the Government to
transfer a share of certain forfeited property to other
countries pursuant to a bilateral agreement authorizing such
transfers.\20\ Under regulations promulgated by the Attorney
General, the amount reflects the direct or indirect
contribution of the foreign government in law enforcement
activity which led to the seizure and forfeiture of the
property. Article XVII(4) 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.
---------------------------------------------------------------------------
\20\ Title 18, United States Code, Sec. 981(i)(1)(B).
---------------------------------------------------------------------------
The fifth paragraph states that either party may notify the
other of the location of assets which may be forfeitable or
otherwise subject to seizure. Upon receipt of notice under this
article, the Central Authority of the State in which the
proceeds are located may take whatever action is appropriate
under the law in that State. For instance, if the assets in
question are located in the United States and were obtained as
a result of a fraud in Nigeria, they could be seized in aid of
a prosecution under Title 18, United States Code, Section
2314,\21\ or be made 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 located in Nigeria, we
expect similar action could be taken pursuant to Nigerian law.
Proceeds of a foreign kidnaping, robbery, extortion or a fraud
by or against a foreign bank are subject to civil and criminal
forfeiture in the United States since these offenses are
predicate offenses under U.S. money laundering laws.\22\ 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. If the assets in question are
the fruit of drug trafficking, it is anticipated that the
parties will move quickly and expeditiously to freeze them and
ensure confiscation.
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\21\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud here or abroad.
\22\ Title 18, United States Code, Section 1956(c)(7)(B).
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Article XVIII--Information on Crimes, Arrests, Convictions, and
Deportations
Paragraph 1 of this article of the Treaty provides that the
Central Authority of one Party may inform his counterpart in
the other Party if he becomes aware of criminal activities
which are or may be committed within the jurisdiction of that
other Party. The Central Authority receiving such information
may, of course, deal with it as he deems most appropriate. This
provision was included in the Treaty because the Nigerian
delegation felt that Nigerian police occasionally acquire
information in Nigeria about crimes taking place in the United
States, and they wanted the Treaty to be available as a secure
channel for transmitting information to appropriate United
States authorities.
Paragraph 2 provides that the Central Authority of one
Party may request information regarding the other Party's
arrest, conviction or deportation of a national of the
Requesting State. This article was proposed by the Nigerian
delegation, which initially wanted the mutual legal assistance
treaty to contain an alternative method for arranging the
prompt provisional arrest of fugitives for extradition. The
United States delegation insisted that provisional arrest can
only be addressed in an extradition treaty, and the final text
of this article focuses on a slightly different problem.
Nigerian law enforcement authorities sometimes seek
information from the United States about a Nigerian national
arrested in the United States. For instance, when United States
authorities arrest a drug courier who is a Nigerian national,
Nigerian police may well request full details on the arrest in
order to investigate and apprehend those who supplied the drugs
to the courier. The second paragraph enables the Central
Authorities under the Treaty to assist in such situations.
Finally, the Nigerian delegation indicated that sometimes
convicted felons who are Nigerian nationals are deported from
the United States to Nigeria without United States officials
fully advising their Nigerian counterparts of the person's
criminal history--information which Nigerian police could find
very helpful in investigating crimes there. This article is
intended to facilitate requests where the Requesting State's
authorities have a law enforcement purpose for the request.
Article XIX--Other Treaties
This article states that assistance and procedures provided
by this treaty shall not prevent assistance under any other
international convention or agreement between the two
countries. It 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 leaves the
provisions of United States and Nigerian law on letters
rogatory completely undisturbed, and does not alter any pre-
existing agreements concerning investigative assistance.\23\
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\23\ See, e.g., the Agreement on Procedures for Mutual Assistance
in Law Enforcement Matters, signed at Washington November 2, 1987,
entered into force Nov. 2, 1987 (TIAS 11540).
---------------------------------------------------------------------------
Article XX--Consultation
The conclusion of this agreement is rather more than the
simple signing of a Treaty. It is the beginning of a new,
better, and more cooperative relationship between the United
States and Nigerian law enforcement communities. It is the
establishment of a framework within which the investigative and
prosecutorial authorities of the two countries can work
together more effectively. The first paragraph of the article
encourages both parties to be aware of the opportunity
presented by this agreement to ensure that other aspects of our
bilateral relations benefit from the same kind of flexibility
and mutual understanding that this Treaty reflects,
particularly in the area of mutual legal assistance. For
example, the Nigerian delegation specifically requested that
the United States consider negotiation of an updated
extradition treaty.
The U.S. 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. The second
paragraph of the article calls upon the States to 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 used.
Article XXI--Amendment
This article provides for amendments to the Treaty by
agreement.
Article XXII--Ratification and Entry Into Force
This article contains standard language concerning the
procedure for exchange of the instruments of ratification, and
the coming into force of the Treaty.
Article XXIII--Termination
The final article contains the standard provision
concerning the procedure for terminating the Treaty. The
requirement that either State give six months notice to the
other of an intent to terminate the Treaty is not unusual in a
treaty of this kind, and is similar to the requirement
contained in many of our mutual legal assistance treaties.
------
Technical Analysis of The Treaty Between The United States of America
And Romania on Mutual Legal Assistance in Criminal Matters
On May 26, 1999, the United States signed a Treaty Between
the United States of America and Romania 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, international drug trafficking, and
other offenses.
It is anticipated that the Treaty will be implemented in
the United States largely pursuant to the procedural framework
provided by Title 28, United States Code, Section 1782. Romania
currently does not have any specific law on mutual legal
assistance, but it is considering proposing new legislation to
assist in implementation of the Treaty.\1\
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\1\ During the negotiations, the U.S. delegation asked the Romanian
delegation to explain the relationship between treaties and legislation
under Romanian law. The Romanian delegation told the U.S. delegation
that in Romania treaties do not take precedence over legislation, and
in the event of conflict the legislation prevails.
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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
history. 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 Romania,
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\ but 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 United States, 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 United States must
assist Romania under the Treaty in connection with investigations prior
to charges being filed in Romania.
\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, 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.
Paragraph 3 of this article makes it clear that there is no
requirement of dual criminality under this Treaty for
cooperation. Thus, assistance is to 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 Romania criminal law differ
significantly, and a general dual criminality rule would make
assistance unavailable in many significant areas. During the
negotiations, the Romania delegation gave assurances that
assistance would be available under the Treaty to the United
States in investigations of major crimes such as conspiracy;
drug trafficking, including operating a 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; Export
Control Act violations; criminal tax; securities fraud and
insider trading; crimes against the environmental; or antitrust
offenses.
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 Romania 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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\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 Contracting Party designate
a ``Central Authority'' to make and receive Treaty requests.
The Central Authority of the United States would make all
requests to Romania on behalf of federal agencies, state
agencies, and local law enforcement authorities in the United
States. The Central Authority of Romania would make all
requests emanating from officials in Romania.
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 proper 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
2(2) of the Treaty also states that the Minister of Justice of
Romania will serve as the Central Authority for Romania.
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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 any other means,
including use of the facilities of the International Criminal
Police Organisation (INTERPOL), 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. These
restrictions are similar to those found in other mutual legal
assistance treaties.
Paragraph (1)(a) permits the denial of a request if it
relates to an offense under military law that would not be an
offense under ordinary criminal law. Romania has no separate
code of military laws.
Paragraph (1)(b) permits the Central Authority of the
Requested States 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,
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 by that State.
However, it was agreed that ``essential interests'' could
also 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 U.S. Central Authority may invoke
paragraph 1(b) to decline to provide 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
a felony, including the facilitation of the production or
distribution of illegal drugs.\7\
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\7\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See,
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2nd Sess., 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 if
execution of the request relates to an offense that is
considered by the Requested State to be a political offense. It
is anticipated that the Central Authorities will employ
jurisprudence similar to that used in extradition treaties for
determining what is a ``political offense.'' Paragraph (1)(d)
permits a request to be denied 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
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 prosecution of a political offense
(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 giving the Requesting State a
chance 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, signed at Bern
May 25, 1973, entered into force January 23, 1977, art. 26, 27 U.S.T.
2019, TIAS No. 8302, 1052 UNTS 61.
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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 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.
Paragraph 4 states that a request may not be denied on the
ground of bank secrecy. This language, taken from the UN Model
MLAT, was included in response to concerns by the U.S.
delegation based on reports that Romanian bank secrecy was so
stringent that prosecutors in Romania must obtain authorization
from a committee composed of bank officials prior to issuing a
subpoena for bank records, and that this requirement would also
apply to issuance of a Romanian subpoena for bank records on
behalf of the United States. The Romanian delegation explained
that Article 37 of Romania's Banking Law does require that a
bank's board of directors agree to the disclosure of bank
records, but that this rule was intended to bar disclosures to
civilians, not to law enforcement, and does not apply to
disclosures in response to judicial process. They foresee no
problem in getting bank records for the United States under the
MLAT if the U.S. request shows that the account holder is
implicated in the U.S. investigation in any way,\9\ either as a
suspect or merely as someone ``withholding evidence'' from our
investigators. They also said that Romanian prosecutors have
the power to issue search warrants for bank records, and will
do so on behalf of the United States if the requirements for a
search warrant are present. Romania suggested that Article 3(4)
be included in the MLAT to assure us that it would not allow
bank secrecy laws to interfere with implementation of the
Treaty.
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\9\ In discussing Article 37, the Romanians concluded that a bank's
concurrence is not needed if criminal charges have been filed against
the account holder or if a criminal investigation has begun. When the
United States delegation indicated that this was still too narrow
because we often need records of persons who are neither charged nor
suspected of criminal wrongdoing themselves, the Romanian delegation
indicated that they still believed they could find a way to get bank
records in response to a U.S. request.
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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.'' If the
request is not in writing, it must be confirmed in writing
within ten days unless the Central Authority of the Requested
State agrees otherwise. Paragraph 2 provides that each request
shall be translated into the language of the Requested State
unless otherwise agreed. Supporting documentation is also to be
translated, if necessary, upon request by the Requested State.
Paragraph 3 lists the four kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 lists ten kinds of
information that are important but not always crucial, and must
be provided ``to the extent necessary and possible.'' In
keeping with the intention of the States that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority to promptly
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 competent
authorities 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 Romania.
Rather, it is anticipated that when a request from Romania
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 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 specifically
authorizes United States courts to use all of their powers to
issue subpoenas and other process to satisfy a request under
the Treaty. It also reflects an understanding that the States
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.
Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for
representing the Requesting State in the execution of a request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial authority 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.
Paragraph 3 provides that ``[r]equests shall be executed
according to the 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. The delegations discussed the fact that neither State
anticipates taking actions pursuant to a treaty request that
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 U.S. and Romanian
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documents obtained abroad to be admitted in
evidence if they are duly certified and the defendant has been
given fair opportunity to test its authenticity.\10\ Since
Romania's law contains no similar provision, documents acquired
in Romania in strict conformity with Romanian procedures might
not be admissible in United States courts. Furthermore, United
States courts use procedural techniques such as videotape
depositions that simply are not used in Romania even though
they are not forbidden there.
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\10\ 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 to the Requesting State subject to
conditions needed to prevent 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 use its best efforts
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.-Lithuania Mutual
Legal Assistance Treaty, signed at Washington January 16, 1998, entered
into force August 26, 1999, 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 toward execution 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.\12\ Since
the cost of retaining counsel abroad to present and process
letters rogatory is sometimes quite high, this provision for
reciprocal legal representation 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.
Article 6 does obligate the Requesting State to pay fees of
expert witnesses, translation,\13\ interpretation and
transcription costs, and allowances and expenses related to
travel of persons pursuant to Articles 10, 11 and 12.
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\12\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty,
signed at Washington February 4, 1998, entered into force May 7, 2000,
art. 6.
\13\ The Romanian delegation stated that in Romania translations
are routinely paid for by the State, so the United States ordinarily
would not be charged for translations conducted there.
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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 the Requesting State not use
any information or evidence provided under the Treaty in any
investigation, prosecution, or proceeding other than that
described in the request without the prior consent of Central
Authority of the Requested State. If such a use limitation is
required, the Requesting State must comply with the
requirement. It will be recalled that Article 4(3)(d) states
that the Requesting State must specify the purpose for which
the information or evidence 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 furnishes to the Requesting
State be kept confidential. The delegations agreed that
conditions of confidentiality would be imposed only when
necessary, and would be 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 must 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 Romanian 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.
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.\14\ 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.
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\14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
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Paragraph 4 states that once evidence obtained under the
Treaty has been revealed to the public in a manner consistent
with Paragraph 1 or 2, the Requesting State is free to use the
evidence.\15\ When 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.
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\15\ Many U.S. MLATs state that information that has been made
public in the requesting state may be used ``for any purpose''
thereafter. Romania requested that the phrase ``for any purpose'' not
appear in this Treaty because it might be read to authorize the use of
the information or evidence for illegal purposes, but Romania fully
agreed that the information or evidence can be used for any lawful
purpose or in any investigation, prosecution, or proceeding, whether or
not the matter is related to the matter identified in the request.
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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 Romania authority has used
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 give statements, or
produce items, including documents and records and articles of
evidence.
The compulsion contemplated by this article can be
accomplished in the United States by subpoena under Title 28,
United States Code, Section 1782 or any other means available
under the law of the Requested State. The Romanian delegation
predicted that when the Treaty is in force Romania will use a
combination of subpoenas, search warrants, and other measures
to compel witnesses to provide information in response to U.S.
requests. The Romanian delegation explained that in Romania,
prosecutors usually employ a search warrant to obtain
information from a bank or other institution that is needed in
criminal investigations. It is possible to issue a subpoena,
but evidently that is not done often, primarily because the
penalty for noncompliance with a subpoena is such a small fine
that subpoenas have little coercive effect. A similar problem
emerged in discussions regarding obtaining documents, records
or physical evidence from private citizens. The Romanian
delegation indicated that its Central Authority could issue a
subpoena for such items, but this may not be effective because
the fines for noncompliance are very small. Alternatively,
Romanian prosecutors could issue search warrants and seize the
items, but only if the person with the item is the target of
the investigation. In both cases the Romanian delegation
ultimately concluded that Romania probably will need to
consider new legislation to carry out its obligations under the
Treaty.
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 question the person giving the testimony or evidence.
Persons present at the execution of a request will also be
permitted to make a verbatim record, using technical means.
Paragraph 4 states that if a witness asserts a claim of
immunity, incapacity, or privilege that is unique to the
Requesting State, the Requested State will take the 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\ It is understood that when a person asserts a
claim of immunity, incapacity, or privilege under the laws of
the Requested State, that claim shall be resolved in accordance
with the law of the Requested State. This is consistent with
Article 5(3), and 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 Romania is guaranteed
the right to invoke any of the testimonial privileges (e.g.,
attorney client, inter-spousal) 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 Romania may raise any of the similar privileges
available under the law of Romania.
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\16\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty,
signed at Bridgetown February 28, 1996, and entered into force March 3,
2000, art. 8(4)).
\17\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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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. The absence or
nonexistence of such evidence will be authenticated on Form B.
The attestation will be given under oath, before a judge
magistrate, or judicial officer, and any false statements made
in the attestation will be subject to prosecution in Romania as
a false oath or declaration in violation of Article 292 of
Romania's Criminal Code. 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, or Form B, 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 State to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by a governmental or
judicial authority in the Requested State. The term
``governmental or judicial authority'' 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 undertaking 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 such 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,
like most other U.S. bilateral mutual legal assistance
treaties, 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 Romania under
this article in appropriate cases.
Paragraph 3 states that records provided under this article
may be authenticated by the officials responsible for
maintaining them through the use of Form C appended to the
Treaty. No further authentication is required. If authenticated
in this manner, the records shall be admissible in evidence in
the Requesting State. The paragraph also provides for the
appropriate officials to certify the absence or nonexistence of
records, through Form D appended to the Treaty. 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--Appearance Outside of the Requested State
This article provides that upon request, the Requested
State shall invite persons in the Requested State to travel
outside of the Requested State to appear in the Requesting
State or in a third state for purposes of assistance under this
Treaty. An appearance outside of the Requested State under this
article is not mandatory, and the invitation may be refused by
the prospective witness. The first paragraph states that the
Central Authority of the Requested State shall promptly inform
the Central Authority of the Requesting State of the person's
response. The paragraph also states that if the appearance is
in a third state, the Requesting State shall be responsible for
obtaining any necessary authorization from that third state.
Paragraph 2 provides that the Requesting State must
indicate to the Requested State the extent to which the
person's expenses will be paid, pursuant to Article 6. 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 paragraph provides that the person may ask
that the Requesting State advance the money to pay these
expenses, and that this advance may be handled through the
Embassy or consulate of the Requesting State in the Requested
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 under this Article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty by reason of
acts or convictions which preceded the person's departure for
the Requesting State 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 states that any safe conduct provided under
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
Central Authority of the Requesting State may extend the safe
conduct up to fifteen days if it determines 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.\18\
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\18\ 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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Article 11 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,\19\ which in
turn is based on Article 11 of the European Convention on
Mutual Assistance in Criminal Matters.\20\ It provides that
persons in custody in the Requested State, whose presence
outside of that State (i.e., to the Requesting State or to a
third state) is sought for purposes of assistance under the
Treaty, may be transferred in custody for that purpose if the
person consents and the Central Authorities of both states
agree. The paragraph also states that if the transfer of the
person outside the Requested State is to a third state rather
than to the Requesting State, it is the Requesting State that
must be responsible for obtaining any necessary authorizations
from that third state. Indeed, it is understood that the
Requesting State must make all arrangements with the third
state to meet the requirements of this paragraph, including the
requirements that the person be kept in custody and returned to
the Requested State.
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\19\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at
Bern May 25, 1973, entered into force January 23, 1977, art. 26.
\20\ It is also consistent with 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
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.\21\
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\21\ 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 keep such a person in custody throughout the person's
stay there, unless the sending State specifically authorizes
release. This paragraph also requires and authorizes the
receiving State to return the person in custody to the sending
State as soon as circumstances permit or as otherwise agreed,
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.
In keeping with the obligation to return a person
transferred under this article, paragraph (3)(c) explicitly
prohibits the Party to whom a person is transferred from
requiring the transferring Party to initiate extradition or any
other proceedings 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--Transit of Persons in Custody
Article 11 contemplates that persons in custody will be
moved from State to State for purposes of mutual assistance,
and it is reasonable to anticipate situations in which one
State may need to bring persons in custody through the other on
the way to or from third States. Article 12 provides the legal
framework for such transit. Similar articles appear in other
recent U.S. mutual legal assistance treaties.\22\
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\22\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 11.
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Paragraph 1 states that a Requested State may authorize the
transit through its territory of a person whose personal
appearance has been requested in investigations, prosecutions,
or proceedings in the Requesting State.\23\
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\23\ The Romanian delegation indicated that there is some question
whether Romania would exercise its discretion to authorize the transit
in custody of a Romanian national because of the potential for
litigation attempting to apply its constitutional ban on extradition of
nationals to such transit.
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Paragraph 2 states that the Requested State shall have the
authority and obligation to keep the person in custody in its
territory.
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 use its ``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 in whole or in part to a Treaty request. Identical
provisions appear in most U.S. mutual legal assistance
treaties.\24\
---------------------------------------------------------------------------
\24\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty,
signed at Washington, January 16, 1998, entered into force August 26,
1999, art. 13.
---------------------------------------------------------------------------
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 Romania 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 are to be transmitted by the Central Authority of
the Requesting 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 sometimes serves the interests of justice for one State
to ask another to find, 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.\25\ Article 15 creates a
formal framework for handling such requests and resembles
provisions in other United States mutual legal assistance
treaties.\26\
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\25\ 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).
\26\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 15(3).
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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 Romania will have to be supported by a
showing of probable cause for the search. A United States
request to Romania would have to contain all the details
concerning the action in the U.S. and satisfy the corresponding
evidentiary standard there, contained in Article 100 of the
Romanian Penal Procedure Code.
Paragraph 2 is designed to ensure that a record is kept of
articles seized and of articles delivered up under the Treaty.
This provision 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 continuity of custody, the
identity of the item, 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.
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.
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. 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 17--Proceeds and Instrumentalities of Offenses
A major goal of the Treaty is to enhance the efforts of
both the United States and Romania 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 16 in the U.S.-
Barbados Mutual Legal Assistance Treaty and Article 17 of the
U.S.-Latvia 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 Romania, 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,\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 kidnaping, 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.\28\ 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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\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. Proceeds of such
activity become subject to forfeiture pursuant to Title 18, United
States Code, Section 981 by way of Title 18, United States Code,
Section 1956 and Title 18, United States Code, Section 1961. The
forfeiture statute applies to property involved in transactions in
violation of section 1956, which covers any activity constituting an
offense defined by section 1961(1), which includes, among others, Title
18, united States Code, Section 2314.
\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 16 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 and Psychotropic
Substances, with annex and final act, done at Vienna, December 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.\30\ It specifically recognizes that the
authorities in the Requested State may take immediate action to
temporarily immobilize the assets pending further
proceedings.\31\ 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, for instance, mandate institution of forfeiture
proceedings or initiation of temporary immobilization in either
country against property identified by the other if the
relevant prosecution officials do not deem it proper to do
so.\32\
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\30\ See, Article 519-522 of the Romanian Penal Procedure Code on
enforcement of foreign judgments.
\31\ The Romanian delegation said that this could be done pursuant
to Article 163 et seq. of the Penal Procedure Code.
\32\ In Romania, unlike in the United States, the law does not
allow for civil forfeiture. However, Romanian law permits forfeiture in
criminal cases, and ordinarily a defendant must be convicted in order
for Romania 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\
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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\33\ See, Title 18, United States Code, Section 981 (i)(1).
---------------------------------------------------------------------------
Article 18--Compatibility with Other Arrangements
This article states that assistance and procedures set
forth in this Treaty shall not prevent either Party from
granting assistance to the other Party through the provisions
of other applicable international agreements. Article 18 also
states that the Parties may provide assistance pursuant to any
bilateral arrangement, agreement, or practice that may be
applicable.\34\
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\34\ See, e.g., the Agreement for the Direct Exchange of Certain
Information Regarding the Trafficking in Narcotic Drugs, Exchange of
Notes at Bucharest February 4, 1928 and April 7, 1929, entered into
force April 17, 1929 (11 Bevans 414).
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The Treaty would leave the provisions of United States and
Romania law on letters rogatory completely undisturbed, and
would 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 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. Similar provisions are contained in other recent
United States mutual legal assistance treaties. It is
anticipated that the Central Authorities will conduct regular
consultations pursuant to this article.
Article 20--Ratification, Entry Into Force, and Termination
Paragraph 1 provides that the Treaty shall be subject to
ratification, with the instruments of ratification to be
exchanged as soon as possible. Paragraph 2 provides that the
Treaty shall enter into force immediately upon the exchange of
instruments of ratification. Paragraph 3, like many recent U.S.
mutual legal assistance treaties, provides that the Treaty
shall apply to any request presented after the date of the
Treaty's entry into force, without regard to whether the
relevant acts or omissions under investigation occurred prior
to or after the date on which the Treaty entered into force.
Paragraph 4 contains standard provisions concerning the
procedure for terminating the Treaty. Termination shall take
effect six months after the date of receipt 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 South Africa on Mutual Legal Assistance in Criminal
Matters
On September 16, 1999, the United States signed a Treaty
Between the Government of the United States of America and the
Government of the Republic of South Africa 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, international drug trafficking, and
other offenses.
It is anticipated that the Treaty will be implemented in
the United States largely pursuant to the procedural framework
provided by Title 28, United States Code, Section 1782. South
Africa currently has its own legislation on mutual legal
assistance,\1\ but it anticipates enacting additional
legislation to implement the Treaty.\2\
---------------------------------------------------------------------------
\1\ The ``International Co-operation in Criminal Matters Act, 1996
(Act No. 75 of 1996).'' The key sections of this law that are germane
to the interpretation and implementation of the Treaty are discussed in
more detail in this technical analysis.
\2\ The South African delegation said that under Article 231 of
South Africa's Constitution, a mutual assistance treaty as normally
brought into force has the force and effect of law in South Africa
unless it is inconsistent with the Constitution or an Act of
Parliament. Thus, the terms of this Treaty would be overridden by any
inconsistent internal law, apparently including pre-existing law,
unless the treaty is enacted into law in national legislation. (Such
enactment would be the functional equivalent of the enactment of
implementing legislation identical to the Treaty's terms.) The U.S.
delegation made it clear that the United States would consider it a
breach of the Treaty if South Africa were to rely on internal statutes
to deny assistance on grounds that are not contained in the Treaty. The
South African delegation assured the U.S. delegation that South Africa
takes its treaty obligations seriously, and agreed to consider the U.S.
recommendation that this Treaty be brought into force by enactment into
law to ensure that this Treaty would supersede any earlier,
inconsistent legislation.
---------------------------------------------------------------------------
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
history. 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 South
Africa, and 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\ but the treaty covers such proceedings.
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\3\ The requirement that assistance be provided under the Treaty at
the pre-indictment stage is critical to the United States inasmuch as
U.S. 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 United States must
assist South Africa under the Treaty in connection with investigations
prior to charges being filed in South Africa.
\4\ One U.S. 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 at the investigatory
stage, or 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.
\5\ See, Title 21, United States Code, Section 881; Title 18,
United States Code, Section 1964. The U.S. and South African
delegations also discussed the fact that some U.S. agencies such as the
Securities and Exchange Commission have both criminal and civil
responsibilities, and occasionally must investigate activity thoroughly
before deciding whether to pursue the matter by civil or administrative
sanctions or refer it for criminal prosecution. The delegations agreed
that in such cases the matter could be considered ``proceedings related
to criminal matters'' if the investigating agency and the Central
Authority in the Requesting State believe, in good faith, that a
criminal prosecution is a possibility.
---------------------------------------------------------------------------
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 makes it clear that there is no requirement of
dual criminality under this Treaty for cooperation. Thus,
assistance is to 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 South Africa criminal laws differ
significantly, and a dual criminality rule would make
assistance unavailable in many significant areas.
Paragraph 4 contains a standard provision in U.S. 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 South Africa 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 designate a ``Central
Authority'' to make and receive Treaty requests. The Central
Authority of the United States would make all requests to South
Africa on behalf of federal agencies, state agencies, and local
law enforcement authorities in the United States. The Central
Authority of South Africa would make all requests emanating
from officials in South Africa.
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 proper agency, court, or other
authority (which in the United States may be federal or state)
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.\7\ Article 2(2) of the Treaty also states that ``the
Director-General: Department of Justice'' of South Africa or a
person designated by that official will serve as the Central
Authority for South Africa.\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\ The Director General is designated Central Authority under the
International Co-operation in Criminal Matters Act, 1996 (Act No. 75 of
1996), but the South African delegation anticipated that new
legislation will be needed to implement this treaty, which might
transfer the Central Authority function to another office.
---------------------------------------------------------------------------
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, facsimile, or any other means, at
the option of the Central Authorities themselves. The paragraph
also states that in exceptional circumstances the Central
Authorities may effect communication with each other through
diplomatic channels or through the International Criminal
Police Organisation (INTERPOL). Similar provisions appear in
some other recent U.S. mutual legal assistance treaties.\9\ The
delegations agreed that while use of diplomatic channels may be
useful in rare cases involving requests of extraordinary
diplomatic sensitivity, it is not anticipated that this option
would be utilized routinely, or often, since an important goal
of this Treaty is to encourage direct communication between the
law enforcement communities of the two Parties.
---------------------------------------------------------------------------
\9\ See, e.g., U.S.-Korea Mutual Legal Assistance Treaty, signed at
Washington November 23, 1993, entered into force May 23, 1997, art.
2(2).
---------------------------------------------------------------------------
Article 3--Limitations on Assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty. These
restrictions are similar to those found in other mutual legal
assistance treaties.
Paragraph (1)(a) permits the denial of a request if
execution of the request relates to an offense that is
considered by the Requested State to be a political offense.
Paragraph (1)(b) permits the Central Authority of 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.
Paragraph (1)(c) permits the Central Authority of the
Requested State to deny a request if execution of the request
would prejudice the national security or any other 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 phrase ``national
security'' would include cases in which assistance might
involve disclosure of information that is classified for
national security reasons. It is anticipated that the U.S.
Department of Justice, as Central Authority for the United
States, will 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 that occurred in the Requested
State and is constitutionally protected in that State.
However, it was agreed that ``essential interests'' could
also 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 U.S. Central Authority may invoke
paragraph 1(b) to decline to provide information pursuant to a
request under this Treaty if 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 a felony,
including facilitation of the production or distribution of
illegal drugs.\10\
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\10\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with, e.g., Luxembourg, Hong Kong, Poland and Barbados. See,
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy
Assistant Attorney General, Criminal Division, United States Department
of Justice).
---------------------------------------------------------------------------
Paragraph (1)(d) permits a request to be denied if it is
not made in conformity with the Treaty.
Paragraph 2 is similar to Article 4(2) of the U.S.-South
Africa Extradition Treaty signed September 16, 1999, and
identifies five categories of offenses that are not to be
considered ``political offenses'' for which assistance can be
denied under this Article.
First, the political offense exception does not apply where
there is a murder or other violent crime against the person of
a Head of State or Deputy Head of State of the Requesting or
Requested States, or a member of such persons'' family. This
clause covers a Deputy Head of State because in South Africa
the Deputy Head of State acts as Head of State in the Head of
State's absence or incapacity.
Second, the political offense exception does not apply to
offenses included in a multilateral treaty, convention, or
international agreement that requires the parties to either
extradite the person sought or submit the matter for
prosecution, such as, for instance, the Convention for the
Suppression of Unlawful Seizures of Aircraft, done at the Hague
on 16 December 1970 (entered into force for South Africa 29
June 1972), 22 UST 1641, TIAS 7192.
Third, the political offense exception does not apply to
any offense that constitutes murder.
Fourth, the political offense exception does not apply to
an offense involving kidnaping, abduction, or any form of
unlawful detention, including the taking of a hostage.
Finally, the political offense exception does not apply to
conspiring or attempting to commit, or aiding, abetting,
inducing, counseling, or procuring the commission of, or being
an accessory before or after the fact to such an offense.
Paragraph 3 is similar to Article 3(2) of the U.S.-
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 the first paragraph of the article. For example, a 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 prosecution of a political offense (which would
be subject to refusal). This paragraph would permit the
Requested State to provide information on the condition that it
be used only in the routine criminal case. It is contemplated
that the Requested State will notify the Requesting State of
any proposed conditions before actually delivering the evidence
in question, thereby giving the Requesting State a chance to
indicate whether it is willing to accept the evidence subject
to the conditions. If the Requesting State accepts the evidence
subject to the conditions, it must honor the conditions.
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\11\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27
U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
Paragraph 4 requires the Central Authority of the Requested
State to 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 thereafter to
better prepare its requests.
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.'' If the
request is not in writing, it must be confirmed in writing
within 10 days unless the Central Authority of the Requested
State agrees otherwise. Each request shall be in English.
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 lists 11 kinds of
information that are important but not always crucial and that
must 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.
Article 5--Execution of Requests
Paragraph 1 requires each Central Authority to promptly
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 competent
authorities to do everything within their 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 South
Africa. Rather, it is anticipated that when a request from
South Africa requires compulsory process for execution, the
U.S. 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 Treaty.
The third sentence in Article 5(1) reads ``[t]he Courts of
the Requested State have authority to issue subpoenas, search
warrants, or other orders necessary to execute the request.''
This language specifically authorizes U.S. courts to use all of
their powers to issue subpoenas and other process to satisfy a
request under the Treaty. It also 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. Paragraph 2 states that the Central Authority of the
Requested State shall make all necessary arrangements for
representing the Requesting State in the execution of a request
for assistance. Thus, it is understood that if execution of the
request entails action by a judicial authority 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.
Paragraph 3, the subject of extensive discussion, provides
that ``[r]equests shall be executed in accordance with the laws
of the Requested State, including the terms of this Treaty.''
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 be followed in the execution of the request except
insofar as those procedures are prohibited by the law of the
Requested State. This provision is necessary for two reasons.
First, there are significant differences between procedures
that must be followed by U.S. and South African authorities in
collecting evidence in order to assure the admissibility of
that evidence at trial. For instance, under U.S. law documents
obtained abroad may be admitted in evidence if they are duly
certified and the defendant has been given fair opportunity to
test their authenticity.\12\ Since South African law contains
no similar provision, documents acquired in South Africa in
strict conformity with South African procedures might not be
admissible in U.S. courts. Furthermore, U.S. courts use
procedural techniques such as videotape depositions that simply
are not used in South Africa even though they are not forbidden
there.
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\12\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
Second, the evidence in question could be needed for
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.
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 investigation or
legal proceedings in that State. The paragraph also allows the
Requested State to provide the information to the Requesting
State subject to conditions needed to prevent interference with
the Requested State's proceedings.
It is anticipated that some U.S. 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, Paragraph 5 enables the Requesting State to call
upon the Requested State to use its best efforts 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 U.S. mutual
legal assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal
Assistance Treaty, signed at Washington January 16, 1998, entered into
force August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Central Authority of the Requesting State concerning progress
in execution 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--Authentication or Certification
Most mutual legal assistance treaties contain provisions on
the proper procedure for authenticating evidence supplied by
one State in response to requests by the other. Article 6 of
the South Africa treaty consolidates the provisions on
authentication and certification in a single article.
Paragraph 1 contains the authentication and certification
requirements for evidence furnished to the United States by
South Africa. Most U.S. treaties contain references to forms
for authenticating and certifying business records in the
article that discusses obtaining testimony or evidence, for
authenticating official government records in the article on
obtaining government records, and for certifying chain of
custody in the article on conducting searches and seizures
conducted pursuant to requests under the Treaty. Paragraph 1 of
this Article specifies that information or evidence provided
pursuant to Article 9 (business records) shall be authenticated
or certified using Form A;\14\ information or evidence
furnished pursuant to Article 10 (government records) shall be
authenticated using Form B;\15\ and information or evidence
provided pursuant to Article 16 (search and seizures) shall be
authenticated pursuant to Form E.\16\ In each case, the
information or evidence may also be authenticated in any other
manner that the U.S. Central Authority requests. The absence or
nonexistence of a business record or a government record may be
certified on Form C or Form D, respectively. The authentication
and certification requirements in Paragraph 1 are consistent
with U.S. law and the provisions of other U.S. treaties of this
kind. Paragraph 1(c) states that evidence authenticated or
certified by Forms A or B or certified by Form E shall be
admissible in evidence in the United States as proof of the
truth of the matters set forth therein.\17\
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\14\ Thus, the provision establishes a procedure for authenticating
business records in a manner essentially similar to Title 18, United
States Code, Section 3505.
\15\ Similarly, the Treaty establishes a procedure for
authenticating official foreign documents that is consistent with Rule
902(3) and (4) of the Federal Rules of Evidence and Rule 44, Federal
Rules of Civil Procedure.
\16\ By providing that the certificates describing continuity of
custody will be admissible without additional authentication at trial
in the Requesting State, the article relieves 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.
\17\ Article 6(1)(c) provides that the evidence authenticated by,
e.g., 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.
---------------------------------------------------------------------------
Paragraph 2 outlines the authentication and certification
requirements that will apply upon request by the Republic of
South Africa to documents or articles of evidence furnished to
South Africa by the United States. It provides that the
substantive form of such authentication and certification is to
be communicated by the Central Authority of the Republic of
South Africa from time to time. It also requires that all
documents provided by the United States to the Republic of
South Africa be accompanied by an apostille, set forth as Form
F.
Article 7--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 U.S. mutual legal assistance treaties.\18\ Article 7 does
obligate 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 11, 12 and 13. During the negotiations, it was
discussed and agreed that this provision obligates the
Requested State to assume the costs of representation. Since
the cost of retaining counsel abroad to present and process
letters rogatory is sometimes quite high, this provision for
reciprocal legal representation is a significant advance in
international legal cooperation between the United States and
South Africa. 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.
---------------------------------------------------------------------------
\18\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty,
signed at Washington February 4, 1998, entered into force May 7, 2000,
art. 6.
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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 8--Limitations on Use
Paragraph 1 states that the Central Authority of the
Requested State may require that the Requesting State not use
any information or evidence provided under the Treaty in any
investigation, prosecution, or proceeding other than that
described in the request without the prior consent of the
Central Authority of the Requested State. If such a use
limitation is required, the Requesting State must comply with
the requirement. It will be recalled that Article 4(2)(d)
states that the Requesting State must specify the purpose for
which the information or evidence 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 furnishes to the Requesting
State be kept confidential. The delegations agreed that
conditions of confidentiality would be imposed only when
necessary and would be 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 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 State. Paragraph 2
requires that if the Requesting State accepts conditions of
confidentiality, it shall 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 that
prevent the Requesting State from using it.
The South Africa 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 such a condition.
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 criminal proceedings.\19\ During the
negotiations, the South African delegation indicated that its
courts might discern a similar obligation in South Africa's
constitution. The Requesting State shall notify the Requested
State of any such proposed disclosure in advance thereof.
---------------------------------------------------------------------------
\19\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
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. When 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 8 are for the benefit of the
two nations that are the parties to the Treaty, and the
invocation and enforcement of these provisions are left
entirely to the Parties. If a person alleges, for instance,
that a South African authority has used 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 9--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 give statements or
produce items, including documents and 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 any persons specified in the
request (e.g., the defendant and his counsel in criminal cases)
shall be permitted by the Requested State to be present and
allowed to question the person giving the testimony or
evidence.
Paragraph 4 states that if a witness asserts a claim of
immunity, incapacity, or privilege under the laws of the
Requesting State, the Requested State will take the 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\ It is understood that when a person asserts a
claim of immunity, incapacity, or privilege under the laws of
the Requested State, that claim shall be resolved in accordance
with the law of the Requested State. This is consistent with
Article 5(3) and 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 South Africa is
guaranteed the right to invoke any of the testimonial
privileges (e.g., attorney-client, inter-spousal) 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.\21\ A witness testifying in South Africa may raise
any of the similar privileges available under the law of South
Africa.
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\20\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty,
signed at Bridgetown February 28, 1996, and entered into force March 3,
2000, art. 8(4).
\21\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Article 10--Official Records
Paragraph 1 obliges each State to furnish the other with
copies of publicly available records, including documents or
information in any form, in the possession of organs of State
and government departments and agencies in the Requested State.
The term ``organs of State and 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 undertaking 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 such 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 South African
delegation stated that, as a general proposition, the United
States can expect to receive nonpublic information in
government files if South African law enforcement authorities
have access to it.
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 U.S. 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 where such information would be
available to U.S. law enforcement authorities. The South
African delegation stated that although the treaty provided for
assistance with respect to tax offenses, South Africa would not
provide the United States with records from South African tax
officials for any offenses pursuant to the Treaty. They
explained that their tax authorities take a very narrow view of
their legal ability to share information with other agencies
and steadfastly refuse to share tax records with South African
prosecutors or investigators pursuing non-tax cases, much less
with U.S. prosecutors or investigators under the MLAT.
Therefore, the delegations did not view this Treaty as a
``convention for the exchange of tax information'' for purposes
of Title 26, United States Code, Section 6103(k)(4), and the
United States would not have the discretion to provide tax
return information to South Africa under this article in
appropriate cases.\22\
---------------------------------------------------------------------------
\22\ Thus, this Treaty is unlike any of the other U.S. bilateral
mutual legal assistance treaties in that it does not authorize the
Parties to provide tax return information in appropriate circumstances.
---------------------------------------------------------------------------
Article 11--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite persons in the Requested State to travel to
the Requesting State to appear before an appropriate authority
in that State. The Central Authority of the Requested State
shall inform the Central Authority of 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 7. Therefore,
paragraph 1 provides that the Requesting State must indicate to
the Requested State the extent to which the person's expenses
will be paid. 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.
Paragraph 2 provides that the Central Authority of the
Requesting State may, in its discretion, determine that a
person appearing in the Requesting State under this article
shall not be subject to service of process, or be detained or
subjected to any restriction of personal liberty by reason of
acts or convictions that preceded the person's departure for
the Requesting State 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 under this article or at a later time.
Paragraph 3 states that any safe conduct provided under
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
Central Authority of the Requesting State may extend the safe
conduct up to fifteen days if it determines that there is good
cause to do so.
Article 12--Transfer of Persons in Custody
In criminal cases, a need sometimes arises for the
testimony in one country of a witness in custody in another
country. In some instances, a foreign country has been willing
and able to ``lend'' witnesses to the U.S. 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 other occasions, the U.S. Justice Department
has arranged for consenting federal inmates in the United
States to be transported to foreign countries to assist in
criminal proceedings.\23\ On a few occasions, a person in
custody in the United States on a criminal matter has sought
permission to travel to another country to be present at the
deposition of a witness whose testimony may subsequently be
introduced into evidence at the defendant's criminal trial in
the United States.\24\
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\23\ For example, in September, 1986, the U.S. Justice Department
and the U.S. 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.
\24\ 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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Article 12 provides an express legal basis for cooperation
in these matters. Upon request, a person in custody in either
State whose presence is requested for purposes of assistance
under this Treaty may be transferred from the custody of one
State to the custody of the other State for that purpose
provided that the person and the Central Authorities of both
States agree, and that the receiving State agrees to adhere to
any terms and conditions set by the transferring State. These
terms and conditions may include: (1) that the receiving State
have the authority and the obligation to keep the person
transferred in custody unless authorized to release the person
by the sending State; (2) that the receiving State return the
person to the sending State's custody as soon as circumstances
permit or as otherwise agreed by both Central Authorities; (3)
that the receiving State not require the sending State to
initiate extradition proceedings to recover custody of the
person; and (4) that any time the person transferred spends in
the receiving State will be credited against the sentence
remaining to be served in the sending State.
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.
South Africa does not currently have the ability to
transfer persons in custody to another country or to hold such
persons if transferred to it. The delegations agreed to include
this provision in the event that South Africa develops such
authority in the future. The language makes clear that such
transfers are discretionary.
Article 13--Transit of Persons in Custody
Article 12 contemplates that persons in custody may be
moved from State to State for purposes of mutual assistance,
and it is reasonable to anticipate situations in which one
State may need to bring persons in custody through the other on
the way to or from third States. Article 13 provides the legal
framework for such transit. Similar articles appear in other
recent U.S. mutual legal assistance treaties.\25\
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\25\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 11.
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Paragraph 1 states that a Requested State may authorize the
transit through its territory of a person whose personal
appearance has been requested in investigations, prosecutions,
or proceedings in the Requesting State. Paragraph 2 provides
that where such transit is authorized, the Requested State
shall have the authority and obligation to keep the person in
custody during transit in accordance with the laws of the
Requested State, including the terms of this Treaty. As with
Article 12, this article is included in the event that South
Africa develops authority to transfer and hold such persons.
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 use its ``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 that 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 15--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 most U.S. mutual legal assistance
treaties.\26\
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\26\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty,
signed at Washington January 16, 1998, entered into force August 26,
1999, art. 13.
---------------------------------------------------------------------------
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 South Africa 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 must be transmitted by the Central Authority of
the Requesting 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 items needed
in the former as evidence or for other purposes. U.S. courts
can and do execute such requests under Title 28, United States
Code, Section 1782.\27\ This article creates a formal framework
for handling such requests similar to provisions in many other
U.S. mutual legal assistance treaties.\28\
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\27\ For example, in 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.), a search warrant was issued on February 24,
1984, based on a request under Title 28, United States Code, Section
1782.
\28\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 15.
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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 South Africa will have to be supported
by a showing of probable cause for the search. A U.S. request
to South Africa would have to satisfy the corresponding
evidentiary standard there, which is ``a reasonable basis to
believe'' that the specified premises contains items likely to
be evidence of the commission of an offense.
Paragraph 2 is designed to ensure that a record is kept of
items seized and delivered up under the Treaty. This provision
requires that, upon request, every official who has custody of
a seized item shall certify the continuity of custody, the
identity of the item, and any changes in its condition.
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.
Article 17--Return of Items
This article provides that any documents, records, or items
furnished under the Treaty may be required to 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 require return of the items,
but this is a matter best left to development in practice.
Article 18--Assistance in Forfeiture Proceedings
A major goal of the Treaty is to enhance the efforts of
both the United States and South Africa in combating narcotics
trafficking. One significant strategy in this effort in the
United States is action by authorities to seize and confiscate
money, property, and other proceeds of drug trafficking.
This article is similar to a number of U.S. mutual legal
assistance treaties, including Article 16 of the U.S.-Barbados
Mutual Legal Assistance Treaty and Article 17 of the U.S.-
Latvia Mutual Legal Assistance Treaty. Paragraph 1 authorizes
the Central Authority of one State to inform the other of the
existence in the latter's territory of proceeds of crimes or
instrumentalities that may be forfeitable or otherwise subject
to seizure. The term ``proceeds of crimes 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 present this information to
its authorities for a determination whether an action is
appropriate. For instance, if the assets obtained by fraud in
South Africa are located in the United States, U.S. authorities
could act to seize them under Title 18, United States Code,
Section 981 in aid of a prosecution under Title 18, United
States Code, Section 2314.\29\ U.S. authorities could also seek
to secure a temporary restraining order in anticipation of a
civil action for the return of the assets to the lawful owner.
Proceeds of a foreign kidnaping, 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.\30\ 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. South Africa too has
legislation on this issue that enables it to seize and
confiscate assets in criminal cases.\31\
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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. Proceeds of such
activity become subject to forfeiture pursuant to Title 18, United
States Code, Section 981 by way of Title 18, United States Code,
Section 1956 and Title 18, United States Code, Section 1961. The
forfeiture statute applies to property involved in transactions in
violation of section 1956, which covers any activity constituting an
offense defined by section 1961(1), which includes, among others, Title
18, United States Code, Section 2314.
\30\ Title 18, United States Code, Section 1956(c)(7)(B).
\31\ South Africa Proceeds of Crime Act, 1996.
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If the assets are the proceeds of drug trafficking, it is
especially likely that the States 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 U.S. delegation expects that Article 18 of
the Treaty will enable this legislation to be even more
effective.
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\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, December 20,
1988.
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Paragraph 2 states that the States shall assist one another
to the extent permitted by their laws in proceedings relating
to (a) restraining or immobilizing proceeds of crimes or
instrumentalities or objects used in the commission of crimes;
(b) confiscation or forfeiture of such items; (c) recovery or
collection of fines imposed as sentences in criminal
proceedings; and (d) compensation or restitution to victims of
crime. The language of the article is carefully selected so as
not to require either State to take any action that would
exceed its internal legal authority. It does not, for instance,
mandate institution of forfeiture proceedings or initiation of
temporary immobilization in either country against property
identified by the other if the relevant prosecution officials
do not deem it proper to do so.\33\
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\33\ In South Africa, unlike the United States, the law does not
allow for civil forfeiture. However, South Africa law permits
forfeiture in criminal cases, and ordinarily a defendant must be
convicted in order for South Africa to confiscate the defendant's
property.
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U.S. 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 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.\34\
Paragraph 3 is consistent with this framework and will enable a
State having custody over proceeds or instrumentalities of
offenses to transfer forfeited assets, or the proceeds of the
sale of such assets, to the other State, at the former's
discretion and to the extent permitted by their respective
laws. The South African delegation assured the United States
that South Africa would also share with the United States a
portion of assets confiscated there with U.S. assistance.
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\34\ See, Title 18, United States Code, Section 981(i)(1).
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Article 19--Compatibility with Other Arrangements
This article states that assistance and procedures set
forth in this Treaty shall not prevent either State from
granting assistance to the other State through the provisions
of other applicable international agreements. Article 18 also
states that the States may provide assistance pursuant to any
bilateral arrangement, agreement, or practice that may be
applicable. The Treaty would leave the provisions of U.S. and
South African law on letters rogatory completely undisturbed,
and would 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 states that the
Central Authorities will share those ideas with one another,
and will 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. Similar
provisions are contained in recent U.S. mutual legal assistance
treaties. It is anticipated that the Central Authorities will
conduct regular consultations pursuant to this article.
Article 21--Application
This Treaty, like many other U.S. mutual legal assistance
treaties negotiated in the past two decades, is expressly made
retroactive, and covers assistance contemplated in Article 1
whether the acts occurred before, on, or after the date upon
which the Treaty entered into force. At South Africa's request,
Article 21 also states that nothing in the treaty shall be
deemed to require or authorize action by the Requested State
contrary to the constitution of that State. Somewhat similar
provisions appear in many U.S. treaties of this kind, and the
provision is consistent with the Understanding routinely
included in Senate resolutions of advice and consent to
ratification of mutual legal assistance and extradition
treaties.
Article 22--Ratification, Entry Into Force, and Termination
Paragraph 1 states that the Treaty is subject to
ratification and that the instruments of ratification are to be
exchanged as soon as possible.
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 receipt of written
notification. Similar termination provisions are included in
other U.S. mutual legal assistance treaties.
------
Technical Analysis of the Treaty Between the United States of America
and Ukraine on Mutual Legal Assistance in Criminal Matters
On July 22, 1998, the United States signed a Treaty Between
the United States of America and Ukraine on Mutual Legal
Assistance in Criminal Matters (``the Treaty''). The Treaty
with Ukraine 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. Due to the urgent need for immediate
transnational law enforcement cooperation, on September 30,
1999, the U.S. and Ukraine exchanged diplomatic notes pledging
that until such time as the Treaty enters into force the terms
of the Treaty will be applied, provisionally, to the extent
permitted under the laws of the respective States.
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.
It is anticipated that the Treaty will be implemented in
the United States largely pursuant to the procedural framework
provided by Title 28, United States Code, Section 1782. Ukraine
currently has no specific mutual legal assistance law.
Ukraine's delegation advised us that under Ukraine
jurisprudence, the terms of the Treaty would take precedence
over the silence in Ukrainian domestic law and, in case of a
conflict between the Treaty and future Ukraine 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
history. 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 Contracting States 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
``investigation'' includes a grand jury proceeding in the
United States and any similar pre-charge proceedings in
Ukraine, and other legal measures taken prior to the filing of
formal charges in either State.\1\ The term ``proceeding'' 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 United States must assist Ukraine
under the Treaty in connection with investigations prior to charges
being filed in Ukraine.
\2\ One U.S. 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, 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.
Paragraph 3 specifies that there is no requirement of dual
criminality under this Treaty for cooperation. 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, Ukraine 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; and antitrust violations.
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 Ukraine 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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\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 State shall have a Central
Authority to make and receive requests pursuant to the Treaty.
Article 2(4) states that the Central Authorities shall
communicate directly with one another.
Article 2(2) designates the Attorney General of the U.S. 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.\5\ The Central Authority of the United States would
make all requests to Ukraine on behalf of federal agencies,
state agencies, and local law enforcement authorities in the
United States. It would also be responsible for receiving each
request, transmitting it to the proper agency, court or other
authority (which, in the United States, may be federal or
state) for execution, and ensuring that a timely response is
made.
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\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).
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Article 2(2) also states that the Central Authority for
Ukraine shall be the Ministry of Justice and the Office of the
Prosecutor General.\6\ This dual Central Authority arrangement
for Ukraine was requested by Ukraine because its constitution
and law prescribe distinct and separate responsibilities to the
Office of the Prosecutor General and the Ministry of
Justice.\7\ The Ukraine delegation explained that the Office of
the Prosecutor General is empowered to make requests from
Ukraine to foreign authorities for assistance in criminal
investigations, but a court in Ukraine could also seek foreign
evidence in connection with a criminal trial, and in such cases
requests would be made through the Ministry of Justice. The
Ministry of Justice in Ukraine is also responsible for handling
requests from foreign authorities for assistance that involve
documents or evidence located exclusively in a Ukrainian court,
e.g., an authenticated copy of the sentence imposed on a
convicted person. Other requests from outside Ukraine would be
handled by the Office of the Prosecutor General, without
distinction between whether the request involves a matter at
the investigation or prosecution stage. The Ukrainian
delegation told the U.S. delegation that, in practice, the U.S.
Central Authority should send all requests to the Office of the
Prosecutor General, and if the matter is one that Ministry of
Justice should handle, the Office of the Prosecutor General
will promptly forward the request to the Ministry and inform
the United States that it has done so.
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\6\ This is similar to Article 2(2) of the U.S.-Hungary Mutual
Legal Assistance Treaty, December 1, 1994, which provides that the
Hungarian Minister of Justice and Office of the Chief Public Prosecutor
will serve as a dual Central Authority, and Article 2(1) of the U.S.-
Lithuania Mutual Legal Assistance Treaty, signed at Washington January
16, 1998, entered into force August 26, 1999, which provides that the
Lithuanian Central Authority will be the Office of the Prosecutor
General and the Ministry of Justice.
\7\ The International Affairs Department of Ukraine's Ministry of
Justice and the International Legal Relations Department of Ukraine's
Office of the Prosecutor General were both represented during the
negotiations.
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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. Specifically, Article 2(3)
states that each Central Authority shall only make requests
that it has considered and approved, and that the Central
Authority of the Requesting State shall use its ``best
efforts'' to ensure that no request is made where, in its view:
(1) the offense on which the request is based does not have
serious consequences, or (2) the assistance requested is
disproportionate to 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, facsimile, 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. These
restrictions are similar to those found in other mutual legal
assistance treaties.
Paragraph (1)(a) permits the Central Authority of the
Requested State to deny a request that relates to 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.'' \8\
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\8\ Although there is no extradition treaty in force between the
United States and Ukraine, this same principle has been incorporated in
many U.S. Mutual legal assistance treaties, and it is anticipated that
the jurisprudence on political offense developed under other treaties
would be applicable.
---------------------------------------------------------------------------
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 U.S. 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 also was agreed that ``essential interests'' could 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 U.S. Central Authority may invoke Paragraph
1(c) to decline to provide information pursuant to a Treaty
request if 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 a felony, including the
facilitation of the production or distribution of illegal
drugs.\9\
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\9\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with e.g. Luxembourg, Hong Kong, Poland and Barbados. See,
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2d Sess., 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 does
not conform to the requirements of the Treaty. This was
intended to refer to the requirements of Article 4 of the
Treaty.
Paragraph 2 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\10\ and obligates
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 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 prosecution of a political offense
(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, signed at
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27
U.S.T. 2019, T.I.A.S. No. 8302, 1052 U.N.T.S. 61.
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Paragraph 3 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 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 States that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified.
Article 5--Execution of Requests
Paragraph 1 requires that each Central Authority promptly
execute requests, or, where appropriate, transmit them 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 competent
authorities within the Requested State to do everything within
their 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 Ukraine. Rather, it is anticipated that when a
request from Ukraine 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 competent
authorities of the Requested State shall have authority to
issue subpoenas, search and arrest warrants, or other orders
necessary to execute the request.'' This language 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 Ukraine delegation said that in Ukraine, public
prosecutors as well as courts are empowered to ``issue
subpoenas, search warrants, or other orders necessary to
execute the request,'' and this provision was intended to
insure that those prosecutors can and do use that power to
execute requests from the United States. The 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.
Paragraph 2 provides 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. Thus, it is understood that if
execution of the request entails action by a judicial authority
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. 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 Ukraine 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.
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, the method of
executing a request for assistance under the Treaty must be in
accordance with the Requested State's internal laws absent
specific procedures in the Treaty itself. For the United
States, the Treaty is intended to be self-executing; no new
legislation is needed to carry out U.S. obligations under the
Treaty.
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 U.S. and Ukraine
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, United
States law permits documents obtained abroad to be admitted in
evidence if they are duly certified and the defendant has been
given fair opportunity to test its authenticity.\11\ Since
Ukraine's law contains no similar provision, documents acquired
in Ukraine in strict conformity with Ukrainian procedures might
not be admissible in United States courts. Furthermore, United
States courts use procedural techniques such as videotape
depositions that simply are not used in Ukraine even though
they are not forbidden there.
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\11\ 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.
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.
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 paragraph also allows the Requested State to provide
information sought to the Requesting State subject to
conditions needed to avoid interference with the Requested
State's proceedings.
It is anticipated that some U.S. 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 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.\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.
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\12\ This provision is similar to language in other U.S. mutual
legal assistance treaties. See, e.g., U.S.-Lithuania Mutual Legal
Assistance Treaty, signed at Washington January 16, 1998, entered into
force August 26, 1999, 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
Central Authority of 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 inform the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is denied, 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 U.S. mutual legal assistance treaties.\13\ Article 6
does, however, oblige the Requesting 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 (i.e., in transit under Article 12) or
pursuant to Articles 10 and 11.
---------------------------------------------------------------------------
\13\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty,
signed at Washington February 4, 1998, entered into force May 7, 2000,
art. 6.
---------------------------------------------------------------------------
During the negotiations it was discussed and agreed that
this provision obligates the Requested State to assume the
costs of representation. Since the cost of retaining counsel
abroad to present and process letters rogatory is sometimes
high, this provision for reciprocal legal representation is a
significant advance in international legal cooperation between
the United States and Ukraine. 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 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 a use limitation is requested, the Requesting State
must comply with the conditions. It will be recalled that
Article 4(2)(d) requires the Requesting State to specify the
purpose for which 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. Conditions of confidentiality would
be imposed only when necessary, and would be 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
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 State.
Paragraph 2 requires that if the Requesting State accepts
conditions of confidentiality, it shall 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.
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.\14\ The paragraph also
states that the Requesting State shall notify the Requested
State in advance of any such use or disclosure.
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\14\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
Paragraph 4 states that once 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. When 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 recognized 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 in Article 7 are for the benefit of the
Contracting States, and the invocation and enforcement of these
provisions are left entirely to the Contracting States. Thus,
if a person alleges that U.S. authority seeks to use
information or evidence obtained from Ukraine in a manner
inconsistent with this article, the allegations would be a
matter for consideration as between the Contracting States.
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 Paragraph 1 explicitly states 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 in
that State.\15\
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\15\ See, Title 18, United States Code, Section 1621.
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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 any persons specified in the
request, shall be permitted by the Requested State to be
present during the execution of the request, and such person
shall be allowed to question the person during the giving of
testimony under this article. The Ukraine delegation explained
that when a deposition is taken in Ukraine pursuant to a
request from the United States, the U.S. prosecutor, the
defendant, the defense counsel, and any technical staff needed
to conduct the questioning (e.g., court reporter, videotape
machine operator) would be permitted to be present at the
proceedings. Neither the U.S. prosecutor or the defense can
directly question witnesses during such proceedings in Ukraine,
but they would be permitted to propose questions to be posed to
the witness by Ukrainian law enforcement. The official record
of the deposition would usually be prepared by Ukraine
officials, and it would reflect the role played by U.S.
officials during the deposition.
Paragraph 4 states that if a witness whose testimony or
evidence is sought asserts a claim of immunity, incapacity, or
privilege under the laws of the Requesting State, the Requested
State will nonetheless take the testimony or evidence and
notify the Central Authority of the Requesting State in writing
of the claim for resolution by the competent authorities of
that State. 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\ 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. It is understood that when a person asserts a claim of
immunity, incapacity, or privilege under the laws of the
Requested State, that claim shall be resolved in accordance
with the law of the Requested State. This is consistent with
Article 5(3) and 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 Ukraine is guaranteed
the right to invoke any of the testimonial privileges (e.g.,
attorney-client, inter-spousal) 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\ Both
States recognize the privilege of witnesses against self-
incrimination. The Ukraine delegation also indicated that
privileges available under Ukraine law include a doctor-patient
privilege and an attorney-client privilege.
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\16\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty,
signed at Bridgetown February 28, 1996, and entered into force March 3,
2000, art. 8(4).
\17\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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The United States would probably invoke Article 8 of the
Treaty to obtain copies of bank or business records in Ukraine.
One controversial issue encountered during the negotiations
involved the ability of U.S. authorities to gain access to bank
records in Ukraine under this Treaty. The Ukraine delegation
assured the United States that Ukraine would honor U.S.
requests under the Treaty for bank records to the extent
possible under Ukraine law. While the talks were underway,
however, Ukraine enacted regulations that authorized the
establishment of anonymous bank accounts.\18\ Since the
beneficial owners of such accounts could keep their true
identity hidden from the officials at the bank where the
account is maintained, it would be virtually impossible for
Ukraine law enforcement to investigate suspicious transactions
or effectively aid U.S. investigations involving Ukraine banks.
These regulations on anonymous accounts undermined joint
efforts to combat transnational crime because bank account
information is frequently essential in the investigation of
drug trafficking, money laundering, financial offenses, and
other major crimes, and anonymous bank accounts deprive law
enforcement officials of critically important information that
is needed in order to trace the proceeds of illegal activity to
reliably identify those who commit crime. For these reasons,
the U.S. refused to sign the Mutual Legal Assistance Treaty
until Ukraine repealed its anonymous bank secrecy
regulations.\19\ On July 21, 1998, Ukraine President Kuchma
issued a new decree forbidding anonymous bank accounts,\20\ and
the Mutual Legal Assistance Treaty was signed the following
day, on July 22, 1998. The U.S. delegation anticipates no
difficulty in obtaining access to bank and business records in
Ukraine pursuant to this Treaty.
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\18\ Decree of the President of Ukraine #679 on the Opening of
Anonymous Hard Currency Accounts of Physical Persons (Resident and Non-
resident), September 1, 1995.
\19\ The United States also postponed exchanging instruments of
ratification on the U.S.-Ukraine Convention for the Avoidance of Double
Taxation on Income and Capital, with Protocol, March 4, 1994 (approved
by the U.S. Senate August 1995).
\20\ Decree of the President of Ukraine #805 On Some Issues
Pertaining to the Protection of Banking Secrets, July 21, 1998. This
decree also repealed the prior decree that authorized the establishment
of secret accounts, note 18, supra.
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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 shall be certified by the
appropriate form attached to the request. To authenticate
business records, the delegations agreed to use Form A,
included in the Annex 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 foreign business records authentication statute. The
absence or nonexistence of such records will be certified
through the use of Form B, also included in the Annex. This
paragraph also provides that records authenticated by Form A,
or Form B certifying the absence or non-existence of business
records shall be admissible in evidence in U.S. courts. With
respect to the United States, this paragraph is self-executing,
and does not need implementing legislation.
The admissibility provided by this paragraph extends only
to authenticity and not to matters such as relevance and
materiality; 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 State 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. Such authorities
include units of the federal, state, and local level in each
country.
Paragraph 2 provides that the Requested State may also
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. The undertaking to share
such information is only ``to the same extent and under the
same conditions as such copies would be available to its own
law enforcement or judicial authorities.'' Furthermore, the
Requested State may in its discretion deny a request under this
paragraph entirely or in part. 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 the extent to which such information will be shared
and under what conditions.
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,
like most other U.S. mutual legal assistance treaties, 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 Ukraine under this article in appropriate
cases.\21\
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\21\ Under Title 26, United States Code, Section 6103(i),
information in the files of the Internal Revenue Service (generally
protected from disclosure under Title 26, United States Code, Section
6103) may be disclosed to federal law enforcement personnel in the
United States for use in 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 Ukraine through this Treaty when, in a criminal investigation or
prosecution, the Ukrainian 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 Ukraine request for tax returns
to be used in a non-tax criminal investigation, in accordance with
Title 26, United States Code, Section 6103((i)1)(A), would have to
specify that the Ukraine law enforcement authority is:
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personally and directly engaged in
(i) preparation for any judicial or administrative proceeding
pertaining to the enforcement of a specifically designated
Ukraine criminal statute (not involving tax administration) to
which Ukraine is or may be a party.
(ii) any investigation which may result in such a proceeding,
or
(iii) any Ukraine proceeding pertaining to enforcement of
such a criminal statute to which Ukraine is or may be a party.
(See Title 26, United States Code, Section 6103(i)(1)(A))
Any request for such documents 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
Title 26, United States Code, Section 6103(i)(1)(B). Before issuing
such an order, the judge or magistrate would have to determine, also in
accordance with Title 26, United States Code, Section 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 Ukrainian 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, Ukraine law enforcement authorities seeking tax returns
would be treated as if they were United States law enforcement
authorities, including 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, if specified in a request, through
the use of the appropriate form attached to the request. The
delegations agreed that, in response to a request by the United
States, records provided would be certified using Form C,
included in the Annex to the Treaty and the absence or
nonexistence of such records through the use of Form D, also
included in the Annex. Records authenticated under this
paragraph or the form certifying the absence or non-existence
of such records 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. The admissibility provided by
this paragraph extends only to authenticity and not to matters
such as relevance and, materiality. 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--Testimony or Evidence 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.
The Requesting State would be expected to pay the expenses
of such an appearance pursuant to Article 6. Therefore,
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
paragraph also specifies that 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. 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 under this article or thereafter.
Paragraph 4 states that any safe conduct provided under
this article shall cease 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 within seven
days 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 U.S. 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 U.S. 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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Article 11 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\ It is anticipated that,
where the receiving State is a third state, the Requesting
State will make all arrangements necessary to meet the
requirements of this paragraph.
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\23\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at
Bern May 25, 1973, entered into force January 23, 1977, art. 26.
\24\ It is also consistent with 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 1 provides that persons in custody in the
Requested State whose presence outside of that State is sought
for purposes of assistance under this Treaty, such as providing
testimony in a criminal prosecution, may be transferred in
custody for that purpose if the person consents and the Central
Authorities of both states agree.
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.\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(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) 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 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 being returned to the
sending State.
In keeping with the obligation to return a person
transferred under this article, paragraph 3(c) explicitly
prohibits the State to whom a person is transferred from
requiring the transferring State to initiate extradition or any
other proceedings before the status quo is restored by the
return of the person transferred.
Paragraph 3(d) states that the person transferred will
receive credit in the sending State for the time in custody in
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--Transit of Persons in Custody
Article 11 contemplates that persons in custody will be
moved from State to State for purposes of mutual assistance,
and it is reasonable to anticipate situations in which one
State may need to bring persons in custody through the other on
the way to or from third States. Article 12 provides the legal
framework for such transit. Similar provisions appear in other
recent U.S. mutual legal assistance treaties.\26\
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\26\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 11.
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Paragraph 1 gives each State the power to authorize transit
through its territory of a person being transferred to the
other State by a third state. Paragraph 2 obligates and
authorizes each State to keep in custody a person during the
transit period. It is expected that requests for transit would
contain a description of the person being transported and a
brief statement of the facts of the case for which the person
is sought. While transit authorization under this article is
always discretionary, Paragraph 3 specifically states that each
State may refuse transit of its nationals.
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. 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 in whole or in part to a Treaty request. Identical
provisions appear in most U.S. mutual legal assistance
treaties.\27\
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\27\ U.S.-Lithuania Mutual Legal Assistance Treaty, signed at
Washington January 16, 1998, entered into force August 26, 1999, art.
13.
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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 Ukraine 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 Central Authority of
the Requesting 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.\28\ This article
creates a formal framework for handling such requests and is
similar to provisions in many other United States mutual legal
assistance treaties.\29\
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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 based on a
request under Title 28, United States Code, Section 1782).
\29\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed
at Washington June 13, 1997, entered into force September 17, 1999,
art. 15.
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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 Ukraine will have to be supported by a
showing of probable cause for the search. A U.S. request to
Ukraine 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 delivered up under the Treaty. This
provision requires that, upon request, every official who has
custody of a seized item shall certify, through the use of a
form attached to the request, the identity of the item, the
continuity of custody, and any changes in its condition. The
delegations agreed that, at least for requests by the United
States, the form will be as set forth in Form E in the Annex to
the Treaty.
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, thus relieving the Requesting State of the burden,
expense, and inconvenience of having to send its law
enforcement officers to the Requested State to provide
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.
During the negotiations, the delegations discussed
including a fourth paragraph in this article that would
obligate 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.\30\ It was concluded that a specific provision was
unnecessary, but both delegations agreed that the Requested
State would be expected to use its best efforts to assist the
Requesting State's authorities in obtaining the transfer of
items without unnecessary delays that might otherwise be
encountered under the Requested State's import and export laws.
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\30\ Cf. U.S.-Lithuania Mutual Legal Assistance Treaty, signed at
Washington January 16, 1998, entered into force August 26, 1999, art.
15(4).
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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. 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 17--Assistance in Forfeiture Proceedings
The Treaty will enhance the efforts of both the United
States and Ukraine in combating narcotics trafficking. One
significant strategy in this effort by United States
authorities is action 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 16 of the U.S.-
Barbados Mutual Legal Assistance Treaty and Article 17 of the
U.S.-Latvia 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 Ukraine, 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,\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 kidnaping, 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 States 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 U.S. 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, December 20,
1988.
---------------------------------------------------------------------------
Paragraph 2 states that the States shall assist one another
to the extent permitted by their laws in proceedings relating
to the forfeiture of the proceeds and instrumentalities of
offenses, to restitution to crime victims, and 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. 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, for instance, 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 Ukraine, unlike the United States, the law does not
currently allow for civil forfeiture. However, Ukraine law does permit
forfeiture in criminal cases, and ordinarily a defendant must be
convicted in order for Ukraine to confiscate the defendant's property.
---------------------------------------------------------------------------
U.S. 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 State 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 State, at the former's discretion and to the extent
permitted by their respective laws.
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\35\ See, Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------
Ukraine's delegation stated that Ukrainian law allows the
Government to dispose of proceeds of most crimes, or valuables
obtained through illegal activities, and nothing in the law
prohibits sharing such crime proceeds with foreign governments.
Proceeds of drug offenses, however, ordinarily go into the
state treasury. Ukraine's delegation was confident, however,
that Ukraine would share a percentage of forfeited proceeds
with the United States, on a case-by-case basis.
Article 18--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 through the internal laws
of either country. It also provides that the States may provide
assistance pursuant to any bilateral arrangement, agreement or
practice that may be applicable. Thus, the Treaty would leave
the provisions of U.S. and Ukrainian law on letters rogatory
completely undisturbed, and would not alter any pre-existing
agreements concerning investigative assistance.\36\
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\36\ See, e.g., the U.S.-Ukraine Memorandum of Understanding
Concerning Cooperation in the Pursuit of Nazi War Criminals, signed at
Washington August 26, 1993, entered into force August 26, 1993; U.S.-
U.S.S.R. Agreement Relating to Procedure to be Followed on the
Execution of Letters Rogatory, signed at Moscow Nov. 22, 1935, entered
in force Nov. 22, 1935, 49 Stat. 3840, 11 Bevans 1262, 167 LNTS 303./
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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 States 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. It is
anticipated that the Central Authorities will conduct regular
consultations pursuant to this article.
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 states that the Treaty is subject to
ratification and that the instruments of ratification are to be
exchanged at Washington as soon as possible.
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 one Contracting State receives
written termination notification from the other. Similar
requirements are contained in our treaties with other
countries.
------
Technical Analysis of the Inter-American Convention on Mutual Legal
Assistance in Criminal Matters
On January 10, 1995, the United States signed the
Organization of American States (``OAS'') Inter-American
Convention on Mutual Legal Assistance in Criminal Matters
(``Convention''). This Convention was the first multilateral
treaty on mutual legal assistance signed by the United States.
It is similar to the bilateral mutual legal assistance treaties
which the United States has concluded with other countries in
this region and elsewhere.
This Convention grew out of [put in background about
Cartagena, Bush/Reagan, etc. 3 treaties--OAS Prisoner Transfer,
OAS MLAT, and OAS preventative measures, in return for
extraditions] a need to strengthen law enforcement cooperation
among members of the OAS, and to support the provisions of the
1988 United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances.1
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\1\ United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, with annex and final act, done at
Vienna, December 20, 1988, and entered into force for the United States
November 11, 1990, 28 I.L.M. 493 (March 1989). Article 7 of that
Convention obligates the parties to provide ``the widest measure of
mutual legal assistance in investigations, prosecutions and judicial
proceedings'' related to offenses established under the Convention.
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The negotiation of the OAS Convention began in 1986, when
the OAS Committee on Juridical and Political Affairs
established a Working Group to draft an Inter-American
Convention on Judicial Assistance. The Working Group's initial
draft of a convention was limited to mutual execution of
letters rogatory, and while a treaty with this limited approach
was acceptable to civil law Latin American countries, it was of
little value to common law countries. In 1988, the United
States delegation persuaded the Working Group to rewrite the
draft convention along the lines of the U.S.'s bilateral mutual
legal assistance treaties (MLATs) to make it more useful to all
nations in the hemisphere. The U.S. also encouraged common law
countries like Canada and Jamaica to become involved. As a
result, the draft was extensively revised, with representatives
of countries which have signed bilateral MLATs with the United
States (principally Canada, Mexico, Uruguay, Jamaica, and
Argentina) taking the lead in formulating provisions for the
convention consistent with the terms of the various bilateral
MLATs in the region.
The General Assembly of the OAS approved the text of the
Convention during its regular session in The Bahamas on May 23,
1993 (Resolution AG/RES. 1168 (XXII-0/92)and opened it for
signature at that time. The United States supported the treaty,
but would not sign it until a Protocol mandating assistance for
all tax offenses was also opened for signature. The Protocol to
this effect was approved by the General Assembly of the OAS
during the regular session in Managua, Nicaragua June 6, 1993
and was opened it for signature on January 1, 1994. The
Convention entered into force on April 4, 1996. As of August
21, 2000, the Protocol has not yet entered into 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
history. 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.
CHAPTER I--GENERAL PROVISIONS (Article 1-9)
Article 1--Purpose of the Convention
Article 1 obligates the states parties to render mutual
assistance in criminal matters.
Article 2--Scope and Application of the Convention
Paragraph one obligates States to provide assistance in
investigations, prosecutions and proceedings that pertain to
crimes over which the requesting State has jurisdiction at the
time the assistance was requested. The term ``investigation''
was understood to encompass grand jury proceedings in the
United States and the equivalent pre-charge proceedings in
other States, as well as committal proceedings and other legal
measures taken prior to the filing of formal
charges.2 The term ``proceedings that pertain to
crimes'' was intended to cover assistance in the full range of
proceedings related to criminal charges, including such matters
as bail and sentencing hearings.3 Furthermore, the
phrase ``proceedings that pertain to crimes'' is broader than
the investigation, prosecution or sentencing process itself,
and thus 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 but such proceedings are covered
by the Treaty.
---------------------------------------------------------------------------
\2\ The requirement that assistance be provided under the
Convention at the pre-indictment stage is very useful to the United
States, 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, and the
United States must assist other States under the Convention in
connection with investigations prior to charges being filed abroad.
\3\ One U.S. 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 1016 (2nd Cir. 1976); Fonseca v.
Blumenthal, 620 F.2d 322 (2nd 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 Title 21, United States Code, Section 881; Title 18, United
States Code, Section 1964.
---------------------------------------------------------------------------
Paragraph two states that the Convention does not create
any new jurisdiction or operational authority on the part of
one Party to undertake actions in the territory of the other.
This provision is based on Article 2(3) of the 1988 United
Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances, and is similar to language found
in other U.S. MLATs.5
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\5\ U.S.-Mexico Mutual Legal Assistance Treaty, signed at Mexico
December 9, 1987, entered into force May 3, 1991, art. 1(2); U.S.-
Uruguay Mutual Legal Assistance Treaty, signed at Montevideo May 6,
1991, entered into force April 15, 1994, art. 1(3).
---------------------------------------------------------------------------
Paragraph three contains a standard provision in United
States mutual legal assistance treaties providing that the
Convention is intended solely for government-to-government
mutual legal assistance. The Convention is not intended to
provide a means for private persons to gather evidence abroad.
Private litigants in the United States may continue to obtain
evidence from other countries by letters rogatory, an avenue of
international assistance which the Convention leaves
undisturbed. Similarly, this Convention is not intended to
create any new right in a private person to suppress or exclude
evidence thereunder.
Article 3--Central Authority
Article 3 of the Convention requires that each party
designate a ``Central Authority'' at the time of signature or
ratification of this Convention. The Central Authority will be
responsible for issuing and receiving requests for assistance.
The Central Authority of the United States will make all
requests under the Convention on behalf of federal agencies,
state agencies and local law enforcement authorities in the
United States. Early drafts of the convention did not contain
the concept of central authority at all, and this article was
one of the U.S. delegation's major contributions to the
negotiations.
The final paragraph establishes that the central
authorities shall communicate directly with one another for all
purposes of the Convention.
Although this Convention does not specifically designate
the Attorney General as Central Authority, the United States
and other delegations intended and understood that the U.S.
Attorney General would be the U.S. Central Authority, as is the
case under all other United States mutual legal assistance
treaties. The Attorney General has delegated authority as
Central Authority under mutual legal assistance treaties to the
Assistant Attorney General in charge of the Criminal
Division.6
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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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Article 4--Appropriate Authorities
This article recognizes that while the Central Authority
will formally make and receive all requests, the information in
the requests, and the impetus for the invocation of the
Convention, will be coming from elsewhere within the Requesting
State's government. Since there are basic differences in the
structure of the legal systems of the Parties, a request for
assistance from one Party may have a different point of origin
than a request for assistance from the other Party. For
example, the majority of U.S. requests will be initially
brought to the Central Authority's attention by prosecutors or
investigators, whereas requests in civil law countries will
often first be suggested to the Central Authority by judges or
investigating magistrates. This is because in civil law
countries, a judge or magistrate directly oversees many of the
duties in connection with criminal investigations which in the
United States are performed by prosecutors or law enforcement
agents.7
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\7\ See generally Pahl, Wanted: Criminal Justice--Colombia's
Adoption of a Prosecutorial System of Criminal Procedure, 16 Fordham
Int'l Law Rev 608 (1992); Ploscowe, The Investigating Magistrate (Juge
d'instruction) in European Criminal Procedure, 33 Mich. L. Rev. 1010
(1935); Keedy, The Preliminary Investigation of Crime in France, 88 U.
Pa. L. Rev. 385 (1940).
---------------------------------------------------------------------------
It should be noted that while the fundamental differences
between the civil law and common law systems were accommodated
by this clause in this treaty, it is also the anticipation of
the negotiators that in any event the ``party in interest'' who
motivates the request must be one with responsibility for
criminal investigations. It was not the anticipation of the
negotiators that a Central Authority will seek to invoke the
Convention on behalf of legislative investigations, independent
Commissions of Inquiry unable to institute prosecutions, or
private parties.
Article 5--Double Criminality
Extradition treaties often condition the surrender of
fugitives upon a showing of ``double 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. The first paragraph of this article
establishes the general principle that there is no requirement
of double criminality for cooperation under this Convention,
and that assistance must be provided even when the criminal
matter under investigation in the Requesting State would not be
a crime in the Requested State. This paragraph is important
because there are significant differences in the laws of the
various countries in the region, and the double criminality
rule would make assistance unavailable in many significant
areas.
The second paragraph specifies two measures (sequestration
of property, and searches and seizures, including house
searches, provided for in Articles 13, 14 and 15) in which the
Requested State has the discretion to decline to render
assistance unless double criminality is shown. Similar
exceptions appear in the European Convention on Judicial
Assistance in Penal Matters, and are intended to emphasize that
in these cases the procedural and substantive law of the
Requested State must be taken into account, e.g., that there
may be a requirement of double criminality to effect a warrant
to search and/or seize. A similar provision is found in Article
1(2) of the U.S.-Uruguay MLAT.
Article 6
This article requires that the crime giving rise to the
request be punishable by one year or more of imprisonment in
the requesting state.
Article 7--Scope of Application
This article sets forth a list of the major types of
assistance specifically considered by the negotiators. Most of
the items listed in this article are described in further
detail in subsequent articles. This article'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 and
reinforced by the final subparagraph.
Article 8--Military Crimes
This article permits a Requested State to deny a request if
the request relates to a strictly military offense. A similar
restriction is found in many of our bilateral mutual legal
assistance treaties,8 and is also in Article 1(2) of
the European Convention on Mutual Assistance in Criminal
Matters.9
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\8\ See U.S.-Mexico Mutual Legal Assistance Treaty, signed at
Mexico December 9, 1987, entered into force May 3, 1991, art. 1(3)(d);
U.S.-Uruguay Mutual Legal Assistance Treaty, signed at Montevideo May
6, 1991, entered into force April 15, 1994, art. 5(1)(a).
\9\ Done at Strasbourg April 20, 1959, European Treaty Series No.
30.
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Article 9--Refusal of Assistance
Article 9 outlines the circumstances under which a request
for assistance may be denied. It should be noted that the
Requested State has the discretion to deny assistance on these
grounds, but is also free to grant assistance if it wishes.
Nevertheless, this article is an important one because it
reflects the limitations on each Party's obligation to provide
assistance.
It should also be noted that the grounds for denying
assistance under this convention are more numerous and a bit
broader than the grounds contained in the bilateral mutual
legal assistance treaties the United States has signed. This is
because the convention is a multilateral agreement, designed to
accommodate the varying legal systems of a number of different
States in the region. The United States, as only one of the
States involved in the negotiations, could not successfully
insist that this provision of the treaty reflect U.S. policies
alone. Thus, some of the provisions in this article were
insisted upon by some OAS States whose internal legislation and
jurisprudence place restrictions on international assistance
which are not maintained by other OAS states. Other provisions
reflect long-standing policies one or two states maintain with
respect to cooperation with other states, policies which are
not shared generally but which had to be accommodated in order
for those states to accede to the convention. In short, the
bases for denying assistance found in this provision, while
appropriate given the convention's multilateral context, do not
necessarily reflect those which the United States would demand
in a bilateral mutual legal assistance treaty.
Article 9(a) permits the Requested State to deny a request
if the evidence requested is to be used to try a person in the
Requesting State on a charge for which that person has already
been sentenced or acquitted in the Requesting or Requested
State. This paragraph makes it clear that the denial must be
specific to the person who is the subject of the request, and
may not be applied to deny assistance related to other persons
charged with the same offense but not yet sentenced or
acquitted.
Article 9(b) permits denial of assistance if the Requested
State finds that the investigation has been initiated for the
purpose of prosecuting, punishing or discriminating against an
individual or group of persons for reason of sex, race, social
status, nationality, religion, or ideology. This language comes
from the American Convention on Human Rights, adopted by the
OAS November 22, 1969, entered into force July 18, 1978; United
States signed June 1, 1977. The United States delegation did
not initially support this broad provision but accepted it as
part of an overall agreement on an appropriate text for Article
9.
Article 9(c) permits the Central Authority of the Requested
State to deny a request if it relates to an offense considered
to be political, to be related to a political offense, or to be
prosecuted for political reasons. This is a somewhat more
broadly worded political offense limitation clause than those
found in most United States bilateral mutual legal assistance
treaties, in that it allows (but, on the other hand, does not
mandate) the denial of assistance for offenses which are not
political in themselves but the requested states concludes that
the prosecution is for political reasons. The determination of
what is a political offense is to be made by the Requested
State, and the United States delegation understood and intended
that, for the United States, the Central Authority will make
this determination, in consultation with other relevant
executive branch agencies.
Article 9(d) permits the Requested State to deny assistance
requested by special or ad hoc tribunals. This provision was
included because some special or ad hoc tribunals have been
implicated in human rights violations.10 Article
9(d) permits the Requested State to determine, on a case by
case basis, whether to provide the same assistance to foreign
special or ad hoc tribunals which would be supplied to an
ordinary criminal court.
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\10\ See, e.g., Article 8, The American Convention on Human Rights,
adopted by the OAS November 22, 1969; entered into force July 18, 1978,
signed by the United States on June 1, 1977.
---------------------------------------------------------------------------
Article 9(e) permits assistance to be refused if the
assistance would prejudice the public policy (ordre public),
security sovereignty, or basic public interests of the
Requested State. All U.S. mutual legal assistance treaties
contain provisions allowing the Requested State to decline to
execute a request if execution would prejudice the essential
interests of that Party.
The delegations agreed that the phrase ``basic public
interests'' was intended to be limited to very serious reasons
for denial. However, it was agreed that these could include
interests unrelated to national military or political security.
This provision would, for instance, be invoked if the execution
of a request would violate essential United States interests
related to the fundamental purposes of the Convention. One
fundamental purpose of the Convention is to enhance law
enforcement cooperation, and attaining that purpose would be
hampered if sensitive law enforcement information available
under the Convention were to fall into the wrong hands. The
United States Central Authority would invoke Article 9(e) to
decline to provide information pursuant to a request under this
Convention 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 a felony,
including the facilitation or the production or distribution of
illegal drugs.11
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\11\ This is consistent with the Senate resolution of advice and
consent to ratification of other recent mutual legal assistance
treaties with e.g., Luxembourg, Hong Kong, Poland and Barbados. See
Cong. Rec. S12985-S12987 (November 1, 1998). See, also, Mutual Legal
Assistance Treaty Concerning the Cayman Islands, Exec. Rept. 100-26,
100th Cong., 2nd Sess., 67 (1988) (testimony of Mark M. Richard, Deputy
Assistant Attorney General, Criminal Division, United States Department
of Justice).
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Article 9(f) permits the Requested State to deny a request
related to a tax offense, with one very important exception:
assistance shall be provided if the tax offense is ``committed
by way of an intentionally incorrect statement'' or ``by way of
an intentional failure to declare income from any other offense
covered by this Convention.''
The United States considers criminal tax investigations to
be an important aspect of a State's overall strategy for
combating crime, and believes that an exception like Article
9(f) is unwise and unnecessary. Tax investigations are an
important weapon in the battle against offenses such as drug
trafficking and organized crime. There is a provision like
Article 9(f) in the United States' bilateral treaty with
Uruguay, where we were assured that it would be interpreted as
a very narrow exception to a general obligation to provide
assistance, but no similar clause appears in the other mutual
legal assistance treaties which we have signed, including
treaties with other countries in the region such as Jamaica,
Argentina, Colombia, and Mexico.12 Moreover, the
clear trend in international legal cooperation matters has been
to provide greater assistance in criminal tax investigations
and prosecutions,13 a trend underscored by the many
bilateral treaties and agreements on mutual assistance in tax
matters in force between the United States and other States in
the region. For these reasons, the United States delegation
consistently opposed Article 9(f) during the negotiations, and
would not sign the Convention until the Optional Protocol
requiring assistance for tax offenses was developed and opened
for signature.
---------------------------------------------------------------------------
\12\ A few of our bilateral mutual legal assistance treaties do
contain provisions allowing the Requested State to deny assistance for
requests relating to certain tax offenses. See U.S.-Bahamas Mutual
Legal Assistance Treaty, signed at Nassau March 9, 1990, entered into
force September 22, 1994, art. 2(2); U.S.-U.K. Treaty Concerning the
Cayman Islands, signed at Grand Cayman July 3, 1986, entered into force
March 19, 1990, art. 3(1)(a).
\13\ For example, the European Convention on Mutual Assistance,
opened for signature on 20 April 1959, had a provision similar to 9(f),
making assistance in tax crimes discretionary. However, a Protocol to
this multilateral convention was agreed to and opened for signature on
17 March 1978, making assistance for tax offenses mandatory.
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CHAPTER II--REQUESTS FOR ASSISTANCE, PROCESSING AND EXECUTION (Articles
10-16)
Article 10--Requests for Assistance
The first paragraph requires that requests be in writing
and that requests be executed in accordance with the domestic
law of the Requested State. This provision is intended to
emphasize that the law of the Requested State is the
controlling law in executing a request under the Convention.
For the United States, the Convention is intended to be self-
executing, and no new legislation is needed to carry out its
obligations.
The second paragraph requires that procedures specified in
the request be fulfilled insofar as the law of the Requested
State is not violated. Unless the requested procedures are
incompatible with the Requested State's law, those procedures
must be used to execute the request. However, neither Party is
expected to take any action pursuant to a request which would
be prohibited under its laws. It is contemplated that forms for
authentication, for example, or specific procedures in taking
testimony or collecting or verifying evidence may be required
by the Requesting State to ensure the admissibility and
usefulness of the evidence in court proceedings in the
Requesting State. A similar provision is found in several other
U.S. Mutual Legal Assistance Treaties.14 It is also
similar to provisions in other mutual legal assistance treaties
that provide for the use of specific forms to authenticate
requested documents as well as following the method of
execution specified in the request, if not prohibited by the
laws of the Requested State.
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\14\ See, e.g., U.S.-Argentina Mutual Legal Assistance Treaty,
signed at Buenos Aires December 4, 1990, entered into force February 9,
1993, art. 5(3).
---------------------------------------------------------------------------
Article 11
This article allows the Requested State to postpone the
execution of a request, with an explanation of the grounds for
doing so if necessary in certain circumstances. It is
understood that the Central Authority of the Requested State
will determine when to apply this provision.
For example, a request for assistance need not be executed
immediately if execution would interfere with an ongoing
investigation, prosecution, or proceeding in the Requested
State. It is understood that the Central Authority of the
Requested State will determine when to apply this provision.
The Central Authority of the Requested State may, in its
discretion, take such preliminary action as deemed advisable to
obtain or preserve evidence which might otherwise be lost
before the conclusion of the investigation or legal proceeding
taking place in that State. The fact that this is authorized
only ``if necessary,'' indicates that the Central Authority of
the Requested State is also obliged to consider granting
assistance immediately but subject to appropriate conditions
(e.g., that the evidence provided be kept confidential) rather
than postponed.
Article 12
This procedural article provides that any documents or
objects furnished under the Convention must be returned to the
Requested State as soon as possible, unless that State decides
otherwise. It is anticipated that the Requested State will
usually waive return unless original records or objects of
value are involved, but this is a matter best left to the
development of practice.Article 13--Search, Seizure, Attachment
and Surrender of Property
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. U.S. courts can execute such requests now, under
Title 28, United States Code, Section 1782.15
Article 13 creates a formal framework for reciprocal assistance
in such matters.
---------------------------------------------------------------------------
\15\ See, e.g., United States Ex Rel Public Prosecutor of
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No 84-67-Misc-
018 (M.D. Fla., Orlando Div.) (search warrant issued February 24, 1984
based on a request under Title 28, United States Code, Section 1782).
---------------------------------------------------------------------------
In this respect, the United States very rarely finds it
necessary to conduct a search and seizure at the request of
foreign law enforcement authorities, and, of course, we would
not seek to do so unless it were necessary. In some foreign
states, evidence is routinely obtained by searches and seizures
rather than subpoena duces tecum. Thus, the U.S. delegations
anticipates that this provision will be considerably more
valuable to the U.S. than it is to the other parties, as it
ensures that our treaty partner will have authority can obtain
for U.S. law enforcement authorities what they need from abroad
even if the provision is rarely used here on behalf of foreign
law enforcement authorities.
The article requires that the search and seizure request
include ``information that justifies the proposed action. That
action shall be subject to the procedural and substantive law
of the requested state.'' This means that normally a request to
the United States from another State will have to be supported
by probable cause for the search. A United States request to
another State would have to satisfy the corresponding
evidentiary standard there. The request would be carried out in
strict accordance with the law of the State in which the search
is being conducted.16
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\16\ The United States delegation had United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990), in mind as Article 13(1) was being
negotiated. In that case, the U.S. Supreme Court ruled that the Fourth
Amendment did not apply to a search by U.S. investigators of property
located in Mexico and owned by a person with no close ties to the
United States. The opinion overruled a lower court decision which had
excluded evidence obtained during the search because the investigators
did not obtain a U.S. search warrant before asking Mexican police for
permission to conduct the search.
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Under the second paragraph of the article, the Requested
State need not surrender any articles it has seized unless it
is satisfied that any interests that third parties may have in
the seized items are adequately protected. This permits the
Requested State, for instance, to insist that the Requesting
State promise that the article will be returned to the
Requested State at the conclusion of the proceedings. This
article is similar to articles in many of the United States'
extradition treaties.17
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\17\ U.S.-Canada Extradition Treaty, signed at Washington December
3, 1971, entered into force March 22, 1976, art. 15; U.S.-Mexico
Extradition Treaty, signed at Mexico City May 4, 1978, entered into
force January 25, 1980, art. 19. See also U.S.-U.K. Extradition Treaty,
signed at London June 8, 1972, entered into force January 21, 1977,
art. XIII.
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Article 14--Measures For Securing Assets
A major goal of the Convention is to enhance the efforts of
both the United States and other countries in the region in
combating narcotics trafficking. One significant strategy in
this effort is action by U.S. authorities to seize and
confiscate the money, property, and proceeds of drug
trafficking.
Article 14 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 a serious offense
including drug trafficking. These terms were intended to
include 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 are located may
take whatever action is appropriate under the law in that
State. For instance, if the assets in question are located in
the United States and were obtained as a result of a fraud in
another State, they could be seized in aid of prosecution under
Title 18, United States Code, Section 2314,18 or be
made subject to a temporary restraining order in anticipation
of a civil action for the return of the assets to the lawful
owner.
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\18\ 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.
---------------------------------------------------------------------------
If the assets in question are the fruits of drug
trafficking, the Contracting Parties will be especially willing
to help one another. Legislation in the United States expands
the authority of law enforcement officials to seize the
proceeds of drug trafficking. Title 18, United States Code,
Section 981(a)(1)(B) also authorizes the forfeiture to the
United States of property which represents proceeds obtained
directly or indirectly from 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 would be punishable under the laws of
the United States by imprisonment for a term exceeding one year
if such act or activity constituting the offense against the
foreign nation had occurred within the jurisdiction of the
United States.19 There is a growing trend among
nations toward enacting legislation of this kind in the battle
against narcotics trafficking.20
---------------------------------------------------------------------------
\19\ For example, Section 981(a)(1)(B) was among the grounds argued
in an action to forfeit a bank account in the United States containing
funds generated by a Peruvian drug trafficking organization. United
States v. All Monies ($477,048.62) in Account No. 90-3617-3, 754 F.
Supp. 1467 (D. Ha. 1991). In that case, the United States produced a
declaration from an informant alleging, that, inter alia, money had
been exchanged for coca paste in Peru. Also submitted was a declaration
from a legal expert stating that the activities described by the
informant constituted both a violation of Peruvian law and a foreign
drug felony for purposes of Section 981(a)(1)(B). However, the court
relied on other grounds to forfeit the accounts.
\20\ Many OAS members, including the United States, have signed
and ratified the United Nations Convention Against the Illicit Traffic
in Narcotic Drugs and Psychotropic Substances, with annex and final
act, Done at Vienna December 20, 1988, and entered into force for the
United States November 11, 1990, 28 I.L.M. 493 (March 1989), and
Article 3 of that Convention obliges the parties to enact legislation
to confiscate drug proceeds.
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Article 15
Article 15 states that the Parties to this Convention may
aid one another in proceedings leading to the forfeiture of the
proceeds of crime. The Parties also assume an obligation to aid
one another, on request, in proceedings leading to the
forfeiture of illegally obtained assets, restoring illegally
obtained funds or articles to their rightful owners.
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 in the Requesting State, the
Convention encourages the Requested State to do so. The
language of the article is carefully selected, however, so as
not to require any State to take any action which would go
beyond ``the extent permitted by their respective laws.'' It
does not, for instance, mandate institution of forfeiture
proceedings in either country against property identified by
the other if the relevant prosecuting authorities do not deem
it proper to do so.
It was anticipated that the parties would apply this
provision in any case ``permitted by their respective laws,''
including money laundering and racketeering offenses for the
United States.
Although asset sharing has become a critically important
area for the United States, the U.S. delegation decided not to
propose language in the Convention to cover asset sharing,
because it was felt that the sharing of assets is best worked
out on a country by country basis. Therefore, the language
``measures for securing . . .'' was not intended to include
asset sharing without other relevant intergovernmental
arrangements.
Article 16--Date, Place and Modality of the Execution of the Request
for Assistance
This article authorizes the requested state to furnish
information about the execution of a request for assistance.
The second paragraph of this article allows representatives
of the Requesting State to be present at and participate in the
execution of the request to the extent not prohibited by the
laws of the Requested State so long as the Requested State
expressly consents. For example, a United States request might
ask that the government and defense attorneys from the United
States, and perhaps the defendant, be present for the taking of
the testimony. A request to the United States may ask that the
judge from the Requesting State be present for the taking of
testimony in the United States. The phrase ``be present at and
participate in the execution of the request for assistance, to
the extent not prohibited by the law of the requested state,
and provided that the authorities of the requested state have
give their express consent thereto'' (emphasis added) was
included to provide for restrictions on direct questioning of
witnesses under the law of some member countries.21
Thus, the law of the Requested State controls the manner in
which questions are posed and the procedure for taking the
requested testimony.
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\21\ While restrictions under the laws of some countries require a
lawyer of that country to propound the questions to the witness, it is
understood that U.S. lawyers may be present and may pose questions, if
not directly to the witness, then in accordance with the legal
procedure of that country, either through a lawyer or judge of that
country.
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CHAPTER III--SERVICE OF JUDICIAL DECISIONS, JUDGMENTS, AND VERDICTS,
AND APPEARANCE OF WITNESSES AND EXPERT WITNESSES (Articles 17-23)
Article 17--Service of Judicial Decisions, Judgments, And Verdicts, and
Appearance of Witnesses and Expert Witnesses
Article 17 requires the Central Authority of the Requested
State to arrange for or effect the service of notice of
decisions, judgments, or other documents issued by competent
authorities of the Requesting State, at the request of the
Central Authority of the Requesting State.
It is expected that when the United States is the Requested
State, the Central Authority will arrange to execute requests
for service under the Convention by registered mail (in absence
of any request to follow a specified procedure for service) or
by the United States Marshals Service when personal service is
requested.
Article 18--Testimony in the Requested State
Article 18 states that a person in the Requested State
shall be summoned to appear, in accordance with the law of the
Requested State to give testimony or provide documents, records
or evidence.
Under most U.S. MLATs, the person questioned in the
Requested State is entitled to raise any evidentiary privileges
normally available under the law of that State. However, if the
witness attempts to invoke evidentiary privileges available
only under the law of the Requesting State, the evidence shall
nonetheless be taken, and transmitted to the Requesting State
along with notice that it was obtained over a claim of
privilege.22 Some OAS delegations felt that the
privileges of both Requesting and Requested State should apply
in such proceedings. Others, like the United States, did not
agree. The United States delegation did not want the Convention
to require U.S. authorities to adjudicate questions of the
applicability of foreign privileges in foreign requests to the
United States. The consensus reached was that the Convention
would be silent on this point, allowing each Party to follow
whatever approach its implementing legislation directs on this
matter, which means that the United States would neither be
forbidden from nor obliged to recognize privileges which exist
only under foreign law.
---------------------------------------------------------------------------
\22\ This approach enables the execution of the request to move
forward swiftly and efficiently, and allows the applicability of the
privilege to be determined in the Requesting State, where the scope of
the privilege and the policy reasons underlying it are best understood.
---------------------------------------------------------------------------
Article 19--Testimony in the Requesting State
Article 19 provides that upon request, the Requested State
shall invite witnesses who are located in its territory 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
Requested State is obliged to inform the Requesting State
promptly of the response of the witness.
Article 20--Transfer of Persons Subject to Criminal Proceedings
In some recent criminal cases, a need has arisen for the
testimony at a trial in one country of a witness serving a
sentence in another country. In some instances, the country
involved has been willing to ``lend'' the witness to the United
States Government, provided the witness would be carefully
guarded while in the United States and returned at the
conclusion of his testimony. In several situations, the Justice
Department has been able to arrange for federal inmates in the
United States to be transported to foreign countries to assist
in criminal proceedings.23 Article 20 provides an
express legal basis for cooperation in these matters.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
Paragraph one states that if both the person whose presence
is requested and the Requested State consent, the person in
custody ``shall be transferred'' for the purpose articulated in
the request for assistance from the Requesting State.
There have also been recent situations in which a person in
custody in the United States on a criminal matter has demanded
permission to travel to another country to be present at a
deposition being taken there in connection with the case. The
second paragraph of Article 20 addresses this
situation.24
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\24\ 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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A request for transfer may be denied if the individual
refuses to consent to the transfer, if the individual's
presence is needed for an investigation or criminal proceeding,
or for other considerations of a legal or another nature.
This article contains the express authority and obligation
for the receiving State to maintain the person in custody
throughout his stay there, unless the other State specifically
authorizes release. This is consistent with current Federal law
on this subject, found in Title 18, United States Code, Section
3508. The article also requires the receiving State to return
the person in custody to the other State, and provides that
this return will occur as soon as circumstances permit, or as
otherwise agreed. The transfer of a prisoner under this article
requires the consent of the person involved and of both States,
but the provision does not require that the prisoner consent
again to his return to the State where the transfer began.
Given the obligation to return a person so transferred, the
article also provides that the sending state shall not be
required to initiate extradition proceedings before the status
quo is restored by the return of the person transferred. The
prisoner will receive credit for time served while in the
custody of the receiving State.
Finally, the article requires that the stay in the
Requesting State shall not exceed the lesser of either the time
remaining of the sentence or 60 days. This time can be extended
only if the individual and both States agree.
Article 21--Transit
This article gives each country the power to authorize
transit through its territory of persons being transferred to
or from a third State. Notice of transit is to be made in
advance of travel and agents of the Requesting State are to
maintain custody of the person traveling.
Paragraph 2 provides that when air transportation is used
and no landing is scheduled on the territory of the other
country, no advance transit authorization is necessary.
Article 22--Safe Conduct
This article provides ``safe conduct'' for a person who is
in the Requesting State to testify pursuant to this Convention,
upon advance request by the person or the sending State. Under
this safe conduct, the person shall be immune from criminal
prosecution and detention for acts or convictions which
preceded the witness' departure from the Requested State, and
shall not be required to make statements or give testimony in
proceedings not mentioned in the request while he is in the
Requesting State. Furthermore, the person is not to be detained
or prosecuted on the basis of any statement he makes, except
for contempt of court or perjury. The safe conduct would not
prevent prosecution for any other crime committed while in the
Requesting State pursuant to the Convention or thereafter.
This article's applicability to a person transferred under
Article 21 is necessarily limited, since Article 21 requires
that a person be kept in custody unless the State from which he
was transferred has consented to his release.
The final paragraph states that the safe conduct guaranteed
in this article expires ten days after the sending State has
been notified that his presence is no longer required. It is
also understood that it would not apply if he leaves the
Requesting State and thereafter returns to it.
CHAPTER IV--TRANSMITTAL OF INFORMATION AND RECORDS (Articles 23-25)
Article 23
This article requires that the request for testimony be
accompanied with written questions or interrogatories to the
extent possible or necessary.
Article 24--Transmittal of Information and Records
This article describes the obligation to produce and
provide information from the files of its government
departments and agencies. The term ``government departments and
agencies'' includes executive, judicial, and legislative units
at the Federal, State and local level in the Requested State.
The first paragraph of this article obliges each State to
furnish the other, upon request, with copies of publicly
available records of its government agencies or departments.
The second paragraph provides that the Requested State may
share with its treaty partner copies of non-public information
in government files. The undertaking under this provision is
discretionary. Moreover, this subsection states that the
Requested State may utilize its discretion to turn over
information in the files of its government departments or
agencies only ``to the same extent as and subject to the same
conditions'' as it would impose in providing such documents to
its own authorities. It is intended that the Central Authority
of the Requested State determines to what extent and under what
conditions the information will be provided. The discretionary
nature of this provision was deemed necessary because
government files in each State contain certain types of
information which would be available to investigative
authorities in that State, but which 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 which was given to the Requested State in
return for a promise that it not be divulged. Therefore,
assistance can be denied under this paragraph and the Requested
State is not required to give the reasons for the denial.
The U.S. delegation specifically discussed whether this
article should serve as a basis for exchange of tax information
under Title 26 United States Code, Section 6103(k)(4). It was
the intention of the U.S. delegation that the United States be
able to provide assistance under the Convention in tax matters
and such assistance would include tax return information when
appropriate. Therefore, the U.S. delegation was satisfied that
this Convention 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 under this article to provide tax return information
to other States.
Article 25--Limitations on the Use of Information or Evidence
The first paragraph of Article 25 requires that information
provided under the Convention not be used for any purpose other
than that stated in the request (as required under Article
26(b)) without the prior consent of the Requested State. When
the requesting State needs to disclose and use the information
or evidence, in whole or in part, for purposes other than those
specified, the second paragraph requires it to request
authorization to do so from the requested State. The Requested
State may accede to or deny the request, in whole or in part.
The overall purpose of the Convention is the production of
evidence for trial, which would be frustrated if the Requested
Party could let the Requesting Party see valuable evidence but
could impose restrictions preventing the Requesting Part from
using the evidence. For this reason, the third paragraph of
this article contains an exception to these limitations for
evidence ``that must be disclosed and used to the extent
necessary for proper fulfillment of the procedure or
formalities specified in the request. . . .'' This also
includes some situations in which the due process guarantees of
the U.S. Constitution would require disclosure of information
exculpatory to the accused.25 In the event that
disclosure of evidence obtained under the Convention is
required in a proceeding involving a matter other than that
described in the request, the United States would consult in
advance with the Requested State in order to seek to fashion a
method of disclosure consistent with the requirements of both
States.
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\25\ See Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
The final paragraph states that the Requested State may
request that information it provides to the Requesting State be
kept confidential. Conditions of confidentiality are to be
imposed only when necessary, and are to be 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 may 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.
This provision would also permit imposition of conditions of
confidentiality required by the law of the Requested State. For
instance, information obtained from a grand jury might be
provided to OAS members only upon agreement by the latter to
maintain the same degree of secrecy to which the information
would be entitled in the United States.
Similar to the exception set forth in the third paragraph
of this Article, the second sentence of this final paragraph
recognizes that the requesting State may not always be able to
maintain such confidentiality. In the event that the requesting
State cannot accede to such a request, the Central Authorities
shall confer in order to define mutually acceptable terms of
confidentiality.
The U.S. delegation understood that this article of the
Convention was not intended to apply to information which has
been revealed to the public in the course of a trial or other
proceeding in the requesting state, in good faith compliance
with the terms of the Convention. When evidence obtained under
the Convention has been revealed to the public, that
information effectively becomes part of the public domain. The
information is likely to become a matter of wide and common
knowledge; it may be cited or described in the press and can be
obtained by anyone from the court record. When that occurs, it
is impossible as a practical matter for the Central Authority
of the Requesting State to block the use of that information.
Indeed, any effort to interfere with the use of information
which is in the public domain could raise serious
Constitutional problems in the United States, and that was not
the intention of the negotiators. Because this issue was not
formally addressed in the Convention, however, an Understanding
has been proposed for inclusion in the U.S. instrument of
ratification stating that the limitation will no longer apply
if information or evidence is made public, in a manner
consistent with Article 25, in the course of proceedings in the
Requesting State.
CHAPTER V--PROCEDURE (Articles 26-31)
Article 26
This article outlines the specific information which must
be included in each request. It also provides that the
Requested State may request additional information when
necessary for fulfillment of the request and requires that, if
the Requested State cannot comply with a request, it must
return the request with an explanation.
Article 27
This article states that in keeping with the intention of
the Parties that requests be as simple and straightforward as
possible, there is no requirement under the Convention that a
request be legalized or certified.
Article 28
This article requires that requests be translated into an
official language of the Requested State. It is understood that
requests to the United States will be translated into English.
Article 29
Article 29 of the Convention proceeds from the basic
principle that the Requested State should bear all expenses
incurred in the execution of a request. However, the Requesting
State is to pay fees of expert witnesses and travel costs
related to transportation of persons. If it appears that
execution may entail unusual costs, the Parties are to confer.
Article 30
Experience has shown that as the Parties to a Convention of
this kind work together over the years, they become aware of
various practical ways to make the Convention more effective
and their own efforts more efficient. This article encourages
States to share those ideas with one another. It is anticipated
that the Central Authorities for the respective parties will
work closely together and that consultation between the Central
Authorities is to be especially encouraged.
Article 31--Liability
Some countries impose personal liability on their judges
for damages resulting from action that was taken in the
execution of official duties, such as freezing bank accounts,
seizing records, etc. Some foreign judges do not enjoy as broad
protection for official acts as that which exists for U.S.
judges and prosecutors under U.S. law. Because of this
potential liability, some foreign judges may hesitate to
execute requests from the United States. Therefore, this
article was included to shield authorities in the requested
state from liability when properly executing a request under
the Convention in which an inadvertent error (e.g., transposed
numbers in a bank account) may have been made by an official in
the requesting state. Consequently, the second paragraph of
this article provides that neither Party is liable for damages
that may arise from acts committed by the other Party in the
formulation or execution of a request.
This article in no way creates additional liability for any
official of the United States or for the United States
Government, and does not alter current U.S. law in any
way.26
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\26\ See U.S.-Uruguay Mutual Legal Assistance Treaty, signed at
Montevideo May 6, 1991, entered into force April 15, 1994, art. 26.
---------------------------------------------------------------------------
CHAPTER VI--FINAL CLAUSES (Articles 32-40)
Article 32
This article contains standard language on signature by
members.
Article 33
This article contains standard language providing for
ratification by OAS member States.
Article 34
This article contains standard language on accession by
other States.
Article 35
This article allows reservations to be made at the time of
signature, approval, ratification or accession. Reservations
must concern at least one specific provision and may not be
incompatible with the object and purpose of the Convention.
Article 36
Article 36 provides that this Convention shall not be
interpreted as affecting or restricting obligations in effect
under any other international, bilateral or multilateral
convention with clauses governing specific aspects of
international criminal judicial assistance, or more favorable
practices of the States. This provision is important to the
United States, which has signed bilateral mutual legal
assistance treaties with numerous States in the region. The
United States has found bilateral treaties to be especially
useful instruments for bilateral law enforcement cooperation,
and anticipate the negotiation of additional bilateral treaties
in the future. The United States is also a party to several
important multilateral conventions such as the 1988 United
Nations Convention on Narcotic Drugs and Psychotropic
Substances,27 which provide for or affect
international assistance.
---------------------------------------------------------------------------
\27\ Done at Vienna December 20, 1988, and entered into force for
the United States November 11, 1990, 28 I.L.M. 493 (March 1989).
---------------------------------------------------------------------------
Article 36 makes clear that the assistance and procedures
set forth in this Inter-American Convention on Mutual
Assistance in Criminal Matters shall not prevent any of the
Contracting Parties from granting assistance to another Party
through the provisions of other international agreements, or
bilateral treaties, or through the provisions of national laws.
The Parties also may provide assistance pursuant to any
bilateral arrangement, agreement, or practice which may be
applicable. Thus, the Convention is not intended to replace,
supersede, obviate, or otherwise interfere in any way with any
other bilateral or multilateral conventions on this topic which
are currently in force or which may be negotiated in the
future.
Article 37
This article contains standard language on entry in force
of the Convention.
Article 38
This article provides that each Party with two or more
territorial units in which different systems of law govern
matters addressed in this convention must state whether the
Convention applies to all its territorial units.
Article 39
This article contains the standard provision concerning the
procedure for denouncing the Convention. The requirement that a
State must give one year's notice of intent to denounce the
Convention is not unusual in multilateral conventions, and is
consistent with other international conventions such as the
1988 Vienna Convention on Narcotic and Psychotropic Substances.
Article 40
This article contains language on procedures for deposits
of instruments of ratification, accession, denunciation as well
as reservations.
------
Technical Analysis of the Optional Protocol Related to the Inter-
American Convention on Mutual Legal Assistance in Criminal Matters
In May of 1992, the OAS opened for signature the Inter-
American Convention on Mutual Legal Assistance in Criminal
Matters (the ``OAS MLAT''). The United States delegation
supported the conclusion of the OAS MLAT, but also publicly
expressed the view that the United States government would be
unlikely to become a party unless a protocol providing for
assistance in tax proceedings was agreed upon and also opened
for signature.
While the OAS MLAT would be a valuable tool for obtaining
assistance in a wide variety of criminal matters, it contains
certain limitations regarding assistance in cases involving tax
offenses. Most significantly, under Article 9(f) of the MLAT, a
party may decline assistance in investigations and proceedings
involving certain tax offenses. The United States delegation
consistently opposed this provision during negotiations of the
MLAT, but ultimately joined consensus on the Article as a
whole. The United States considers criminal tax investigations
to be an important aspect of a State's overall strategy for
combating crime. Such investigations are also an increasingly
important weapon in the battle against offenses such as drug
trafficking and organized crime. As discussed below, the first
article of the Protocol removes the discretion of Protocol
signatories to refuse assistance on the grounds that a tax
offense is involved. The second article clarifies that the
limited dual criminality provision in Article 5 of the OAS MLAT
should be interpreted liberally in cases involving tax
offenses.
This Protocol follows a trend in international legal
cooperation matters to provide greater assistance in criminal
tax cases and investigations. For example, the European
Convention on Mutual Assistance, opened for signature on April
20, 1959, had a provision similar to Article 9(f), making
assistance in tax crimes discretionary. However, a Protocol to
this multilateral convention was agreed to and opened for
signature on March 17, 1978, making assistance for tax offenses
mandatory.
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
history.
Article 1
Article 1 obligates parties to the Protocol to forego the
exercise of the discretion provided to parties in the OAS MLAT
to refuse assistance solely on the grounds that a tax offense
is involved. Thus, those States which are parties both to the
OAS MLAT and the Protocol may not deny assistance solely
because the matter under investigation is a tax offense in the
Requesting State or would be a tax offense in the Requested
State. Of course, each State retains any other lawful basis for
denying assistance, which is contained in the OAS MLAT or in
its internal law.
Article 2
Article 2 provides that the limited dual criminality
provision in Article 5 of the OAS MLAT should not be
interpreted in an unduly narrow manner in cases involving tax
offenses. This article mandates that parties to the Protocol
not decline assistance based on dual criminality if ``the act
specified in the request corresponds to a tax crime of the same
nature under the law of the Requested State.''
Article 3
Paragraph one through four of this article contain standard
final clauses on issues such as signature, accession,
ratification and reservations.
Paragraph five of this article contains language that is
particularly important to the United States. The U.S. has
signed bilateral mutual legal assistance treaties with numerous
States in the region, with fourteen such treaties currently in
force. The United States has found bilateral treaties to be
especially useful instruments for bilateral law enforcement
cooperation, and anticipates the negotiation of additional
bilateral treaties in the future. The United States is also a
party to several important multilateral conventions such as
United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, with annex and final act,
done at Vienna, December 20, 1988, and entered into force for
the United States November 11, 1990, 28 I.L.M. 493 (March
1989), which provide for or otherwise enhance international
judicial assistance.
Therefore, it the understanding of the United States that
the assistance and procedures set forth in this Protocol shall
not prevent any of the Contracting Parties from granting
assistance to another Party through the provisions of other
international agreements, or bilateral treaties, or through the
provisions of national laws. The Parties also may provide
assistance pursuant to any bilateral arrangement, agreement, or
practice which may be applicable. Thus, the Protocol is not
intended to replace, supersede, obviate, or otherwise interfere
in any way with any other bilateral or multilateral conventions
on this topic which are currently in force or which may be
negotiated in the future.
Paragraphs six and seven of this article contain standard
language on entry in force of the Protocol. Paragraphs eight
provides that if a state party has two or more territorial
units in which different systems of law govern matters
addressed in the Protocol, it shall state at the time of
signature, ratification or accession whether this Protocol
shall apply to all of its territorial units or only to one or
more of them. Paragraph nine on statements made by parties
pursuant to paragraph eight is thus also not relevant to the
United States.
Article 4
This article contains a standard provision concerning the
procedure for denouncing the Protocol and states that the
Protocol shall remain in force as long as the Convention
remains in force. The requirement that a State must give one
year notice of intent to terminate the effectiveness of the
Protocol is not unusual and is consistent with the Convention
and other international conventions such as the 1988 Vienna
Convention on Narcotic and Psychotropic Substances.
Article 5
This article contains language on procedures for deposits
of the Protocol with the General Secretariat of the OAS and
notifications to Parties of signatures and deposits of
instruments of ratification, accession, denunciation as well as
reservations.
VIII. Text of the Resolutions of Ratification
Agreement with Cyprus
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 Cyprus
on Mutual Legal Assistance in Criminal Matters, signed at
Nicosia on December 20, 1999 (Treaty Doc. 106-35), 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 contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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 provisos, which shall not be included in the
instrument of ratification:
(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
interests, 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 this
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.
Agreement with Egypt
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 Arab Republic of
Egypt on Mutual Legal Assistance in Criminal Matters, signed at
Cairo on May 3, 1998 (Treaty Doc. 106-19), 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 contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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 provisos, which shall not be included in the
instrument of ratification:
(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
interests, 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 this
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.
Agreement with France
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 France on Mutual Legal Assistance in Criminal Matters, with
an explanatory note, signed at Paris on December 10, 1998
(Treaty Doc. 106-17), 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 contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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 provisos, which shall not be included in the
instrument of ratification:
(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
interests, 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 this
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.
Agreement with Greece
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 Hellenic Republic
on Mutual Legal Assistance in Criminal Matters, signed at
Washington on May 26, 1999 (Treaty Doc. 106-18), 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 contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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 provisos, which shall not be included in the
instrument of ratification:
(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
interests, 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 this
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.
Agreement with Nigeria
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 Federal Republic of Nigeria on Mutual
Legal Assistance in Criminal Matters, signed at Washington on
September 13, 1989 (Treaty Doc. 102-26), 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 contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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 provisos, which shall not be included in the
instrument of ratification:
(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
interests, 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 this
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.
Agreement with Romania
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 Romania on Mutual Legal Assistance in Criminal Matters,
signed at Washington on May 26, 1999 (Treaty Doc. 106-20),
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 contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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 provisos, which shall not be included in the
instrument of ratification:
(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
interests, 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 this
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.
Agreement with South Africa
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 South
Africa on Mutual Legal Assistance in Criminal Matters, signed
at Washington on September 16, 1999 (Treaty Doc. 106-36),
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 contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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 provisos, which shall not be included in the
instrument of ratification:
(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
interests, 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 this
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.
Agreement with Ukraine
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 Ukraine on Mutual Legal Assistance in Criminal Matters,
with Annex, signed at Kiev on July 22, 1998 (Treaty Doc. 106-
16), 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 contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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 provisos, which shall not be included in the
instrument of ratification:
(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
interests, 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 this
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.
Inter-American Convention on Mutual Assistance in Criminal Matters with
Related Protocol
Resolved (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Inter-American Convention on Mutual
Assistance in Criminal Matters (``the Convention''), adopted at
the Twenty-Second Regular Session of the Organization of
American States (``OAS'') General Assembly meeting in Nassau,
The Bahamas, on May 23, 1992, and the Optional Protocol Related
to the Inter-American Convention on Mutual Assistance in
Criminal Matters (``the Optional Protocol''), adopted at the
Twenty-Third Regular Session of the OAS General Assembly
meeting in Managua, Nicaragua, on June 11, 1993, both
instruments signed on behalf of the United States at OAS
Headquarters in Washington on January 10, 1995 (Treaty Doc.
105-25), subject to the understandings of subsection (a), the
declaration of subsection (b) and the proviso of subsection
(c).
(a) Understandings.--The Senate's advice and consent is
subject to the following understandings, which shall be
included in the instrument of ratification:
(1) In General.--The United States understands that
the Convention and Optional Protocol are not intended
to replace, supersede, obviate or otherwise interfere
with any other existing bilateral or multilateral
treaties or conventions, including those that relate to
mutual assistance in criminal matters.
(2) Article 25.--The United States understands that
Article 25 of the Convention, which limits disclosure
or use of information or evidence obtained under the
Convention, shall no longer apply if such information
or evidence is made public, in a manner consistent with
Article 25, in the course of proceedings in the
Requesting State.
(3) Prohibition on Assistance to the International
Criminal Court.--The United States shall exercise its
rights to limit the use of assistance it may provide
under the Convention or the Optional Protocol 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 contemplated in
the Statute adopted in Rome, Italy, on July 17, 1998,
unless the Statute establishing that 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
upon 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) Proviso.--The resolution of ratification is subject
to the following proviso, which shall not be included in the
instrument of ratification:
Supremacy of the Constitution.--Nothing in this
Convention or the Optional Protocol 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.