[Senate Executive Report 107-3]
[From the U.S. Government Publishing Office]
107th Congress Exec. Rpt.
SENATE
1st Session 107-3
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TREATY WITH THE RUSSIAN FEDERATION ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS
_______
December 14, 2001.--Ordered to be printed
_______
Mr. Biden from the Committee on Foreign Relations
submitted the following
R E P O R T
[To accompany Treaty Doc. 106-22]
The Committee on Foreign Relations, to which was referred
the Treaty Between the United States of America and the Russian
Federation on Mutual Legal Assistance in Criminal Matters
(Treaty Doc. 106-22), having considered the same, reports
favorably thereon, with three conditions indicated in the
resolution of advice and consent, and recommends that the
Senate give its advice and consent to the ratification thereof
as set forth in this report and the accompanying resolution of
advice and consent to ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................1
III. Entry Into Force and Termination.................................2
IV. Committee Action.................................................2
V. Committee Recommendation and Comments............................2
VI. Explanation of Proposed Treaty...................................3
VII. Text of Resolution of Advice and Consent to Ratification........21
VIII.Appendix........................................................23
I. Purpose
The purpose of the Treaty is to establish a formal, treaty-
based means for cooperation on law enforcement matters with the
Russian Federation.
II. Background
The United States is currently party to 45 bilateral
treaties on mutual legal assistance (MLATs). These treaties
have proven to be important legal mechanisms for international
cooperation against crime, which increasingly involves cross-
border activity. In the 106th Congress, the Senate gave its
advice and consent to ratification of such treaties with
Cyprus, Egypt, France, Greece, Nigeria, Romania, South Africa
and Ukraine. The Treaty with Russia was signed on June 17,
1999, and submitted to the Senate on February 10, 2000. It
follows a standard form for such mutual legal assistance
treaties.
Although submitted by President Clinton, the Bush
Administration has expressed its support for the advice and
consent to ratification of the Treaty. On December 11, 2001,
Secretary of State Powell wrote to the Committee Chairman and
Ranking Member to urge that the Senate act on the Treaty (see
appendix).
III. Entry Into Force and Termination
The Treaty enters into force upon the exchange of the
instruments of ratification. The Committee has been informed by
the Department of State that the Government of the Russian
Federation has completed the ratification process and is ready
to exchange the instrument with the United States.
Either Party may terminate the Treaty by means of written
notice to the other Party. Termination takes effect six months
following the date of receipt of such notification.
IV. Committee Action
The Committee conducted a public hearing on the Treaty on
September 12, 2000 (S. Hrg. 106-660), taking testimony from the
Departments of State and Justice. On December 12, 2001, the
Committee considered the Treaty, and ordered it favorably
reported by voice vote, with the recommendation that the Senate
give its advice and consent to the ratification of the Treaty,
subject to the conditions set forth in the resolution of advice
and consent to ratification, below in Section VII.
V. Committee Recommendation and Comments
The Committee recommends that the Senate advise and consent
to ratification of the Mutual Legal Assistance Treaty with
Russia. Prior to September 11, U.S. law enforcement already was
engaged in many highly important investigations involving
Russian organized crime, money laundering and corruption. Since
September 11, the United States and Russia have been engaged in
close cooperation to counter the threat of international
terrorism. The Treaty will be an important means for fostering
cooperation with Russia in fighting crime and international
terrorism.
The United States and Russia already have a similar
agreement in place. The pending Treaty would replace an
existing executive agreement between the United States and
Russia which was signed in June 1995. That agreement, a mutual
legal assistance agreement, is more limited than the pending
Treaty in an important respect. The executive agreement applies
only to a limited set of criminal offenses set forth in the
annex of the agreement. The Treaty before the Senate provides a
broader, and more flexible, ``dual criminality'' provision,
which obligates each Party to provide assistance in any case
where the conduct that is the subject of the request
constitutes a crime under the laws of both Parties. The MLAT
will therefore be useful to U.S. law enforcement interests by
expanding the possible scope of bilateral cooperation.
The Executive Branch has indicated that the record of
cooperation under the existing agreement has been not fully
satisfactory. This is hardly unusual; the process of building a
cooperative relationship between national law enforcement
institutions is often a slow one, particularly given the
differences between the U.S. and Russian legal systems. One
problem in implementation of the agreement, however, is due not
to the Russian legal system but to the operation of the
government itself: there has been a lack of continuity on the
Russian side in the designation of the point of contact in the
Central Authority.
The Executive Branch representatives have indicated to the
Committee that the entry into force of the MLAT will make law
enforcement cooperation with Russia more reliable. For a
variety of reasons, according to testimony before the
Committee, the Russian government ``looks upon the treaty
obligation'' imposed by the MLAT as being ``binding on more
government agencies'' than the executive agreement now in
place. The Committee expects that entry into force of this
Treaty will lead the Russian government to fully review and
fully implement all aspects of the Central Authority
arrangement required by the Treaty.
The Committee recognizes that cooperation and trust between
the two governments will be an evolutionary process; that is
hardly surprising after decades of antagonism. The Committee
expects, however, that the pledges of an enhanced law
enforcement relationship will result in concrete improvements
in bilateral cooperation. Both the United States and Russia
should devote the necessary resources, and political
commitment, to ensure that the Treaty is effectively utilized.
The Committee is encouraged by Secretary of State Powell's
report to the Committee on his recent discussions with Foreign
Minister Ivanov about the Treaty (see appendix). Secretary
Powell stated that his Russian counterpart indicated that the
Russian Federation would ``work closely with the United States
to ensure the effective implementation of this treaty.'' The
Committee looks forward to, and intends to monitor, the
implementation of the Treaty.
VI. Explanation of Proposed Treaty
The following is an article-by-article technical analysis
provided by the Departments of State and Justice regarding the
Treaty.
On June 17, 1999, the United States signed a Treaty Between
the United States of America and the Russian Federation (``the
Treaty''). In recent years, the United States has signed
similar treaties with a number of countries as part of a highly
successful effort to modernize the legal tools available to law
enforcement authorities in need of foreign evidence for use in
criminal cases.
The Treaty is expected to be a valuable weapon for the
United States in its efforts to combat organized crime,
transnational terrorism, and international drug trafficking,
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. Russia
does not have a law specifically dealing with mutual legal
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
Paragraph 1 requires the Parties to provide ``comprehensive
mutual legal assistance in criminal matters.'' Paragraph 2
defines that term as meaning assistance provided in connection
with the prevention, suppression, and investigation of crimes;
criminal prosecutions; and other proceedings related to such
criminal matters.
The negotiators specifically agreed that the phrase
``investigation of crimes'' includes grand jury proceedings in
the United States and preliminary investigation proceedings in
Russia, and other legal measures taken prior to the filing of
formal charges in either State.\1\ The term ``criminal
prosecutions'' was intended to cover the full range of
proceedings in a criminal case, including such matters as bail
and sentencing hearings.\2\ For Russia, this term generally
represents the final stage of the ``preliminary investigation''
phase. It was also agreed that since the phrase ``proceedings
related to such criminal matters'' is broader than the
prevention, suppression, and investigation of crimes, as well
as criminal prosecutions or the 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.
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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; the United States must
assist Russia under the Treaty in connection with investigations prior
to charges being filed in Russia.
\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 3 conditions cooperation upon a showing of ``dual
criminality'', i.e., proof that the facts underlying the
offense charged in the Requesting Party would also constitute
an offense had they occurred in the Requested Party. During the
negotiations, the Russian 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.
The second sentence of paragraph 3 provides that even when
dual criminality does not exist, a Requested Party may, in its
discretion, provide legal assistance.
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 Russia 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).
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Paragraph 5 of this article defines the term ``person'' as
used in articles 1(4), 2(4), 5(3) subparagraphs 1-5, 10(1), 14,
and 15(2) as both individuals and legal entities, consistent
with usage in U.S. law.
Article 2--Scope of Legal Assistance
This article lists the major types of assistance
specifically considered by the Treaty negotiators. Most of the
items listed 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.
Article 3--Central Authorities and Procedures for Communications
This article requires that each Party implement the
provisions of the Treaty, including the making and receiving of
requests, through its Central Authority. The Central Authority
of the United States will make all requests to Russia on behalf
of federal agencies, state agencies, and local law enforcement
authorities in the United States. Likewise, the Central
Authority of Russia will make all requests emanating from
appropriate law enforcement authorities in Russia.
The Central Authority for the Requesting Party will
exercise discretion as to the form and content of requests, and
the number and priority of requests. The Central Authority of
the Requested Party also is 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 persons
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.\5\ Article
3(2) of the Treaty also states that the Office of the
Procurator General of the Russian Federation or persons
designated by the Procurator General will serve as the Central
Authority for Russia.
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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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Paragraph 3 states that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty and may agree upon such practical measures as may be
deemed necessary to facilitate the implementation of the
Treaty. It is anticipated that such communication will be
accomplished by telephone, telefax or any other means, at the
option of the Central Authorities themselves.
Article 4--Denial of Legal 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)(1) permits denial of a request if it relates
to an offense under military law that would not be an offense
under general criminal law.
Paragraph (1)(2) permits the Central Authority of the
Requested Party to deny a request if execution of the request
would prejudice the security or other essential interests of
that Party. All U.S. mutual legal assistance treaties contain
provisions allowing the Requested Party 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 U.S. 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 negotiators also agreed that ``other essential
interests'' could include 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 available under the Treaty were to fall into the
wrong hands. Therefore, the U.S. Central Authority may invoke
paragraph 1(2) 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. \6\
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\6\ This is consistent with the Senate resolution of advice and
consent to ratification of other 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.,
2 Sess., 67 (1988) (testimony of Mark M. Richard, Deputy Assistant
Attorney General, Criminal Division, United States Department of
Justice).
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In addition, the United States and Russia exchanged
diplomatic notes stating that during the negotiations the U.S.
delegation agreed to exclude an express reference in the Treaty
to ``political offense'' as a basis for denial of assistance
since the term ``political offense'' is not used in Russian
law. Instead, the Parties, through the exchange of these
diplomatic notes, have agreed that Article 4(1)(2) of the
Treaty provides a sufficient basis upon which the United States
may deny assistance in cases it would consider ``political
offenses.'' The United States would employ jurisprudence
similar to that used in extradition treaties for determining
what is a ``political offense.'' Such a restriction is similar
to provisions explicitly included in other mutual legal
assistance treaties. \7\
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\7\ In addition, the delegations agreed during the negotiation that
the term ``essential interest'' encompasses the fundamental interests
of each Party, including those relating to human rights and civil
liberties.
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Paragraph 1(3) allows the Central Authority of a Requested
Party to deny assistance if the request does not conform to the
requirements of this Treaty.
Paragraph 2 specifically prohibits the Requested Party from
denying assistance on the ground of bank secrecy. The
negotiators agreed that inclusion of this provision was useful
to explicitly demonstrate to bank and other officials of a
Requested Party, particularly in Russia where bank secrecy laws
exist, that they cannot assert bank secrecy as a basis for
refusing to provide assistance sought pursuant to a request
made in accordance with this Treaty.
Paragraph 3 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\8\ and obliges the
Requested Party 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 Party to provide the information on the
condition that it be used only in the routine criminal case.
Naturally, the Requested Party would notify the Requesting
Party of any proposed conditions before actually delivering the
evidence in question, thereby giving the Requesting Party a
chance to indicate whether it is willing to accept the evidence
subject to the conditions. If the Requesting Party 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 4 requires that the Central Authority of the
Requested Party promptly notify the Central Authority of the
Requesting Party of the basis for any denial of assistance.
This ensures that, when a request is only partly executed, the
Requested Party will provide some explanation for not providing
all of the information or evidence sought. This should avoid
misunderstandings, and enable the Requesting Party to better
prepare its requests in the future.
Article 5--Form and Contents of Requests for Legal Assistance
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested Party 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
Party agrees otherwise.
Paragraph 2 lists the five kinds of information deemed
crucial to the efficient operation of the Treaty which must be
included in each request. Paragraph 3 lists eight kinds of
information that are important but not always crucial, and
should be provided ``to the extent necessary and possible.'' In
keeping with the intention of the Parties that requests be as
simple and straightforward as possible, there is no requirement
under the Treaty that a request be legalized or certified.
Paragraph 4 states that the request shall be prepared and
signed in accordance with the regulations of the Requesting
Party. Requests from the U.S. Central Authority to Russia will
be signed by an authorized person of the Central Authority.
Requests from Russia to the United States typically will be
both signed by an appropriate person and contain official seals
of the Central Authority.
Article 6--Language
This article states that requests for assistance and
attached documents must be accompanied by a translation into
the language of the Requested Party.
Article 7--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 Party 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 Party, the Central Authority will promptly transmit
the request to the correct entity for execution.
When the United States is the Requested Party, it is
anticipated that the Central Authority will transmit most
requests 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 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 Russia. Rather, it is anticipated that when a request from
Russia 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. Similarly, this general
language should not be understood to authorize the use of the
Treaty to conduct criminal proceedings in Russia for the U.S.
(e.g., the accepting of guilty pleas from defendants).
Paragraph 2 states that the Central Authority of the
Requested Party shall represent the interests of the Requesting
Party in executing 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 Party shall arrange for the presentation of the
request to that court or agency at no cost to the Requesting
Party.
Paragraph 3 provides that ``[r]equests shall be executed in
accordance with the laws of the Requested Party except if this
Treaty provides otherwise.'' Thus, the method of executing a
request for assistance under the Treaty must be in accordance
with the Requested Party's domestic 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 second sentence of Article 7(3) states: ``[t]he
competent authorities of the Requested Party shall have the
authority to issue subpoenas, search warrants, or other orders
necessary for the execution of requests.'' This language
specifically authorizes U.S. courts to use all of their powers
to issue subpoenas and other process to satisfy a request under
this 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 term
``competent authorities'' is intended to include all those
officials authorized to issue compulsory process that might be
needed in executing a request.
The same paragraph requires that procedures specified in
the request shall be followed in the execution of the request
except to the extent that those procedures cannot lawfully be
followed in the Requested Party. This provision is necessary
for two reasons.
First, there are significant differences between the
procedures which must be followed by U.S. and Russian
authorities in collecting evidence in order to assure the
admissibility of that evidence at trial. For instance, U.S. 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.\9\ Since Russian law
contains no similar provision, documents acquired in Russia in
strict conformity with Russian 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 Russia even though they are not forbidden
there.
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\9\ 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 Party's investigation could be
retarded--if the Requested Party 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 Party could be
frustrated if the Requested Party were to insist on producing
evidence in a manner which renders the evidence inadmissible or
less persuasive in the Requesting Party. For this reason,
Paragraph 3 requires the Requested Party 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 Party (as opposed to
simply unfamiliar there), the appropriate procedure under the
law applicable for investigations or proceedings in the
Requested Party will be utilized.
Paragraph 4 states that a request for assistance need not
be executed immediately when the Central Authority of the
Requested Party determines that execution would interfere with
an ongoing criminal investigation, criminal prosecution, or
legal proceeding related to a pending criminal matter in the
Requested Party. The paragraph also allows the Requested Party
to provide the information to the Requesting Party subject to
conditions needed to prevent interference with the Requested
Party's proceedings.
It is anticipated that some United States requests for
assistance may contain information which under our law must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``a description of the facts and circumstances of the case'' as
required by Article 5(2)(2). Therefore, Paragraph 5 of Article
7 enables the Requesting Party to call upon the Requested Party
to use its best efforts to keep the information in the request
confidential.\10\ If the Requested Party 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 Party), or if for some other reason
this confidentiality cannot be assured, the Treaty obliges the
Requested Party to so indicate, thereby giving the Requesting
Party an opportunity to withdraw the request rather than risk
jeopardizing an investigation or proceeding by public
disclosure of the information.
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\10\ 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 Party shall respond to inquiries by the Requesting
Party concerning progress of its request. The delegations
understood that this meant reasonable inquiries. This is to
encourage open communication between the Central Authorities in
monitoring the status of specific requests.
Article 7(7) requires the Central Authority of the
Requested Party, upon request by the Central Authority of the
Requesting Party, to furnish information in advance about the
date and place of the execution of the request. The second
sentence of this same paragraph requires the Requested Party to
permit the presence of persons specified in the request during
the execution of the request.
Paragraph 8 requires that the Central Authority of the
Requested Party promptly notify the Central Authority of the
Requesting Party of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested Party must also explain the basis for the
outcome to the Central Authority of the Requesting Party. For
example, if the evidence sought could not be located, the
Central Authority of the Requested Party would report that fact
to the Central Authority of the Requesting Party.
Article 8--Costs
This article reflects the increasingly accepted
international rule that each Party shall bear the expenses
incurred within its territory in executing a legal assistance
Treaty request. This is consistent with similar provisions in
other United States mutual legal assistance treaties.\11\ 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 Party choose to hire
private counsel for a particular request, it is free to do so
at its own expense. Article 8 does obligate the Requesting
Party to pay fees of experts, the costs of translation,
interpretation, and transcription, and allowances and expenses
related to travel of persons pursuant to Articles 11 and 12.
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\11\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty,
signed at Washington February 4, 1998, entered into force March 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 9--Limitations on Use of the Results of Executed Requests
Paragraph 1 states that the Central Authority of the
Requested Party may require that the Requesting Party not use
the results of the execution of a request obtained under the
Treaty for purposes other than those described in the request
without the prior consent of Central Authority of the Requested
Party. If such a use limitation is required, the Requesting
Party must comply with the requirement. It will be recalled
that Article 5(2)(5) states that the Requesting Party must
specify the purpose for which the information or evidence is
needed.
It is not anticipated that the Central Authority of the
Requested Party will routinely request use limitations under
paragraph 1. Rather, it is expected that such limitations will
be requested sparingly, only when there is good reason to
restrict the utilization of the evidence.
Paragraph 2 states that nothing in Article 9 shall preclude
the use or disclosure of information to the extent that there
is an obligation to do so under the Constitution of the
Requesting Party in a criminal prosecution.\12\ Any such
proposed disclosure and the provision of the Constitution under
which such disclosure is required shall be notified by the
Requesting Party to the Requested Party in advance of any such
possible or proposed use or disclosure.
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\12\ See, Brady v. Maryland, 373 U.S. 83 (1963).
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Paragraph 3 states that once results of an executed request
have been used for the purpose for which they were provided
and, in the course of such use, have been made public in the
Requesting Party in accordance with the Treaty, the Requesting
Party is free to use the evidence for any purpose. So, for
example, 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 9 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
Russian 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 10--Obtaining Testimony and Evidence in the Requested Party
Paragraph 1 states that a person in the Requested Party
from whom testimony and evidence, including documents, records,
or other items, is sought shall be compelled, if necessary, to
appear and testify and produce such documents, records, or
items, in accordance with the law of the Requested Party. The
compulsion contemplated by this article can be accomplished by
subpoena or any other means available under the law of the
Requested Party. \13\
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\13\ The U.S. and Russian delegations discussed the possibility of
an Annex to the Treaty including forms for the Certification of
Business Records and the Certification of Absence of Business Records
along the lines of those included in the Annex to the U.S.-Czech
Republic Legal Assistance Treaty, Treaty Doc. 105-47, and discussed in
Article 10 of the U.S.-Czech Republic Treaty. The delegations
ultimately decided not to include such forms in the Treaty, but the
Russian delegation indicated that in practice the Russian Government
would ask an appropriate person to complete such forms whenever the
U.S. Central Authority specifically requested such assistance in
connection with a request under this Treaty. Such cooperation on the
part of the Russian Government would be consistent with Article 7(3) of
the Treaty. As a result, the U.S. expects to use forms along the lines
of Forms A and B attached to the U.S.-Czech Republic Treaty to
facilitate the effective use of the U.S.-Russia Treaty.
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Paragraph 2, read in conjunction with Article 7.7, provides
that any persons specified in the request, including the
defendant and his counsel in criminal cases, shall be permitted
by the Requested Party to be present and permitted to pose
questions directly or to formulate questions that shall be
posed to the person giving the testimony, and to make a
verbatim transcript of the proceeding, using technical means if
necessary.
Paragraph 3 states that if a witness asserts a claim of
immunity, incapacity, or privilege under the laws of the
Requesting Party, the Requested Party shall nonetheless take
the evidence and turn it over to the Requesting Party along
with notice that it was obtained over a claim of privilege. The
applicability of the privilege can then be determined in the
Requesting Party, where the scope of the privilege and the
legislative and policy reasons underlying the privilege are
best understood. A similar provision appears in many of our
recent mutual legal assistance treaties.\14\ It is understood
that when a person asserts a claim of immunity, incapacity or
privilege under the laws of the Requested Party, that claim
will be resolved in accordance with the law of the Requested
party. This is consistent with Article 7(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 Party. Thus,
a witness questioned in the United States pursuant to a request
from Russia is guaranteed the right to invoke any of the
testimonial privileges (e.g., attorney client, husband-wife)
available in the United States as well as the constitutional
privilege against self-incrimination, to the extent that it
might apply in the context of evidence being taken for foreign
proceedings.\15\ A witness testifying in Russia may raise any
of the similar privileges available under the law of Russia.
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\14\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty,
signed at Bridgetown February 28, 1996, entered into force March 3,
2000, art. 8(4).
\15\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Article 11--Obtaining Testimony in the Requesting Party
This article provides that upon request, the Requested
Party shall invite persons in that Party to travel to the
Requesting Party to appear before an appropriate authority. The
Requesting Party would be expected to pay the expenses of such
an appearance pursuant to Article 8. Therefore, Article 11
provides that the Requesting Party must indicate the extent to
which expenses and allowances will be paid to the invited
person. 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. A person who agrees to appear in
the Requesting Party may request an advance, which may be
provided through the Embassy or a consulate of the Requesting
Party, to cover expenses.
The Central Authority of the Requested Party shall promptly
inform the Central Authority of the Requesting Party of the
invitee's response. An appearance in the Requesting Party under
this article is not mandatory, and the invitation may be
refused by the prospective witness.
Paragraph 2 provides that a person appearing in the
Requesting Party 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 Party from the Requested Party. 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 Party pursuant to this provision or thereafter. If
such guarantee cannot be provided for any reason, the Central
Authority of the Requesting Party shall indicate this in the
request in order to inform the invited person, who may then
decide whether to appear in view of the fact that such
guarantees could not be provided.
Paragraph 3 states that any safe conduct provided for under
this article expires seven days after the Central Authority of
the Requesting Party has notified the Central Authority of the
Requested Party that the person's presence is no longer
required, or if the person leaves the territory of the
Requesting Party and thereafter returns to it. However, the
Central Authority of the Requesting Party 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 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 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
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.\16\
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\16\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for four federal prisoners to be transported to the United
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells,
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old
Bailey'' (Central Criminal Court) in London.
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Paragraph 1 provides an express legal basis for cooperation
in these matters. It is based on Article 26 of the 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 persons in
custody in one Party whose presence in the other Party is
sought for purposes of legal assistance under the Treaty shall
be transferred in custody for that purpose provided that the
person consents and the Central Authorities of both states
agree. This would also cover a situation in which a person in
custody in the United States on a criminal matter has sought
permission to travel to another country to be present at a
deposition being taken there in connection with the case.\19\
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\17\ 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.
\18\ This is 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.
\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 for the receiving
Party to keep such a person in custody throughout the person's
stay there, unless the sending Party specifically authorizes
release. This paragraph also authorizes and obligates the
receiving Party to return the person in custody to the sending
Party 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 Party.
In keeping with the obligation under subparagraph 2(2) to
return a person transferred under this article, subparagraph
(3) explicitly prohibits the Party to whom a person is so
transferred from requiring the transferring Party to initiate
extradition proceedings for that purpose. Paragraph (2)(4)
states that the person is to receive credit for time served
while in the custody of the receiving Party. This is consistent
with U.S. practice in these matters. Paragraph 2(5) states that
where the sentence imposed has expired, or where the sending
Party has advised the receiving Party that the transferred
person is no longer required to be held in custody, that person
shall be treated as an invited person pursuant to Article 11 or
returned to the sending Party.
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 Party is unable or unwilling to
provide satisfactory assurances in this regard, the person is
free to decline to be transferred.
Article 13--Production of Official Records
Paragraph 1 obliges each Party to furnish the other with
copies of publicly available records, including documents or
information in any form, possessed by an executive,
legislative, or judicial authority in the Requested Party. The
phrase ``executive, legislative, or judicial authority'' covers
all levels of government, including, for the United States,
federal, state and local levels of government. \20\
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\20\ The U.S. and Russian delegations discussed the possibility of
an Annex to the Treaty including forms for the Certification of
Official Records and the Certification of Absence of Official Records
along the lines of those included as Forms C and D in the Annex to the
U.S.-Czech Republic Legal Assistance Treaty, Treaty Doc. 105-47, and
discussed in Article 13 of the U.S.-Czech Republic Treaty. The
delegations ultimately decided not to include such forms in the Treaty,
but the Russian delegation indicated that in practice the Russian
Government would ask an appropriate person to complete such forms
whenever the U.S. Central Authority specifically requested such
assistance in connection with a request under this Treaty. Such
cooperation on the part of the Russian Government would be consistent
with Article 7(3) of the Treaty. As a result, the U.S. expects to use
forms along the lines of Forms C and D attached to the U.S. Czech
Republic Treaty to facilitate the effective use of the U.S.-Russia
Treaty.
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Paragraph 2 provides that the Requested Party 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 Party 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 competent authorities. It is intended that
the Central Authority of the Requested Party, in close
consultation with the interested law enforcement authorities of
that Party, would determine that extent and those conditions.
The discretionary nature of this provision was deemed
necessary because government files in each Party contain some
kinds of information that would be available to investigative
authorities in that Party, 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 Party in
return for a promise that it not be divulged. Of course, a
request could be denied under this clause if the Requested
Party'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 that such information is 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
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 Russia under this article in appropriate cases.
Article 14--Location or Identification of Persons and Items
This article provides for ascertaining the whereabouts in
the Requested Party of persons (such as witnesses, potential
defendants, or experts) or items if the Requesting Party seeks
such information. This is a standard provision contained in all
U.S. mutual legal assistance treaties. The Treaty requires only
that the Requested Party make ``best efforts'' to locate the
persons or items sought by the Requesting Party. The extent of
such efforts will vary, of course, depending on the quality and
extent of the information provided by the Requesting Party
concerning the suspected location and last known location.
The obligation to locate persons or items is limited to
persons or items that are or may be in the territory of the
Requested Party. 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 Party 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 Party
to use its best efforts to effect the service of documents such
as summons, complaints, subpoenas, or other legal papers.
Identical provisions appear in most U.S. mutual legal
assistance treaties. \21\
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\21\ 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
Party, service under the Treaty will be made by registered mail
(in the absence of any request by Russia 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 Party,
the documents should be transmitted by the Central Authority of
the Requesting Party within a reasonable time before the date
set for any such appearance.
Paragraph 3 requires that proof of service be returned to
the Requesting Party in the manner specified in the request.
Article 16--Search and Seizure
It is sometimes in the interests of justice for one Party
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.\22\ This article creates a
formal framework for handling such requests and is similar to
provisions in many other U.S. mutual legal assistance
treaties.\23\
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\22\ 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).
\23\ 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 Party.'' This means that normally a request to
the United States from Russia will have to be supported by a
showing of probable cause for the search. A U.S. request to
Russia 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 had custody of a seized item shall certify the identity,
the continuity of its custody, and the integrity of its
condition. \24\
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\24\ The U.S. and Russian delegations discussed the possibility of
an Annex to the Treaty including a form for Certification with Respect
to Seized Items along the lines of that included as Form E in the Annex
to the U.S.-Czech Republic Legal Assistance Treaty, Treaty Doc. 105-47,
and discussed in Article 16 of the U.S.-Czech Republic Treaty. The
delegations ultimately decided not to include such forms in the Treaty,
but the Russian delegation indicated that in practice the Russian
Government would ask an appropriate person to complete such forms
whenever the U.S. Central Authority specifically requested such
assistance in connection with a request under this Treaty. Such
cooperation on the part of the Russian Government would be consistent
with Article 7(3) of the Treaty. As a result, the U.S. expects to use
forms along the lines of Form E attached to the U.S.-Czech Republic
Treaty to facilitate the effective use of the U.S.-Russia Treaty.
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Paragraph 3 states that the Requested Party may require
that the Requesting Party agree to terms and conditions
necessary to protect the interests of third parties in the item
to be transferred.
Article 17--Transfer of Documents, Records, and Other Items
Paragraph 1 provides that upon request for the transfer of
documents or records, a Requesting Party must provide true
copies of the documents or records. If the Requesting Party,
however, expressly requests the transfer of original documents
or records, the Requested Party must make every effort to
comply with the request.
Paragraph 2 states that, unless prohibited by its laws, a
Requested Party must transfer documents, records, or other
items in such a manner or with a particular certification as
may be requested by the Requesting Party in order to ensure
admissibility under the laws of the Requesting Party. The
second sentence of this paragraph notes that the Central
Authorities of the Parties will directly communicate, pursuant
to Article 3(3), with respect to the requirements for
admissibility in their respective legal systems.
The last sentence of paragraph 2 provides that documents,
records, and other items transferred in accordance with this
paragraph--that is, those produced pursuant to Articles 10, 13
and 16--shall not require any further certification in order to
make them admissible. Of course, it will be up to the judicial
authority presiding over the trial to determine whether the
evidence, in fact, should be admitted. The evidentiary tests
other than authentication (such as relevance or materiality)
must be established in each case.
Paragraph 3 of this article provides that the Requested
Party may require that any documents, records, or items
furnished under the Treaty be returned as soon as possible. The
delegations understood that this requirement would be invoked
only if the Central Authority of the Requested Party
specifically requests it at the time that the items are
delivered to the Requesting Party. It is anticipated that
unless original records or articles of significant intrinsic
value are involved, the Requested Party will not usually
request return of the times, but this is a matter best left to
development in practice.
Article 18--Proceeds and Instrumentalities of Crimes
A major goal of the Treaty is to enhance the efforts of
both the United States and Russia in combating organized crime.
One significant strategy in this effort is action by U.S.
authorities to seize and confiscate money, property, and other
proceeds of members of the organized crime groups.
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 obligates
the Parties to assist one another, in accordance with their
laws, in locating, immobilizing, and seizing proceeds,
including earnings from, or that are the result of, criminal
activities, as well as instrumentalities of offenses, for
purposes of: forfeiture; restitution to victims of crime; and
collection of fines imposed pursuant to judicial decisions in
criminal matters. Thus, if the law of a Requested Party enable
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. \25\
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\25\ In Russia, unlike the United States, the law does not allow
for civil forfeiture. However, Russian law permits forfeiture in
criminal cases, and ordinarily a defendant must be convicted in order
for Russian authorities to confiscate the defendant's property.
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Paragraph 2 of Article 18 authorizes the Central Authority
of one Party to notify the other Party of the existence in the
latter's territory of proceeds and instrumentalities of
offenses that may be forfeitable so that the other Party may
take appropriate measures under paragraph 3 of this article.
The term ``proceeds and 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 Russia, the assets 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 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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\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 Title 18 United States Code, 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 18 of the Treaty will enable this legislation to be
even more effective.
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\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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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.\29\
Paragraph 3 is consistent with this framework in that it
obligates a Party having custody over proceeds or
instrumentalities of offenses to transfer immobilized, seized,
or forfeited proceeds, or the proceeds of the sale of such
assets, to the other Party, but only if such transfer is
permitted by its laws and to the extent it deems it appropriate
and within the time frame and under the conditions it deems
acceptable.
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\29\ See, Title 18, United States Code, Section 981(i)(1).
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Article 19--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article anticipates that
the Contracting Parties will share those ideas with one
another, 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 recent United
States mutual legal assistance treaties. It is anticipated that
the Central Authorities will conduct regular consultations
pursuant to this article.
Article 20--Scope of Application
This article provides 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. Provisions of this kind are common in law
enforcement agreements.
Article 21--Other Legal Bases for Cooperation
This article states that assistance and procedures set
forth in this Treaty shall not prevent either Party from
cooperating and granting assistance to the other Party through
the provisions of other applicable international treaties and
agreements, national laws, and practices. The Treaty would
leave the provisions of United States and Russian law on
letters rogatory completely undisturbed, and would not alter
any pre-existing agreements \30\ concerning investigative
assistance.
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\30\ See, e.g., Agreement on Cooperation and Mutual Assistance in
Customs Matters, signed at Washington Sept. 28, 1994, entered into
force December 15, 1994; Convention for the Avoidance of Double
Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on
Income and Capital, signed at Washington June 17, 1992, entered into
force December 16, 1993.
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Article 22--Entry Into Force and Termination
Paragraph 1 states that the Treaty is subject to
ratification and shall enter into force upon the exchange of
instruments of ratification, which shall take place as soon as
possible.
Paragraph 2 provides that the Agreement between the
Government of the United States of America and the Government
of the Russian Federation on Cooperation in Criminal Matters,
signed on June 30, 1995, shall cease to be in force upon entry
into force of this Treaty.
Paragraph 3 states that either Party may terminate this
Treaty via written notice to the other Party 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 United States
mutual legal assistance treaties.
VII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE Treaty WITH THE
RUSSIAN FEDERATION ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS, SUBJECT TO CONDITIONS.
The Senate advises and consents to the ratification of the
Treaty Between the United States of America and the Russian
Federation on Mutual Legal Assistance in Criminal Matters,
signed at Washington on June 17, 1999 (Treaty Doc. 106-22; in
this resolution referred to as the ``Treaty''), subject to the
conditions in section 2.
SEC. 2. CONDITIONS.
The advice and consent of the Senate under section 1 is
subject to the following conditions:
(1) Treaty interpretation.--The Senate reaffirms
condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe (CFE) of
November 19, 1990 (adopted at Vienna on May 31 1996),
approved by the Senate on May 14, 1997 (relating to
condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988).
(2) Limitation on assistance.--Pursuant to the right
of the United States under the Treaty to deny legal
assistance under the Treaty that would prejudice the
essential public policy or interests of the United
States, the United States shall deny any request for
such assistance if the Central Authority of the United
States (as designated in Article 3(2) of the Treaty),
after consultation with all appropriate intelligence,
anti-narcotic, and foreign policy agencies, has
specific information that a senior Government official
of the requesting party who will have access to
information to be provided as part of such assistance
is engaged in a felony, including the facilitation of
the production or distribution of illegal drugs.
(3) Supremacy of the Constitution.--Nothing in the
Treaty requires or authorizes the enactment of
legislation or the taking of any other action by the
United States that is prohibited by the Constitution of
the United States as interpreted by the United States.
A P P E N D I X
----------
Hon. Colin L. Powell,
Secretary of State,
Washington, DC, December 11, 2001.
Hon. Joseph R. Biden, Jr, Chairman,
United States Senate,
Committee on Foreign Relations,
Washington, DC.
Dear Mr. Chairman: I am writing to seek your support to
improve legal cooperation between the United States and Russia
as an important weapon in our war on terrorism and other
serious crimes.
I discussed this priority when I met with Foreign Minister
Ivanov in Moscow December 9. While law enforcement cooperation
has been increasing steadily for some time, Minister Ivanov
told me that entry into force of our Mutual Legal Assistance
Treaty would provide a solid legal and legally-binding basis
for our work on combating transnational organized crime and
international terrorism. The Russians have indicated that
Russia's legal authority to assist us in criminal
investigations and prosecutions, including those connected with
September 11, will be significantly enhanced once the Treaty is
brought into force.
I explained to Minister Ivanov that the Administration was
seeking rapid action on advice and consent to ratification by
the Senate. He assured me that the Russian Federation would
work closely with the United States to ensure the effective
implementation of this Treaty.
Sincerely,
Colin L. Powell.