[Senate Executive Report 117-4]
[From the U.S. Government Publishing Office]
117th Congress } { Exec. Rept.
SENATE
2d Session } { 117-4
======================================================================
TREATIES BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF
CROATIA ON EXTRADITION AND MUTUAL LEGAL ASSISTANCE
_______
June 23, 2022.--Ordered to be printed
_______
Mr. Menendez, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 116-2]
The Committee on Foreign Relations, to which was referred
the Agreement between the Government of the United States of
America and the Government of the Republic of Croatia
comprising the Instrument as contemplated by Article 3(2) of
the Agreement on Extradition between the United States of
America and the European Union, signed June 25, 2003, as to the
Application of the Treaty on Extradition signed 25 October 1901
(the ``U.S.-Croatia Extradition Agreement''), and the Agreement
between the Government of the United States of America and the
Government of the Republic of Croatia comprising the Instrument
as contemplated by Article 3(3) of the Agreement on Mutual
Legal Assistance between the United States of America and the
European Union signed at Washington on June 25, 2003 (the
``U.S.-Croatia Mutual Legal Assistance Agreement''), both
signed at Washington on December 10, 2019 (Treaty Doc. 116-2),
having considered the same, reports favorably thereon with one
declaration with respect to each, as indicated in the
resolutions of advice and consent, and recommends that the
Senate give its advice and consent to ratification thereof, as
set forth in this report and the accompanying resolutions of
advice and consent.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
(A) The U.S.-Croatia Extradition Agreement.......................2
(B) The U.S.-Croatia Mutual Legal Assistance Agreement...........3
III. Entry into Force and Termination.................................4
IV. Committee Action.................................................4
V. Committee Recommendation and Comments............................4
VI. Explanation of the U.S.-Croatia Extradition Agreement............4
VII. Explanation of the U.S.-Croatia Mutual Legal Assistance Agreement9
VIII.Text of Resolution of Advice and Consent to Ratification........14
(A) The U.S.-Croatia Extradition Agreement......................14
(B) The U.S.-Croatia Mutual Legal Assistance Agreement..........14
I. Purpose
The purpose of the U.S.-Croatia Extradition Agreement is to
modernize in important respects the Treaty between the United
States of America and the Kingdom of Serbia for the Extradition
of Fugitives from Justice, signed October 25, 1901, which is
currently in force between the United States of America and the
Republic of Croatia. The purpose of the U.S.-Croatia Mutual
Legal Assistance Agreement is to formalize and strengthen the
institutional framework for legal assistance between the United
States of America and the Republic of Croatia in criminal
matters.
II. Background
A. U.S.-CROATIA EXTRADITION AGREEMENT
The United States is currently party to more than 100
bilateral extradition treaties, including a treaty with the
Kingdom of Serbia for the Extradition of Fugitives from
Justice, which was signed on October 25, 1901, and entered into
force on June 12, 1901 (hereafter the ``1901 treaty''). The
1901 treaty applies to the Republic of Croatia as a successor
state to the former Socialist Federal Republic of Yugoslavia.
The U.S.-Croatia Extradition Agreement serves to implement,
as between the two Parties, the Agreement on Extradition
between the United States of America and the European Union
(``the U.S.-EU Extradition Agreement''), which was signed on
June 25, 2003 and entered into force on February 1, 2010.
Application of the U.S.-EU Extradition Agreement to the 1901
treaty, as reflected in the U.S.-Croatia Extradition Agreement,
meaningfully updates both the procedural and substantive
aspects of the extradition relationship between the United
States and the Republic of Croatia.
The U.S.-Croatia Extradition Agreement is designed to
modernize the 1901 treaty. Most significantly, it replaces the
outdated list of extraditable offenses with the modern ``dual
criminality'' approach, thereby enabling coverage of newer
offenses, such as cyber-related crimes, environmental offenses,
and money laundering. In addition, it includes several
provisions updating and streamlining procedural requirements
for preparing and transmitting extradition documents.
(B) THE U.S.-CROATIA MUTUAL LEGAL ASSISTANCE AGREEMENT
Mutual Legal Assistance Treaties (``MLATs'') are
international agreements that establish a formal, streamlined
process by which governments may gather information and
evidence in other countries for use in criminal investigations
and prosecutions. The U.S.-Croatia Mutual Legal Assistance
Agreement is designed to strengthen the institutional framework
for legal assistance between the United States of America and
the Republic of Croatia in criminal matters. In order for the
United States to successfully prosecute criminal activity that
is transnational in scope, it is often necessary to obtain
evidence or testimony from a witness in another country. While
U.S. federal courts may issue subpoenas to U.S. nationals
overseas, they lack the authority to subpoena foreign nationals
found in other countries or the authority to subpoena evidence
in a foreign country. Additionally, effectuating service of a
subpoena to U.S. persons abroad may be difficult.
In the absence of an applicable international agreement,
the customary method for obtaining evidence or testimony in
another country is via a ``letter rogatory,'' which tends to be
an unreliable and time-consuming process. It generally involves
a court in one country sending a formal communication to a
government authority in another country, requesting certain
evidence or the testimony of a person within the latter's
jurisdiction, for use in a pending action. The State Department
advises that the ``letter-rogatory'' process can often take a
year or more and, unless undertaken pursuant to an
international agreement, compliance is a matter of judicial
discretion. Furthermore, the scope of foreign judicial
assistance might also be limited by domestic information-
sharing laws, such as bank and business secrecy laws, or be
confined to evidence relating to pending cases rather than
preliminary, administrative, or grand jury investigations
conducted prior to the filing of formal charges. Execution of
``letters rogatory'' is usually carried out under the judicial
norms of the responding country. However, responding country
norms may be insufficiently compatible with U.S. law such that
the resulting evidence is rendered inadmissible in a U.S.
court. MLATs are designed to overcome these and similar
problems.
In view of the Republic of Croatia's accession to the EU on
July 1, 2013, the U.S.-Croatia Mutual Legal Assistance
Agreement serves to implement, as between the two Parties, the
Agreement on Mutual Legal Assistance between the United States
of America and the European Union, signed on June 25, 2003
(``the U.S.-EU Mutual Legal Assistance Agreement''), and which
entered into force on February 1, 2010. Consistent with the
U.S.-EU Mutual Legal Assistance Agreement, the U.S.-Croatia
Mutual Legal Assistance Agreement addresses identification of
bank information, joint investigative teams, video-
conferencing, expedited transmission of requests, assistance to
administrative authorities, use limitations, confidentiality,
and grounds for refusal. This approach is consistent with that
taken with respect to other EU Member States, e.g., Bulgaria,
Denmark, Finland, Malta, Portugal, Slovak Republic, and
Slovenia.
III. Entry into Force and Termination
Article 5, in both the U.S.-Croatia Extradition Agreement
and the U.S.-Croatia Mutual Legal Assistance Agreement,
contains final clauses addressing entry into force and
termination. Under Article 5(1), each Agreement is subject to
the completion of the countries' respective, applicable,
internal procedures for entry into force, and will enter into
force upon the completion of an exchange of notifications, upon
the date of receipt of the latter notification. Under Article
5(2), each Agreement is terminated in the event of the
respective termination of the U.S.-EU Extradition Agreement or
the U.S.-EU Mutual Legal Assistance Agreement. It further notes
that the Parties may alternatively agree to continue to apply
the provisions of the U.S.-Croatia Extradition Agreement and
the U.S.-Croatia Mutual Legal Assistance Agreement, in whole or
in part.
IV. Committee Action
The Committee on Foreign Relations reviewed both the U.S.-
Croatia Extradition Agreement and the U.S.-Croatia Mutual Legal
Assistance Agreement (together, the ``Treaties'') at a hearing
on April 6, 2022, at which representatives of the Departments
of State and Justice testified. On May 4, 2022, the committee
considered the Treaties and ordered them favorably by voice
vote, with the recommendation that the Senate give its advice
and consent to the ratification of the Treaties subject to the
declaration that they are self-executing.
V. Committee Recommendation and Comments
The committee recommends favorably the Treaties with the
Republic of Croatia. The U.S.-Croatia Extradition Agreement
modernizes a treaty that is over a century old and provides a
more flexible ``dual criminality'' provision that will
incorporate a broader range of criminal offenses than is
currently covered. In addition, the U.S.-Croatia Extradition
Agreement will facilitate the ability of the United States to
prosecute more effectively, through new provisions related to
requests from more than one State, simplified extradition, and
temporary surrender.
The committee believes the U.S.-Croatia Mutual Legal
Assistance Agreement, which would enhance law enforcement
cooperation between the United States and the Republic of
Croatia, would further U.S. efforts in fighting terrorism and
transnational crime, while still comporting with existing U.S.
legal requirements and practice.
VI. Explanation of the U.S.-Croatia Extradition Agreement
What follows is an article-by-article description of the
provisions of the U.S.-Croatia Extradition Agreement, including
the Annex, prepared by the Departments of State and Justice.
Article 1 of the U.S.-Croatia Extradition Agreement
acknowledges that the U.S.-EU Extradition Agreement is applied
in relation to the 1901 Extradition Treaty and specifies the
articles of the U.S.-EU Extradition Agreement applicable
between the United States and Croatia. The specified articles
of the U.S.-EU Extradition Agreement are:
(a) Article 4, governing the scope of the extraditable
offenses;
(b) Articles 5(1) and 7(1), governing the mode of
transmission of the extradition request and supporting
documents, and providing for an alternative method for
transmission of the request for extradition and
supporting documents following provisional arrest;
(c) Article 5(2), governing the requirements
concerning certification, authentication or
legalization of the extradition request and supporting
documents;
(d) Article 6, authorizing an alternative channel of
transmission of requests for provisional arrest;
(e) Article 8, governing the channel to be used for
submitting supplementary information;
(f) Article 9, governing the temporary surrender of a
person being proceeded against or serving a sentence in
the requested state;
(g) Article 10, governing the decision on requests
made by several states for the extradition or surrender
of the same person;
(h) Article 11, governing the use of simplified
extradition procedures;
(i) Article 12, governing requests for transit of
persons in custody;
(j) Article 13, governing extradition with respect to
conduct punishable by death in the requesting State;
and,
(k) Article 14, governing consultations where the
requesting state contemplates the submission of
particularly sensitive information in support of a
request for extradition.
Article 2 establishes that the Annex reflects the
integrated text of the 1901 Extradition Treaty and the
provisions of the U.S.-EU Extradition Agreement that apply
between the two countries, and confirms that the Annex is an
integral part of the U.S.-Croatia Extradition Agreement that
applies upon the Agreement's entry into force. Article 2
further provides for minor numbering and terminological
modifications in the Annex outside the scope of the provisions
identified in Article 1, none of which reflect substantive
changes to the 1901 Extradition Treaty, and defines ``high
contracting parties,'' as used in the 1901 Extradition Treaty,
to mean the Governments of the United States of America and the
Republic of Croatia.
Article 3 specifies that the U.S.-Croatia Extradition
Agreement applies to offenses committed prior to and following
entry into force.
Article 4 provides that the U.S.-Croatia Extradition
Agreement does not apply to requests for extradition made prior
to its entry into force, except for certain enumerated
provisions. In accordance with Article 16 of the U.S.-EU
Extradition Agreement, certain articles of the Annex, including
the object and purpose (Article I), extraditable offenses
(Article II), and temporary surrender (Article X bis)
provisions shall apply to extradition requests predating the
U.S.-Croatia Extradition Agreement's entry into force.
Article 5 contains final clauses addressing the U.S.-
Croatia Extradition Agreement's entry into force and
termination. Article 5(1) provides that the U.S.-Croatia
Extradition Agreement is subject to the completion of the
countries' respective, applicable, internal procedures for
entry into force, and will enter into force upon the completion
of an exchange of notifications, upon the date of receipt of
the latter notification. Article 5(2) provides that the U.S.-
Croatia Extradition Agreement shall be terminated in the event
that the U.S.-EU Extradition Agreement is terminated, in which
case the 1901 Extradition Treaty would be applied. It further
notes that the Parties may in the alternative agree to continue
to apply the provisions of the U.S. Croatia Extradition
Agreement, in whole or in part.
Pursuant to Articles 1 and 2 of the U.S.-Croatia
Extradition Agreement, the Annex reflects the integrated text
of the 1901 Extradition Treaty and the provisions derived from
the U.S.-EU Extradition Agreement that are to be applied to the
1901 Extradition Treaty (``the Integrated Treaty Text''). The
following is an article-by-article description of the
provisions reflected in the Annex. In addition to the
modifications required by the U.S.-EU Extradition Agreement,
the Integrated Treaty Text is updated throughout to refer
directly to the Republic of Croatia, refer to ``State'' or
``States'' rather than ``country'' or ``countries,''
respectively, and add captions and enumerated paragraphs for
ease of reference.
Article I is modified, consistent with Article 4 of the
U.S.-EU Extradition Agreement, to reflect--together with
Article II(1)--the basic obligation for each Party to extradite
to the other persons who are sought for prosecution or for
imposition or service of a sentence with respect to an
extraditable offense, provided there is sufficient evidence
under the laws of the requested State.
Article II, which is taken from Article 4 of the U.S.-EU
Agreement, provides for a ``dual criminality'' approach to
extraditable offenses. Article II(1) defines an offense as
extraditable if the conduct on which the offense is based is
punishable under the laws in both States by deprivation of
liberty for a period of more than one year or by a more severe
penalty. The approach taken in the Integrated Treaty Text with
respect to extraditable offenses is consistent with the modern
``dual criminality'' approach, rather than the old ``list''
approach, and is one of the key benefits of integrating the
texts. Use of a ``dual criminality'' clause, rather than the
categories of offenses listed in the 1901 Extradition Treaty,
obviates the need to renegotiate or supplement the 1901
Extradition Treaty as additional offenses become punishable
under the laws of both States. Use of the dual criminality
standard also ensures a comprehensive coverage of criminal
conduct for which extradition might be sought. Article II(1)
further defines an extraditable offense to include an attempt
or a conspiracy to commit, or participation in the commission
of, an extraditable offense. The Parties intended to include,
under the broad description of ``participation,'' the offenses
of aiding, abetting, counseling or procuring the commission of
an offense, as well as being an accessory to a request.
Article II(2) directs that if extradition is granted for an
extraditable offense, it must also be granted for any other
offense specified in the request that is punishable by one
year's deprivation of liberty or less, provided that all other
requirements for extradition are met.
Article II(3) establishes that an offense is an
extraditable offense regardless of whether: (a) the laws in the
requesting and requested State place the offense in the same
category or use the same terminology in defining the offense;
(b) the offense is one for which U.S. federal law requires the
showing of such matters as interstate transportation, or use of
the mails or of other facilities affecting interstate or
foreign commerce, such matters being merely for the purpose of
asserting federal jurisdiction; or, (c) the laws of the
requesting and requested States provide for the same kinds of
taxes, customs duties, or controls on currency or on the import
or export of the same kinds of commodities, in criminal cases
related to such matters.
Article II(4) provides that, with regard to offenses
committed outside the territory of the requesting State,
extradition shall be granted if the laws of the requested State
provide for the punishment of such conduct committed outside
its territory in similar circumstances. If the laws of the
requested State do not so provide, the executive authority of
the requested State may, at its discretion, grant extradition
provided that all other applicable requirements for extradition
are met.
Article III expands and updates the procedures and required
documents for extradition Article III(1), taken from Articles
5(1) and 7(1) of the U.S.-EU Extradition Agreement, requires
transmission of extradition requests through the diplomatic
channel, allowing that if the person sought is held under
provisional arrest this requirement may be met by submitting
the request to the embassy of the requested State located in
the requesting State. It further specifies that in such cases,
the date of delivery to the embassy is the date of receipt for
purposes of satisfying the time limit established in Article
IV.
Article III(2) preserves original language from the 1901
Extradition Treaty.
Article III(3), taken from Article 5(2) of the U.S.-EU
Extradition Agreement, provides that documents bearing the seal
of the ministry of justice or ministry or department
responsible for foreign affairs of the requesting State shall
be admissible in extradition proceedings in the requested State
without further certification, authentication, or legalization.
The article also defines ``ministry of justice'' as the
Department of Justice for the United States and as the Ministry
of Justice for the Republic of Croatia, respectively.
Article III(4) preserves original language from the 1901
Extradition Treaty.
Article III bis, taken from Article 8 of the U.S.-EU
Extradition Agreement, allows the requested State to require
from the requesting State supplementary information within a
reasonable period of time if the requested State considers the
original request not to include sufficient information. It
further provides that such requests may be made and satisfied
directly between the respective ministries of justice.
Article III ter, taken from Article 14 of the U.S.-EU
Extradition Agreement, provides for consultations between the
Parties in cases where the requesting State is considering
submitting sensitive information as part of an extradition
request, to determine to what extent the information can be
protected by the requested State. If the requested State cannot
protect the information as sought, the requesting State may
nevertheless determine to include the information in the
request.
Article IV(1), taken from Article 6 of the U.S.-EU
Extradition Agreement, allows for provisional arrest requests
to be made directly between the respective ministries of
justice, or by using the facilities of the International
Criminal Police Organization (INTERPOL), as an alternative to
using the diplomatic channel.
Articles IV(2), V, VI, VI, and VIII preserve original
language from the 1901 Extradition Treaty.
Article VIII bis, taken from Article 13 of the U.S,-EU
Extradition Agreement, provides that where extradition is
sought for an offense that is punishable by death under the
laws of the requesting State but not under the laws of the
requested State, the requested State may grant extradition
subject to the condition that the death penalty, if imposed,
shall not be carried out. If the requesting State does not
accept such conditions, the request for extradition may be
denied
Article IX preserves original language from the 1901
Extradition Treaty.
Article X, taken from Article 10 of the U.S.-EU Extradition
Agreement, regards decisions on multiple requests for the
surrender of the same person. Article X(1) establishes that,
where the requested State receives requests from the requesting
State and one or more additional States for the extradition of
the same person, the executive authority of the requested State
shall determine to which State, if any, the person will be
surrendered. Article X(2) elaborates that if the Republic of
Croatia receives an extradition request from the United States
and a surrender request pursuant to a European arrest warrant
for the same person, the Minister of Justice of the Republic of
Croatia shall determine to which State, if any, the person will
be surrendered. Article X(3) sets forth a non-exhaustive list
of factors that the requested State will consider in
determining to which State a person will be surrendered,
according to the provisions of Article X(1) and (2).
Article X bis, taken from Article 9 of the U.S.-EU
Extradition Agreement, allows for temporary surrender for
purposes of prosecution in the requesting State, of a person
who is being proceeded against or serving a sentence in the
requested State. Its second paragraph provides further that a
person so surrendered will be kept in custody by the requesting
State and returned to the requested State following the
completion of proceedings in the requesting State, according to
conditions mutually agreed between the Parties. It also allows
that time spent in custody of the requesting State may be
deducted from the time remaining to be served in the requested
State.
Article X ter, taken from Article 11 of the U.S.-EU
Extradition Agreement, allows for simplified extradition,
consistent with the principles and procedures of the legal
system of the requested State, in cases where the person sought
has consented to surrender, which consent may also include
waiver of protection of the rule of specialty. In such
situations, the requested State shall surrender the person to
the requesting State as expeditiously as possible.
Article X quater, taken from Article 12 of the U.S.-EU
Extradition Agreement, concerns requests for transit of persons
in custody. Article X quater(1) provides that the Parties may
authorize transit through their respective territory of a
person surrendered to the other Party by a third state, or by
the other Party to a third state. Article X quater(2) specifies
that transit requests shall be made through the diplomatic
channel, or directly between the United States Department of
Justice and the Ministry of Justice of the Republic of Croatia.
It further allows that INTERPOL facilities may be used.
Finally, it specifies the substantive content of a transit
request, and that a person in transit must be detained during
the transit period.
Article X quater(3) provides that a transit request is not
required for air transit where no landing is scheduled in the
territory of the transited State. It allows for the transited
state to require a transit request in the case of an
unscheduled landing, and provides that all necessary measures
will be taken to prevent the person in custody from absconding
until transit is effected, so long as the transit request is
received within 96 hours of the unscheduled landing.
Article XI preserves original language from the 1901
Extradition Treaty, with minor revisions to the punctuation of
the first sentence.
Article XII provides for the 1901 Extradition Treaty to
remain in force for six months following notice of termination
from either Party.
VII. Explanation of the U.S.-Croatia Mutual Legal Assistance Agreement
What follows is an article-by-article description of the
provisions of the U.S.-Croatia Mutual Legal Assistance Treaty
prepared by the Departments of State and Justice.
Article 1 acknowledges that the U.S.-EU Mutual Legal
Assistance Agreement is applied between the United States of
America and Croatia, and identifies those articles of the U.S.-
EU Mutual Legal Assistance Agreement establishing the
substantive terms of the agreement. The identified articles of
the U.S.-EU Mutual Legal Assistance Agreement are:
(a) Article 4, governing the identification of
financial accounts and transactions;
(b) Article 5, governing the formation and activities
of joint investigative teams;
(c) Article 6, governing the taking of testimony of a
person located in the requested State by use of video
transmission technology between the requesting and
requested States;
(d) Article 7, governing the use of expedited means
of communication;
(e) Article 8, governing the providing of mutual legal
assistance to administrative authorities:
(f) Article 9, governing the limitation on use of
information or evidence provided to the requesting
State, and the conditioning or refusal of assistance on
data protection grounds;
(g) Article 10, governing the circumstances under
which a requesting State may seek the confidentiality
of its request; and
(h) Article 13, governing the invocation by the
requested State of grounds for refusal.
Article 2 establishes that the Annex is an integral part of
the U.S.-Croatia Mutual Legal Assistance Agreement and reflects
the provisions of the U.S.-EU Mutual Legal Assistance Agreement
applied between the United States of America and the Republic
of Croatia upon the entry into force of the U.S.-Croatia Mutual
Legal Assistance Agreement.
Article 3 specifies that the U.S.-Croatia Mutual Legal
Assistance Agreement applies to offenses committed prior to and
following entry into force.
Article 4 provides that the U.S.-Croatia Mutual Legal
Assistance Agreement does not apply to requests made prior to
its entry into force, save for certain limited exceptions. In
accordance with Article 12 of the U.S.-EU Mutual Legal
Assistance Agreement, provisions related to video conferencing
(Annex, Article 3) and the expedited transmission of requests
(Annex, Article 4) shall apply to requests made prior to the
U.S.-Croatia Mutual Legal Assistance Agreement's entry into
force.
Article 5 contains final clauses addressing the U.S.-
Croatia Mutual Legal Assistance Agreement's entry into force
and termination. Article 5(1) provides that the U.S.-Croatia
Mutual Legal Assistance Agreement is subject to the completion
of the countries' respective, applicable, internal procedures
for entry into force and will enter into force upon the
completion of an exchange of notifications, upon the date of
receipt of the latter notification. Article 5(2) provides that
the U.S.-Croatia Mutual Legal Assistance Agreement shall be
terminated in the event that the U.S.-EU Mutual Legal
Assistance Agreement is terminated, provided however that, in
the alternative, the Parties may agree to continue to apply the
provisions of the U.S.-Croatia Mutual Legal Assistance
Agreement, in whole or in part.
As provided in Article 2, the Annex reflects the provisions
of the U.S.-EU Mutual Legal Assistance Treaty applied between
the United States of America and the Republic of Croatia. The
following is an article-by-article description of these
provisions.
Article 1, taken from Article 4 of the U.S.-EU Mutual Legal
Assistance Agreement, regards the identification of bank
information. Article 1(1) provides that, upon request, the
requested State shall promptly ascertain whether banks in its
territory possess information on whether an identified natural
or legal person suspected of or charged with a criminal offense
is the holder of one or more bank accounts. The requested State
must also promptly communicate its findings to the requesting
State. Article 1(1) goes on to extend the same obligations to
identification of information regarding persons convicted or
otherwise involved in a criminal offense, information in the
possession of non-bank financial institutions, or financial
transactions unrelated to accounts.
Article 1(2) describes the information that must be
contained in requests for such information as may be requested
under the preceding paragraph. Article 1(3) identifies for each
Party the channels of transmission for requests under this
Article, which may be modified only by exchange of diplomatic
notes between the United States and the European Union. For the
United States, requests shall be transmitted by the attache
responsible for the Republic of Croatia of the Drug Enforcement
Administration and the Bureau of Immigration and Customs
Enforcement, for matters under their respective jurisdictions,
and the Federal Bureau of Investigation, for all other matters.
For the Republic of Croatia, requests shall be transmitted by
the Ministry of Justice.
Article 1(4) limits the scope of criminal activity in
relation to which the Parties will provide assistance under
this Article to money laundering or terrorist activity
punishable under the laws of both the requesting and requested
States, as well as any additional criminal activity as one
Party may subsequently notify to the other Party. U.S.
negotiators verified that under Croatian law assistance will be
available for a wide range of conduct associated with terrorism
(which includes the conduct criminalized in international
counterterrorism conventions to which they are party) and money
laundering with respect to an extremely broad range of
predicate offenses. Article 1(5) provides that requests under
this Article may not be denied on the grounds of bank secrecy.
Article 1(6) provides that the requested State shall respond to
a request for production of the records concerning the accounts
or transactions identified pursuant to this Article in
accordance with the requirements of its domestic law.
Article 2, taken from Article 5 of the U.S.-EU Mutual Legal
Assistance Agreement, regards the establishment and operation
of joint investigative teams. Article 2(1) allows for joint
investigative teams to be established and operated in the
respective territories of the United States of America and the
Republic of Croatia to facilitate criminal investigations or
prosecutions involving the United States and at least one
Member State of the European Union. Article 2(2) provides that
the operational procedures for the joint investigative team
will be agreed between the competent authorities of the
respective States concerned, as determined by those States.
Article 2(3) provides for direct communication among the
identified competent authorities, except where otherwise agreed
among the concerned States in light of a need for more central
coordination. This approach facilitates speed, efficiency and
clarity by providing in most cases for direct communications
among the affected law enforcement components, rather than
through a mutual legal assistance request transmitted through a
central authority, as would otherwise generally take place.
Article 2(4) establishes that where a joint investigative
team needs investigative measures to be taken in one of the
constituent States, a team member from that State may request
such measures from its own competent authorities without
requiring a mutual legal assistance request from the other
constituent States. The legal standard for obtaining the
measure is the applicable domestic standard in the state where
the measure is to be carried out. Thus, where an investigative
measure is to be carried out in the United States, for example,
a U.S. team member could do so by invoking existing domestic
investigative authority, and would share resulting information
or evidence seized pursuant to such an action with the foreign
authorities. A formal mutual legal assistance request would not
be required. In a case in which there is no domestic U.S.
jurisdiction and consequently a compulsory measure cannot be
carried out based on domestic authority, the provisions of 18
U.S.C. Section 3512 may furnish a separate legal basis for
carrying out such a measure.
Article 3, taken from Article 6 of the U.S.-EU Mutual Legal
Assistance Agreement, concerns the use of video conferencing.
Article 3(1) establishes that video transmission technology
shall be available between the United States of America and the
Republic of Croatia for the testimony of a witness or expert
located in the requested State, for use in a proceeding for
which mutual legal assistance is available. It further provides
that unless modified by this article, the procedure for taking
such testimony will follow the laws of the requested State.
Article 3(2) provides that the requesting State will bear the
cost of establishing and operating the video transmission,
unless otherwise agreed, and that other costs will be assigned
as agreed by the Parties. Article 3(3) allows for consultations
between the Parties to resolve legal, technical, or logistical
issues.
Article 3(4) provides that, without prejudice to
jurisdiction under the laws of the requesting State, the making
an intentionally false statement or other misconduct by the
witness or expert in the course of the video testimony is
punishable in the requested State in the same manner as if it
occurred in the course of its domestic proceedings. This is
already the case where the United States has been requested to
facilitate the taking of video testimony from a witness or
expert located in the United States on behalf of a foreign
State, since the proceeding to execute the request is a U.S.
proceeding and therefore penalties under U.S. law for perjury,
obstruction of justice, or contempt of court are applicable.
Article 3(5) notes that this Article is without prejudice to
other available legal means for obtaining testimony in the
requested State. Article 3(6) allows that the requested State
may make video conferencing available for purposes other than
those specified in Article 3(1), including for purposes of
identification of persons or objects, and taking of
investigative statements.
Article 4, taken from Article 7 of the U.S.-EU Mutual Legal
Assistance Agreement, allows requests and related
communications to be made by expedited means, with subsequent
formal confirmation if required by the requested State. The
requested State may also respond using expedited means.
Article 5, taken from Article 8 of the U.S.-EU Mutual Legal
Assistance Agreement, regards assistance to administrative
authorities. Article 5(1) provides that mutual legal assistance
will be afforded to national administrative authorities
investigating conduct pursuant to a specific administrative or
regulatory authority and with a view to a criminal prosecution
or referral for criminal prosecution or investigation. If the
administrative authority anticipates that no prosecution or
referral will take place, assistance is not available. It also
allows for, but does not require, assistance to be afforded to
other administrative authorities under similar circumstances
Article 5(2) provides that requests for assistance under this
Article will be transmitted between the U.S. Department of
Justice and the Ministry of Justice of the Republic of Croatia,
unless otherwise agreed
Article 6, taken from Article 9 of the U.S.-EU Mutual Legal
Assistance Agreement, regards limitations on use to protect
personal and other data. Article 6(1) permits the requesting
State to use evidence or information it has obtained from the
requested State for its criminal investigations and
proceedings, for preventing an immediate and serious threat to
its public security, for non-criminal judicial or
administrative proceedings directly related to its criminal
investigations, for non-criminal judicial or administrative
proceedings directly related to criminal investigation or
proceedings or for which assistance was provided under Article
5, and for any other purpose if the information or evidence was
made public within the framework of the proceedings for which
it was transmitted or pursuant to the above permissible uses.
Other uses of the evidence or information require the prior
consent of the requested State.
Article 6(2)(a) specifies that the article does not
preclude the requested State from imposing additional
conditions where the particular request for assistance could
not be granted in the absence of such conditions. Where such
additional conditions are imposed, the requested State may
require the requesting State to give information on the use
made of the evidence or information. Article 6(2)(b) provides
that generic restrictions with respect to the legal standards
in the requesting State for processing personal data may not be
imposed by the requested State as a condition under paragraph
2(a) to providing evidence or information. This provision is
further elaborated upon in the explanatory note to the U.S.-EU
Mutual Legal Assistance Agreement(regarding Article 9(2)(b) of
that Agreement), which specifies that the fact that the
requesting and requested States have different systems of
protecting the privacy of data does not give rise to a ground
for refusal of assistance and may not as such give rise to
additional conditions under Article 6(2)(a). Such refusal of
assistance could only arise in exceptional cases in which, upon
balancing the important interests involved in the particular
case, furnishing the specific data sought by the requesting
State would raise difficulties so fundamental as to be
considered by the requested State to fall within the
``'essential interests'' grounds for refusal contained in
Article 8. Article 6(3) provides that where, following
disclosure to the requesting State, the requested State becomes
aware of circumstances that may cause it to seek additional
conditions in a particular case, it may consult with the
requesting State to determine the extent to which the evidence
or information can be protected.
Article 7, taken from Article 10 of the U.S.-EU Mutual
Legal Assistance Agreement, requires the requested State, if
asked, to use its best efforts to keep confidential a request
and its contents, and to inform the requesting State if the
request cannot be executed without breaching confidentiality.
Article 8, taken from Article 13 of the U.S.-EU Mutual
Legal Assistance Agreement confirms that the U.S.-Croatia
Mutual Legal Assistance Agreement's provisions do not preclude
the assertion of a ground for refusal based on applicable,
legal principles, such as sovereignty, security, ordre public
or other essential interests, except where such ground for
refusal is precluded by Articles 1(5) (bank secrecy) and
6(2)(b) (generic restrictions relating to personal data) of the
U.S.-Croatia Mutual Legal Assistance Agreement.
VIII. Text of Resolution of Advice and Consent to Ratification
(A) THE U.S.-CROATIA EXTRADITION AGREEMENT
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Agreement between the Government of the United States of
America and the Government of the Republic of Croatia
comprising the instrument as contemplated by Article 3(2) of
the Agreement on Extradition between the United States of
America and the European Union, signed June 25, 2003, as to the
Application of the Treaty on Extradition signed on October 25,
1901 (the ``U.S.-Croatia Extradition Agreement''), signed at
Washington on December 10, 2019, (Treaty Doc. 116-2), subject
to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration: The U.S.-Croatia
Extradition Agreement is self-executing.
(B) THE U.S.-CROATIA MUTUAL LEGAL ASSISTANCE AGREEMENT
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION
The Senate advises and consents to the ratification of the
Agreement between the Government of the United States of
America and the Government of the Republic of Croatia
comprising the instrument as contemplated by Article 3(3) of
the Agreement on Mutual Legal Assistance between the United
States of America and the European Union signed at Washington
on June 25, 2003 (the ``U.S.-Croatia Mutual Legal Assistance
Agreement''), signed at Washington on December 10, 2019,
(Treaty Doc. 116-2), subject to the declaration of section 2.
SECTION 2. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration: The U.S.-Croatia Mutual
Legal Assistance Agreement is self-executing.
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