TREATY WITH HUNGARY ON LEGAL ASSISTANCE IN CRIMINAL MATTERSSenate Consideration of Treaty Document 104-20
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[Senate Treaty Document 104-20] [From the U.S. Government Printing Office] 104th Congress 1st SENATE Treaty Doc. Session 104-20 _______________________________________________________________________ TREATY WITH HUNGARY ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS __________ MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF HUNGARY ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT BUDAPEST ON DECEMBER 1, 1994 September 6, 1995.--Treaty was read the first time and, together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate LETTER OF TRANSMITTAL ---------- The White House, September 6, 1995. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Treaty Between the Government of the United States of America and the Government of the Republic of Hungary on Mutual Legal Assistance in Criminal Matters, signed at Budapest on December 1, 1994. I transmit also, for the information of the Senate, the report of the Department of State with respect to the Treaty. The Treaty is one of a series of modern mutual legal assistance treaties that the United States is negotiating in order to counter criminal activities more effectively. The Treaty should be an effective tool to assist in the prosecution of a wide variety of modern criminals, including members of drug cartels, ``white-collar'' criminals, and terrorists. The Treaty is self-executing. The Treaty provides for a broad range of cooperation in criminal matters. Mutual assistance available under the Treaty includes: (1) taking testimony or statements of persons; (2) providing documents, records, and articles of evidence; (3) serving documents; (4) locating or identifying persons or items; (5) transferring persons in custody for testimony or other purposes; (6) executing requests for searches and seizures; (7) assisting in forfeiture proceedings; and (8) rendering any other form of assistance not prohibited by the laws of the Requested State. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, August 4, 1995. The President, The White House. I have the honor to submit to you the Treaty between the Government of the United States of America and the Government of the Republic of Hungary on Mutual Legal Assistance in Criminal Matters (the ``Treaty''), signed at Budapest on December 1, 1994. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification. The Treaty covers mutual legal assistance in criminal matters. In recent years, similar bilateral treaties have entered into force with Argentina, The Bahamas, Canada, Italy, Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland, Thailand, Turkey, the United Kingdom (concerning the Cayman Islands), and Uruguay. Other similar treaties have been signed and ratified by the United States (but have not yet entered into force) with Belgium, Colombia, and Panama. In addition, treaties with Nigeria, Korea, and the United Kingdom have been transmitted to the Senate and await Senate consideration. This Treaty contains many provisions similar to those in the other treaties. It will enhance our ability to investigate and prosecute a variety of offenses, including violent crimes, drug trafficking, and fraud and other white-collar crimes. The Treaty is designed to be self-executing and will not require implementing legislation. Article 1 contains a non-exhaustive list of the major types of assistance to be provided under the Treaty, including taking the testimony or statements of persons; providing documents, records, and articles of evidence; serving documents; locating or identifying persons or items; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; assisting in forfeiture proceedings; and any other form of assistance not prohibited by the laws of the Requested State. The scope of the Treaty includes not only criminal offenses, but also proceedings related to criminal matters, which may be civil or administrative in nature. Moreover, the article declares that dual criminality is not required for assistance to be provided under the Treaty. In other words, assistance shall be provided without regard to whether the conduct involved would constitute an offense under the laws of the Requested State. The article makes it clear that the Treaty is designed to be utilized only by governmental authorities who seek evidence for use in criminal investigations and prosecutions. The Treaty is not intended to create any right in a private person to seek, suppress or exclude evidence. Article 2 provides for the establishment of Central Authorities and defines the Central Authorities for purposes of the Treaty. For the United States, the Central Authority is the Attorney General or a person designated by the Attorney General. For the Republic of Hungary, the Central Authority is the Minister of Justice and the Chief Public Prosecutor, or persons designated by them. The Central Authorities shall communicate directly between each other for purposes of the Treaty. This dual Central Authority arrangement for Hungary reflects the importance and independence of the Office of the Chief Public Prosecutor in the Hungarian criminal justice system. Although such an arrangement will be unique among U.S. treaties in the mutual assistance field, no practical problems with implementation of the Treaty are anticipated. Article 3 sets forth the circumstances under which the Requested State may deny assistance under the Treaty. A request may be denied if it relates to a political offense, or a military offense that would not be a crime under ordinary criminal law. In addition, a request may be denied if its execution would prejudice the sovereignty, security or similar essential interests of the Requested State, or if the request does not comply with the provisions of Article 4. Before denying assistance under Article 3, the Central Authority of the Requested State is required to consult with its counterpart in the Requesting State to consider whether assistance can be given subject to such conditions as it deems necessary. If the Requesting State accepts assistance subject to conditions, it shall comply with the conditions. If the Central Authority of the Requested State denies assistance, it shall inform the Central Authority of the Requesting State of the reasons for the denial. Article 4 prescribes the form and content of written requests under the Treaty, specifying in detail the information required in each request. The article specifies further information to be provided to the extent necessary and possible to assist in locating individuals and effecting particular types of assistance. Unless otherwise agreed, all requests and supporting documents shall be in the language of the Requested State. Article 5 requires the Requested State to comply promptly with a request, or to transmit it to the authorities with jurisdiction to do so. The competent authorities of the Requested State shall do everything in their power to execute a request. The judicial authorities of the Requested State shall have the authority to issue subpoenas, search warrants, or other orders necessary to execute the request. Requests are to be executed in accordance with the laws of the Requested State except to the extent the Treaty provides otherwise. However, the method of execution specified in the request shall be followed except insofar as it is prohibited by the laws of the Requested State. If the Central Authority of the Requested State determines that execution of the request would interfere with an ongoing criminal investigation or proceeding, it may postpone execution or, after consultations with the Requesting State, impose conditions on such execution. If the Requesting State accepts assistance subject to such conditions, it shall comply with them. Article 5 further requires the Requested State, if so requested, 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 6 apportions between the two States the costs incurred in executing a request. Generally, the Requested State pays all costs relating to the execution of the request, except for the fees of expert witnesses, travel and subsistence expenses for the travel of persons pursuant to Articles 10 or 11, and the costs of translation, interpretation, and transportation. Article 7 provides that the Central Authority of the Requested State may require that any information or evidence obtained under the Treaty not be used for investigations, proceedings, or prosecutions other than those described in the request without the prior consent of the Requested State. If the Requested State requests that information or evidence furnished be kept confidential or be used in accordance with conditions specified by its Central Authority, the Requesting State is required to use its best efforts to comply with the conditions specified. Once information is made public in the Requesting State in accordance with the Treaty, no further limitations on use apply. Article 8 provides that the Requested State may compel, if necessary, the taking of testimony or production of documents or other evidence in its territory on behalf of the Requesting State. The article requires the Requested State, upon request, to inform the Requesting State in advance of the date and place of the taking of testimony. Article 8 also requires the Requested State to permit the presence of any persons specified in the request (such as the accused, counsel for the accused, or other interested persons) and to permit such persons to question the person whose testimony is being taken or, if such direct questioning is not permitted, to submit questions to the appropriate authority. In the event that a person whose testimony or evidence is being taken asserts a claim of immunity, incapacity, or privilege under the laws of the Requesting State, the testimony or evidence shall be taken and the claim made known to the Requesting State for resolution by its authorities. Finally, Article 8 provides a mechanism for authentication of documentary evidence produced pursuant to this article and provides that no further authentication of certification shall be necessary in order for such information to be admissible in evidence in proceedings in the Requesting State. Article 9 requires that the Requested State provides the Requesting State with copies of publicly available records or information of government departments or agencies. The Requested State may further provide copies of records or information in the possession of a governmental or judiciary authority in that State but not publicly available, to the same extent and under the same conditions as it would to its own law enforcement or judicial authorities, but the Requested State has the discretion to deny such requests entirely or in part. Article 9 provides that no further authentication is necessary for admissibility into evidence in the Requesting State for official records authenticated in accordance with the provisions of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents dated October 5, 1961. Article 10 provides a mechanism for the Requesting State to invite the voluntary appearance and testimony in its territory of a person located in the Requested State. The Central Authority of the Requested State is required to invite the person to appear and promptly to inform the Requesting State of the person's response. Article 11 provides for the voluntary transfer to one State of a person in custody in the other State for purposes of assistance under the Treaty, provided that the person in question and both States agree. The article establishes the express authority and the obligation of the Requesting State to maintain the person transferred in custody unless otherwise authorized by the Requested State. It further obligates the Requesting State to return the person to the Requested State as soon as circumstances permit or as otherwise agreed by both Central Authorities, without the need for extradition proceedings. Article 12 provides that the Central Authority of the Requesting State may, in its discretion, determine that a person appearing in the Requesting State pursuant to Article 10 or 11 shall not be subject to service of process, or be detained or subjected to any restriction of personal liberty. This ``safe conduct'' is limited to acts or convictions that preceded the person's departure from the Requested State. Any safe conduct provided under this article shall cease 15 days after the person's presence is no longer required in the Requesting State or whenever the person voluntarily reenters the Requesting State after leaving it. Article 13 requires the Requested State to use its best efforts to ascertain the location or identity of persons or items specified in a request. Article 14 requires the Requested State to use its best efforts to effect service of any documents relating to or forming part of a request under the Treaty. The article further requires that any request for the service of a document inviting a person to appear in the territory of the Requesting State be transmitted by the Requesting State a reasonable time before the scheduled appearance. The Requested State is required to return proof of service. Article 15 obligates the Requested State to execute requests for search, seizure, and delivery of any item to the Requesting State if the request includes the information justifying such action under the laws of the Requested State. If required by the Central Authority of the Requesting State, the article further provides for the certification (using Form B appended to the Treaty) by every official of the Requested State who has had custody of a seized item of the continuity of custody, its identity, and the integrity of its condition. No further certification is required under the Treaty, and any such certificates shall be admissible in evidence in the Requesting State as proof of the truth of the matters set forth therein. In addition, Article 15 provides that the Central Authority of the Requested State may impose conditions on the transfer of the seized items to protect third-party interests in the property. Article 16 obliges the Requesting State to return to the Requested State as soon as possible any documents, records, or articles of evidence furnished under the Treaty, if the Requested State so requests. Article 17 provides that, if one State becomes aware of proceeds or instrumentalities of offenses that are located in the territory of the other State and may be forfeitable or otherwise subject to seizure under the laws of the other State, it may so inform the other State. Article 17 also obligates the States to assist one another to the extent permitted by their respective laws in proceedings involving the forfeiture of the proceeds and instrumentalities of crime, restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions. The article further permits the States to agree to share forfeited assets, or the proceeds of their sale, to the extent permitted by applicable laws and upon such terms as they deem appropriate. Article 18 states that assistance and procedures provided in the Treaty shall not prevent the granting of assistance under any other international agreement between the two States, or through the provisions of its national laws. The article also states that the Treaty shall not prevent the granting of assistance pursuant to any bilateral arrangement, agreement, or practice which may be applicable. Article 19 provides that the Central Authorities of the Contracting Parties shall consult, at times mutually agreed upon, concerning the most effective means to implement the provisions of the Treaty. Article 20 provides that the Treaty shall be ratified and shall enter into force upon the exchange of instruments of ratification. In addition, Article 20 allows either Contracting Party to terminate the Treaty with six months written notice to the other Party. A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by the United States negotiating delegation, consisting of representatives from the Departments of Justice and State, and will be transmitted separately to the Senate Committee on Foreign Relations. The Department of Justice joins the Department of State in recommending approval of this Treaty by the Senate as soon as possible. Respectfully submitted. Peter Tarnoff.