MUTUAL LEGAL ASSISTANCE TREATY WITH LUXEMBOURGSenate Consideration of Treaty Document 105-11
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[Senate Treaty Document 105-11] [From the U.S. Government Publishing Office] 105th Congress Treaty Doc. SENATE 1st Session 105-11 _______________________________________________________________________ MUTUAL LEGAL ASSISTANCE TREATY WITH LUXEMBOURG __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON MARCH 13, 1997 July 8, 1997.--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, July 8, 1997. 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 Grand Duchy of Luxembourg on Mutual Legal Assistance in Criminal Matters, signed at Washington on March 13, 1997, and a related exchange of notes. 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 activity more effectively. The Treaty should be an effective tool to assist in the prosecution of a wide variety of modern criminals, including those involved in drug trafficking, terrorism, other violent crime, and money laundering, fiscal fraud, and other ``white-collar'' crime. The Treaty is self-executing. The Treaty provides for a broad range of cooperation in criminal matters. Mutual assistance available under the Treaty includes: taking testimony or statements of persons; providing documents, records, and articles of evidence; transferring persons in custody for testimony or other purposes; locating or identifying persons and items; serving documents; executive requests for searches and seizures; immobilizing assets; assisting in proceedings related to forfeiture and restitution; and 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, June 18, 1997. The President, The White House. The President: I have the honor to submit to you the Treaty between the Government of the United States of America and the Government of the Grand Duchy of Luxembourg on Mutual Legal Assistance in Criminal Matters (``the Treaty''), signed at Luxembourg on March 13, 1997, and a related exchange of notes signed the same date. I recommend that the Treaty and the related exchange of notes 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 a number of other countries. This Treaty contains many provisions similar to those in the other treaties. The Treaty will enhance our ability to investigate and prosecute a variety of offenses, including drug trafficking, terrorism, money laundering, fiscal fraud, and other violent and 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 the taking of testimony or statements of persons; providing documents, records, and articles of evidence; transferring persons in custody for testimony or other purposes; locating or identifying persons and items; serving documents; executing requests for searches and seizures; immobilizing assets; assisting in proceedings related to forfeiture and restitution; 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 forfeiture and restitution proceedings related to criminal matters, which may be civil or administrative in nature. Moreover, under the Treaty, assistance is to be provided without regard to whether the conduct involved would constitute an offense under the laws of the Requested State. However, if execution of the request would require a court order for search and seizure or other coercive measures, the Requested State may refuse such assistance if the facts stated in the request fail to establish a reasonable suspicion that the conduct would constitute an offense for which the maximum penalty under its laws would be deprivation of liberty for a period of at least six months. The Requested State is required to make every effort to approve a request for assistance requiring court orders or other coercive measures. Article 1 specifies, and the exchange of diplomatic notes accompanying the Treaty further clarifies, the scope of coverage regarding tax offenses. The requested State is required to provide assistance for offenses concerning value added taxes, sales taxes, excise taxes, customs duties, and any other taxes that may be agreed to by the Contracting Parties through an exchange of diplomatic notes. For other tax offenses, the Requested State must provide assistance only where the facts in a request establish a reasonable suspicion of ``fiscal fraud'' as that term is defined in the Treaty and interpreted in the exchange of diplomatic notes. As used in this article, the term ``fiscal fraud'' means a criminal offense in which: (1) the tax involved, either as an absolute amount or in relation to an annual amount due, is significant; and (2) the conduct involved constitutes a systematic effort or a pattern of activity designed or tending to conceal pertinent facts from or provide inaccurate facts to the tax authorities. The Requested State may not refuse assistance because its law does not impose the same kind of tax, or does not contain the same kind of tax regulations, as does the law of the Requesting State. Finally, Article 1 makes it clear that the Treaty is intended only for mutual assistance between specified authorities that by law are responsible for investigations, prosecutions, or proceedings related to criminal offenses. It is not intended or designed to provide such assistance to private parties. The Treaty provisions neither create a new right nor affect a pre-existing right on the part of a private party to impede the execution of a request or to suppress or exclude any evidence. Article 2 provides for the designation of Central Authorities to make and receive requests pursuant to the Treaty. For the United States, the Central Authority is the Attorney General or another prosecutor designated by the Attorney General. For Luxembourg, the Central Authority is the Parquet General. The Central Authorities shall communicate directly with one another for purposes of the Treaty. Article 3 sets forth the circumstances under which the Central Authority of the Requested State may deny assistance under the Treaty. A request may be denied if it relates to a military offense that would not be a crime under ordinary criminal law or to an offense for which the maximum penalty in the Requesting State is deprivation of liberty for a period of a year or less. Assistance may be denied if the person whose conduct is the subject of the request has been prosecuted and either convicted and sentenced or acquitted in the Requested State based upon identical conduct. In addition, a request may be denied if its execution would prejudice the sovereignty, security, ordre public, or similar essential interests of the Requested State, or if the request is not made in conformity with Article 4. Finally, a request may be denied if it involves a political offense. This exception does not apply to any offense that the Contracting Parties consider not to be a political offense under any international agreement to which they are parties. 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 these 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 contents 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. The article permits other forms of request in emergency situations, but requires written confirmation within ten days thereafter unless the Central Authority of the Requested State agrees otherwise. Article 5 provides that the Requested State shall promptly execute a request or transmit it to the authority having jurisdiction to do so. The competent authorities of the Requested State shall do everything in their power to execute a request. Requests are to be executed in accordance with the laws of the Requested State except to the extent the Treaty provides otherwise. The courts of the Requested State shall have the authority to issue such orders to execute requests under the Treaty as are authorized under the laws of the Requested State with respect to proceedings in domestic investigations and prosecutions. The preferred method of execution specified in the request shall be followed except insofar as it is prohibited under 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 in the Requested State, jeopardize the security of a person, or impose an extraordinary burden on the State's resources, it may postpone execution or, after consultations with the Requesting State, impose conditions on such execution. Ifthe Requesting State accepts assistance subject to such conditions, it shall comply with them. Article 5 further requires the Requested State, if so requested by the Central Authority of the Requesting State, to use its best efforts to keep confidential a request and its contents, and to inform the Central Authority of the Requesting State if the request cannot be executed without breaching confidentiality. Article 5 specifies that the Central Authority of the Requested State may permit the presence during execution of a request of persons specified in the request. 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 experts, the costs of translation, interpretation and transcription, and allowances and expenses related to travel of persons travelling either in the Requested State for the convenience of the Requesting State or pursuant to Articles 10 and 12. If, during execution of a request, it becomes apparent that complete execution will entail extraordinary expenses, the Central Authorities shall consult to determine the terms and conditions under which execution may continue. 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 any investigation, proceeding or prosecution other than that described in the request without the prior consent of the Central Authority of the Requested State. Information or evidence obtained regarding a tax offense shall also be available for specified uses, including assessment and collection in relation to the taxes underlying that offense. Article 7 specifies that nothing therein shall preclude the use or disclosure in a criminal prosecution of information or evidence to the extent that there is an obligation to do so for the United States under its Constitution or for Luxembourg under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Prior notification to the Requested State is required. Once information or evidence has been made public in the Requesting State in the normal course of the proceeding for which it was provided, it may be used for any purpose other than prosecution of: a military offense that would not be an offense under ordinary criminal law; a political offense; a capital offense; or a tax offense for which assistance is not available pursuant to the Treaty. For such offenses, information or evidence shall not be used without the prior consent of the Central Authority of the Requested State. Article 8 provides that a person in the Requested State whose statement is requested shall be required to appear, testify and produce items to the same extent as in criminal investigations or proceedings in the Requested 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 that when the Requesting State requests that testimony be taken under oath for use in a proceeding, the Requested State shall permit the presence during the execution of the request of persons specified in the request and shall allow such persons to question the person whose testimony is being taken or, if such direct questioning is not permitted, to have questions posed in accordance with applicable procedures in the Requested State. 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 evidence shall be taken and the claim shall be made known to the Central Authority of the Requesting State for resolution by the authorities of that State. Finally, Article 8 provides a mechanism for certifying items, including business records, produced pursuant to this article and provides that documents so certified shall be admissible in evidence in the Requesting State as proof of the truth of the matters set forth therein. Article 9 requires that the Requested State provide the Requesting State with copies of publicly accessible records of any nature and in any form that are inpossession of its judicial authorities or government departments or agencies. The Requested State may further provide copies of records of any nature, and in any form, in the possession of its judicial authorities or government departments or agencies, but that are no publicly accessible, to the same extent and under the same conditions that would apply 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 official records produced and certified pursuant to the article shall be admissible in evidence as proof of the truth of the matters set forth therein. Article 10 provides a mechanism for the Requesting State to invite a person located in the Requested State to appear in the Requesting State to assist in investigations and proceedings in that State. The Requested State is required to invite the person to appear and to inform the Requesting State of the person's response. Article 11 provides that, unless otherwise specified in the request, a person appearing as a witness or expert in the Requesting State pursuant to the Treaty shall not be subject to any civil suit to which the person could not be subjected but for the person's presence in the Requesting State, or be prosecuted, punished or subjected to any restriction of personal liberty by reason of any acts or omissions that preceded the person's departure from the Requested State. Any safe conduct provided under this article shall cease to apply if, after the person appearing has been notified that the person's presence is no longer required, that person, being free to leave, has not left the Requesting State within seven days or, having left, has voluntarily returned. Article 12 provides for the voluntary transfer to one State (and, in some circumstances, to a third State) of a person in custody in the other State for purposes of assistance under the Treaty, provided that the person in question and the Central Authorities of both States agree. The article establishes the express authority and the obligation of the receiving State to maintain the person transferred in custody unless otherwise authorized by the sending State. It further obligates the receiving State to return the person to the Sending State as soon as circumstances permit or as otherwise agreed by both Central Authorities, without the sending State being required to initiate proceedings for the return of the person. The person transferred shall receive credit for service of the sentence imposed in the sending State for time served in the custody of the receiving State. Article 13 requires the Requested State to use its best efforts to ascertain the location or identity of persons or items when such information is sought in a request. Article 14 requires the Requested State to use its best efforts to effect service of any document relating to a request for assistance under the Treaty. Any request for the service of a document inviting a person to appear in the territory of the Requesting State must be transmitted by the Requesting State a reasonable time before the scheduled appearance. The Requested State is required to return proof of service. Article 14 specifies that a person who is not a national or resident of the Requesting State and who does not answer a summons to appear in the Requesting State as a witness or expert pursuant to the treaty shall not by reason thereof be liable to any penalty or be subjected to any coercive measures. Article 15 obligates the Requested State to execute requests for search, seizure, and transfer of any item to the Requesting State if a judicial authority of the Requesting State issues, approves, or otherwise authorizes the request and if the request includes the information justifying such action under the laws of the Requested State. For purposes of this paragraph, a judicial authority shall be, as appropriate, a prosecutor, court, or examining magistrate. The article further provides a mechanism for the certification, upon request, by every official of the Requested State who has had custody of a seized item, of the identity of the item, the continuity of its custody, and the integrity of its condition. This certification is by means of Form B appended to the Treaty, or a document containing the essential information required by the Requesting State. If certified in accordance with this article, no further certification is required 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 seized items to protect third party interests in the property. Article 16 provides that the Central Authority of the Requested State may require that the Central Authority of the Requesting State return as soon as possible any items furnished under the Treaty. Article 17 provides that, upon request and to the extent permitted by its laws, the Requested State may take protective measures, such as temporary immobilization or seizure, to ensure that proceeds, objects and instrumentalities of crime that are located in the Requested State are available for forfeiture or restitution to victims of crime. Article 17 also obligates the Contracting Parties to assist one another to the extent permitted by their respective laws in proceedings relating to forfeiture of the proceeds, objects and instrumentalities of offenses or restitution to victims of crime. The article further permits the Contracting Parties to assist each other to the extent permitted by their respective laws to give effect to either State's final decisions forfeiting proceeds, objects, and instrumentalities of crime or independently to initiate legal action for the forfeiture of such assets. Article 17 provides for disposition of forfeited assets in accordance with the laws of the Party enforcing its decision. Finally, it permits the Parties to share forfeited assets, or the proceeds of their sale, to the extent permitted by the transferring Party's laws and upon such terms as the transferring Party deems appropriate. Article 18 provides that the Central Authorities of the Contracting Parties shall consult, at times mutually agreed upon, to promote the most effective use of the Treaty and to agree on such practical measures as may be necessary to facilitate implementation of the Treaty. Article 19 provides that the Treaty shall be subject to ratification and shall enter into force on the first day of the second month after the exchange of instruments of ratification. In addition, Article 19 allows either Contracting Party to terminate the Treaty upon six months written notice to the other Party. Termination shall take effect six months following the date of notification. 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. Madeleine Albright.