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[Senate Treaty Document 105-12]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.

                                SENATE
 1st Session                                                     105-12
_______________________________________________________________________


 
               MUTUAL LEGAL ASSISTANCE TREATY WITH POLAND

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE 
  REPUBLIC OF POLAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, 
                 SIGNED AT WASHINGTON ON JULY 10, 1996





 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 United States of America and the Republic of Poland on 
Mutual Legal Assistance in Criminal Matters, signed at 
Washington on July 10, 1996. 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 being negotiated by the United States 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 crimes, including ``white-collar'' crime and 
drug trafficking offenses. 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 of 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 proceedings related to immobilization and 
forfeiture of assets, restitution to the victims of crime, and 
collection of fines; and 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 United States of America and the Republic of Poland 
on Mutual Legal Assistance in Criminal Matters (``the 
Treaty''), signed at Washington on July 10, 1996. 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 a number of other countries.
    The Treaty with Poland contains all essential provisions 
sought by the United States and, indeed, follows closely the 
form and content of mutual legal assistance treaties recently 
concluded by the United States. It will enhance our ability to 
investigate and prosecute a variety of offenses, including 
white collar crime and drug trafficking offenses of particular 
interest to the U.S. law enforcement community with respect to 
Poland. The Treaty is designed to be self-executing and will 
not require implementing legislation.
    Article 1 sets forth a non-exclusive 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 proceedings related to 
immobilization and forfeiture of assets, restitution to the 
victims of crime and collection of fines; and rendering 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 directly related to 
criminal matters, which may be civil or administrative in 
nature.
    Article 1 states that assistance shall be provided without 
regard to whether the conduct involved would constitute an 
offense under the laws of the Requested State.
    Article 1(4) states explicitly that the Treaty is not 
intended to create rights in private parties to obtain, 
suppress, or exclude any evidence, or to impede the execution 
of a request.
    Article 2 provides for the establishment of Central 
Authorities and defines 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 Poland, the Central Authority is the Minister of 
Justice--Attorney General or a person designated by the 
Minister of Justice--Attorney General. The article provides 
that the Central Authorities shall communicate directly with 
one another for the purposes of the Treaty.
    Article 3(1) sets forth the limited circumstances under 
which a Requested State's Central Authority 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 if the request relates to a political offense. 
In addition, a request may be denied if its execution would 
prejudice the security or similar essential interests of 
theRequested State, or if it is not made in conformity with the Treaty.
    Before denying assistance, the Central Authority of the 
Requested State is required under Article 3(2) to consult with 
its counterpart in the Requesting State to consider whether 
assistance can be given subject to such conditions as the 
Central Authority of the Requested State deems necessary. If 
the Requesting State accepts assistance subject to these 
conditions, it is required to comply with the conditions. If 
the Central Authority of the Requested State denies assistance, 
it is required under Article 3(3) to 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 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. Unless 
otherwise agreed, the request shall be in the language of the 
Requested State.
    Article 5 requires the Central Authority of the Requested 
State to execute the request promptly or to transmit it to the 
authority having jurisdiction to do so. It provides that the 
competent authorities of the Requested State shall do 
everything in their power to execute a request, and that the 
judicial or other competent authorities of the Requested State 
shall have authority to issue subpoenas or other orders 
necessary to execute the request. The Central Authority of the 
Requested State must make all arrangements for and meet the 
costs of representation of the Requesting State in any 
proceedings arising out of an assistance request.
    Under Article 5(3), requests are to be executed in 
accordance with the laws of the Requested State except to the 
extent that the Treaty provides otherwise. However, the method 
of execution specified in the request is to 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 
investigation, prosecution, or proceeding, it may postpone 
execution or, after consulting with the Central Authority of 
the Requesting State, impose conditions on execution. If the 
Requesting State accepts assistance subject to conditions, it 
shall comply with them.
    Article 5(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's 
Central Authority if the request cannot be executed without 
breaching confidentiality. This provides the Requesting State 
an opportunity to decide whether to pursue the request or to 
withdraw it in order to maintain confidentiality.
    Article 5 additionally requires the Requested State's 
Central Authority to respond to reasonable inquiries by the 
Requesting State's Central Authority regarding the status of 
the execution of a particular request; to report promptly to 
the Requesting State's Central Authority the outcome of its 
execution; and, if the request is delayed or postponed, to 
inform the Requesting State's Central Authority of the reasons 
for the delay or postponement.
    Article 6 apportions between the two States the costs 
incurred in executing a request. It provides that the Requested 
State shall pay all costs, except for the following items to be 
paid bythe Requesting State: fees of expert witnesses, costs of 
translation and interpretation, the costs of recording by private 
parties of testimony or statements (or the costs of preparation by 
private parties of written records or videotapes of testimony or 
statements), and allowances and expenses related to travel of persons 
pursuant to Articles 10 and 11.
    Article 7 requires the Requesting State to comply with any 
request by the Central Authority of the Requested State that 
information or evidence obtained under the Treaty not be used 
for proceedings other than those described in the request 
without its prior consent. Further, if the Requested State's 
Central Authority asks that information or evidence furnished 
be kept confidential or be used in accordance with specified 
conditions, the Requesting State must use its best efforts to 
comply with the conditions. Once information is made public in 
the Requesting State in accordance with either of these 
provisions, no further limitations on use apply. Nothing in the 
article prevents the use or disclosure of information to the 
extent that such information is exculpatory to a defendant in a 
criminal prosecution. The Requesting State is obliged to notify 
the Requested State in advance of any such proposed disclosure.
    Article 8 provides that a person in the Requested State 
from whom testimony or evidence is requested pursuant to the 
Treaty shall be compelled, if necessary, to appear and testify 
or produce items and articles of evidence. The article requires 
the Central Authority of the Requested State, upon request, to 
furnish information in advance about the date and place of the 
taking of testimony or evidence.
    Article 8(3) further requires the Requested State to permit 
the presence of persons specified in the request (such as the 
accused, counsel for the accused, or other interested persons) 
and to permit them to question the person giving the testimony 
or evidence. In the event that a person whose testimony or 
evidence is being taken asserts a right to decline to provide 
testimony or evidence under the laws of the Requesting State, 
Article 8(4) provides that the testimony or evidence shall be 
taken and the claim made known to the Central Authority of the 
Requesting State for resolution by its authorities.
    Finally, in order to ensure admissibility in evidence in 
the Requesting State, Article 8(5) provides, through the use of 
Forms A and B appended to the Treaty, a mechanism for 
authenticating evidence that is produced pursuant to or that is 
the subject of testimony taken in the Requested State (or 
certifying its absence or nonexistence).
    Article 9 requires that the Requested State provide the 
Requesting State with copies of publicly available records in 
the possession of an executive, legislative or judicial 
authority in the Requested State. The Requested State may 
further provide copies of records or information that are in 
the possession of an executive, legislative or judicial 
authority in that State, but not publicly available, to the 
extent and under the same conditions as it would provide them 
to its own law enforcement or judicial authorities. The 
Requested State has the discretion to deny such requests 
pursuant to this paragraph entirely or in part. Article 9 also 
provides that no further authentication shall be necessary for 
admissibility into evidence in the Requesting State of official 
records where the official in charge of maintaining them 
authenticates the records through the use of Form C appended to 
the Treaty. In like manner, the absence or nonexistence of such 
records is, upon request, to be certified by the use of Form 
D,which shall be admissible in evidence in the Requesting State.
    Article 10(1) provides a mechanism for the Requesting State 
to invite the voluntary appearance in its territory of a person 
located in the Requesting State. The Requested State shall 
indicate the extent to which the expenses will be paid. Article 
10(2) states that a person appearing in the Requesting State 
shall not be prosecuted, detained or subjected to any 
restriction of personal liberty by reason of any acts or 
convictions that preceded that person's departure from the 
Requested State. Under Article 10(3), any safe conduct provided 
for by this article ceases fifteen days from the date when the 
person's presence is no longer required, and that person, 
having had an opportunity to leave, has remained in the 
Requesting State or, if the person has left the Requesting 
State and voluntarily returns to it.
    Article 11 provides for temporary transfer of a person in 
custody in the Requested State to the Requesting State for 
purposes of assistance under the Treaty (for example, a witness 
incarcerated in the Requested State may be transferred to the 
Requesting State to have his deposition taken in the presence 
of the defendant), provided that the person in question and the 
Central Authorities of both States agree. The article also 
provides for voluntary transfer of a person in the custody of 
the Requesting State to the Requested State for purposes of 
assistance under the Treaty (for example, a defendant in the 
Requesting State may be transferred for purposes of attending a 
witness deposition in the Requested State), if the person 
consents and if the Central Authorities of both States agree.
    Article 11(3) further establishes both the express 
authority and the obligation of the receiving State to maintain 
the person transferred in custody unless otherwise authorized 
by the sending State. The return of the person transferred is 
subject to terms and conditions agreed to by the Central 
Authorities, and the sending State is not required to initiate 
extradition proceedings for return of the person transferred. 
The person transferred receives credit for time served in the 
custody of the receiving State.
    Article 12 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items specified in a request.
    Article 13 obligates the Requested State to use its best 
efforts to effect service of any document relating, in whole or 
in part, to a request under the Treaty. A request for the 
service of a document requiring a person to appear in the 
Requesting State must be transmitted a reasonable time before 
the scheduled appearance. Proof of service is to be provided in 
the manner specified in the request.
    Article 14 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. 
It provides that, upon request by the Central Authority of the 
Requesting State, every official who has custody of a seized 
item is required to certify, through the use of Form E appended 
to the Treaty, the continuity of custody, the identity of the 
item and the integrity of its condition. No further 
certification is required. The certificate is admissible in 
evidence in the Requesting State. Article 14(3) further 
provides that the Central Authority of the Requested State may 
impose terms and conditions deemed necessary to protect third 
party interests in items to be transferred.
    Article 15 requires the Requesting State's Central 
Authority, upon request of its counterpart in the Requested 
State, to return documents, records or articles of evidence 
obtained in the execution of a request as soon as possible.
    Article 16(1) provides that, if the Central Authority of 
one Contracting Party becomes aware of proceeds or 
instrumentalities of offenses that are located in the other 
Contracting Party and may be forfeitable or at least subject to 
immobilization under the laws of the other Party, it may so 
inform the Central Authority of that other Party. If the Party 
receiving such information has jurisdiction, it may present 
this information to its authorities for a determination whether 
any action is appropriate. The Central Authority of the Party 
receiving such information is required to inform the Central 
Authority that provided the information of the action taken.
    Article 16(2) also obligates the Contracting Parties to 
assist each other to the extent permitted by their respective 
laws in proceedings relating to forfeiture of proceeds and 
instrumentalities of offenses, restitution to victims of crime 
and collection of fines imposed as sentences in criminal 
prosecutions. Under Article 16(3), the Party having custody 
over proceeds or instrumentalities of offenses is required to 
dispose of them in accordance with its laws. Either party may 
share with the other party forfeited assets, or the proceeds of 
their sale, to the extent not prohibited by the transferring 
party's laws and upon such terms as it deems appropriate.
    Article 17 states that assistance and procedures provided 
in the Treaty shall not prevent either Contracting Party from 
granting assistance through the provisions of other applicable 
international agreements or pursuant to established practices 
consistent with their laws.
    Article 18 provides that the Central Authorities shall 
consult, at times mutually agreed to promote the most effective 
use of the Treaty, and may agree upon such practical measures 
as may be necessary to facilitate the Treaty's implementation.
    Article 19 provides that the Contracting Parties shall 
exchange instruments of ratification at Warsaw, and the Treaty 
shall enter into force 30 days after the exchange of 
instruments of ratification. Article 19 further provides that 
either party may terminate the Treaty by written notice of the 
other party, with termination to become effective six months 
after the date of receipt of such notice.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegations consisting of representatives from the Department 
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 
favoring approval of this Treaty by the Senate as soon as 
possible.
    Respectfully submitted,
                                                Madeleine Albright.