MUTUAL LEGAL ASSISTANCE TREATY WITH POLANDSenate Consideration of Treaty Document 105-12
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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.