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[Senate Treaty Document 105-22]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                              SENATE

 1st Session                                                     105-22
_______________________________________________________________________


 
  MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS WITH TRINIDAD AND TOBAGO

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
    GOVERNMENT OF TRINIDAD AND TOBAGO ON MUTUAL LEGAL ASSISTANCE IN 
       CRIMINAL MATTERS, SIGNED AT PORT OF SPAIN ON MARCH 4, 1996





 September 3, 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, September 3, 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 Trinidad and Tobago on Mutual Legal Assistance in 
Criminal Matters, signed at Port of Spain on March 4, 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 activities more effectively. The 
Treaty should be an effective tool to assist in the prosecution 
of a wide variety of crimes, including 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; transferring 
persons in custody for testimony or other purposes; executing 
requests for searches and seizures; assisting in proceedings 
related to restraint, confiscation, forfeiture of assets, 
restitution, and collection of fines; examining objects and 
sites; 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: I have the honor to submit to you the Treaty 
Between the Government of the United States of America and the 
Government of Trinidad and Tobago on Mutual Legal Assistance in 
Criminal Matters (``the Treaty''), signed at Port of Spain on 
March 4, 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 Trinidad and Tobago contains all essential 
provisions sought by the United States. It will enhance our 
ability to investigate and prosecute a variety of offenses, 
including drug trafficking offenses of particular interest to 
the U.S. law enforcement community with respect to Trinidad and 
Tobago. 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; transferring persons in 
custody for testimony or other purposes; executing requests for 
searches and seizures; assisting in proceedings related to 
restraint, confiscation, forfeiture of assets, restitution, and 
collection of fines; examining objects and sites; 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 related to criminal 
matters, which may be civil or administrative in nature.
    Article 1(3) states that assistance shall be provided 
without regard to whether the conduct involved would constitute 
an offense under the laws of the Requested State. The Requested 
State does, however, have discretion to refuse to comply in 
whole or in part with a request concerning conduct for which 
dual criminality is lacking.
    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, and likewise for Trinidad and 
Tobago, the Central Authority is the Attorney General or a 
person designated by the Attorney General. The article provides 
that the Central Authorities shall communicate directly with 
one another for the purposes of the Treaty.
    Article 3 sets forth the 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. 
In addition, a request may be denied if its execution would 
prejudice the security or similar essential interests of the 
Requested State, or if it is not made in conformity with the 
Treaty.
    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 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 them. If the Central 
Authority of the Requested State denies assistance, it is 
required 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 
requests in emergency situations but requires written 
confirmation within ten days thereafter unless the Central 
Authority of the Requested State agrees otherwise.
    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 courts 
of the Requested State shall have authority to issue subpoenas, 
search warrants, 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 
criminal investigation, prosecution, or proceeding in that 
State, 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.
    This article 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 denied, to inform the 
Requesting State's Central Authority of the reasons for the 
denial.
    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 by the Requesting State: fees of expert witnesses, costs 
of translation, interpretation, and transcription, 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 
under this Treaty 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 there is an obligation to do so 
under the Constitution of the Requesting State in a criminal 
prosecution. The Requesting State is obliged to notify the 
Requested State in advance of any such proposed use or 
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 pursuant to this Article.
    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 claim of immunity, 
incapacity, or privilege 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 a mechanism for 
authenticating evidence that is produced pursuant to or that is 
the subject of testimony taken in the Requested State.
    Article 9 requires that the Requested State provide the 
Requesting State with copies of publicly available records in 
the possession of government departments and agencies in the 
Requested State. The Requested State may further provide copies 
of any documents, records or information in the possession of a 
government department or agency, but not publicly available, to 
the same 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 pursuant to this Article where the 
official in charge of maintaining them authenticates the 
records through the use of Form B appended to this Treaty.
    Article 10 provides a mechanism for the Requesting State to 
invite the voluntary appearance in its territory of a person 
located in the Requested State. The Requesting State shall 
indicate the extent to which the expenses will be paid. It also 
states that the Central Authority of the Requesting State has 
discretion to determine that a person appearing in the 
Requesting State pursuant to this Article shall not be subject 
to service of process or be detained or subjected to any 
restriction of personal liberty by reason of any acts or 
convictions that preceded his departure from the Requested 
State. Any safe conduct provided for by this article ceases 
seven days after the Central Authority of the Requesting State 
has notified the Central Authority of the Requested State that 
the person's presence is no longer required, or if the person 
has left the Requesting State and voluntarily returns to it. An 
extension of up to fifteen days may be granted by the 
Requesting State's Central Authority if, in its discretion, 
there is good cause to do so.
    Article 11 provides for 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 any request for assistance 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, every official who has custody 
of a seized item is required to certify, through the use of 
Form C 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. The article 
further provides that the Central Authority of the Requested 
State may impose terms and conditions deemed necessary to 
protect bona fide 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 items any articles of evidence furnished to it 
in the execution of a request as soon as possible.
    Article 16 provides that, if the Central Authority of one 
Contracting Party becomes aware of proceeds or 
instrumentalities of offenses that are located in the other 
Party and may be restrainable, forfeitable or otherwise subject 
to seizure, it may so inform the Central Authority of that 
other Party. If the Party receiving such information has 
jurisdiction in this regard, 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 any action taken.
    Article 16 also obligates the Contracting Parties to assist 
each other to the extent permitted by their respective laws in 
proceedings relating to restraint, forfeiture and confiscation 
of the proceeds and instrumentalities of offenses, restitution 
to victims of crime, and collection of fines imposed as 
sentences in criminal prosecutions. 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 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 to the other Party through the provisions 
of other applicable international agreements or through the 
provisions of its national laws. The Parties may also provide 
assistance pursuant to any bilateral arrangement, agreement, or 
practice which may be applicable.
    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 diplomatic notes notifying one another of the 
completion of their respective requirements for entry into 
force, whereupon the Treaty shall enter into force. Article 19 
further provides that either party may terminate the Treaty by 
written notice of the other party, termination to be effective 
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 
favoring approval of this Treaty by the Senate as soon as 
possible.
    Respectfully submitted.
                                                Madeleine Albright.