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[Senate Treaty Document 105-24]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 1st Session                                                     105-24
_______________________________________________________________________


 
  MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS WITH ANTIGUA AND BARBUDA, 
                    DOMINICA, GRENADA AND ST. LUCIA

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

TREATIES BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
 GOVERNMENTS OF FOUR COUNTRIES COMPRISING THE ORGANIZATION OF EASTERN 
CARIBBEAN STATES: ANTIGUA AND BARBUDA, SIGNED AT ST. JOHN'S ON OCTOBER 
  31, 1996; DOMINICA, SIGNED AT ROSEAU ON OCTOBER 10, 1996; GRENADA, 
 SIGNED AT ST. GEORGE'S ON MAY 30, 1996; ST. LUCIA, SIGNED AT CASTRIES 
                           ON APRIL 18, 1996





  September 3, 1997.--Treaties were 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 Treaties 
Between the Government of the United States of America and the 
governments of four countries comprising the Organization of 
Eastern Caribbean States. The Treaties are with: Antigua and 
Barbuda, signed at St. John's on October 31, 1996; Dominica, 
signed at Roseau on October 10, 1996; Grenada, signed at St. 
George's on May 30, 1996; St. Lucia, signed at Castries on 
April 18, 1996. I transmit also, for the information of the 
Senate, the report of the Department of State with respect to 
the Treaties.
    The Treaties are part of a series of modern mutual legal 
assistance treaties being negotiated by the United States in 
order to counter criminal activity more effectively. They 
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 Treaties are self-executing.
    The Treaties provide for a broad range of cooperation in 
criminal matters. Mutual assistance available under the 
Treaties 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 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 these Treaties 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 treaties 
on mutual legal assistance (MLATs) between the Government of 
the United States of America and the Governments of four 
countries comprising the Organization of Eastern Caribbean 
States (OECS). The treaties are with: Antigua and Barbuda, 
signed at St. John's on October 31, 1996; Dominica, signed at 
Roseau on October 10, 1996; Grenada, signed at St. George's on 
May 30, 1996; and St. Lucia, signed at Castries on April 18, 
1996. I recommend that these treaties be transmitted to the 
Senate for its advice and consent to ratification.
    The OECS MLATs, the texts of which are identical, contain 
all essential provisions sought by the United States. The 
treaty with Antigua and Barbuda is accompanied by an exchange 
of diplomatic notes (described below), which relates to Article 
1 of the Treaty and which forms an integral part of the treaty. 
They represent part of a concerted effort by the Department of 
State and the Department of Justice to develop modern legal 
assistance relationships in order to enhance the United States' 
ability to prosecute serious offenders including, especially, 
narcotics traffickers. The Treaties are designed to be self-
executing and will not require implementing legislation. In 
recent years, similar bilateral treaties have entered into 
force with a number of other countries.
    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 
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(3) states that, except as otherwise provided in the 
Treaty, assistance shall be provided without regard to whether 
the conduct involved would constitute an offense under the laws 
of the Requested State.
    The Treaty with Antigua and Barbuda includes an exchange of 
diplomatic notes which confirms that assistance under the 
Treaty includes criminal tax matters, notwithstanding that 
Antigua and Barbuda has no income tax legislation at this time. 
The United States stated in its note that it does not intend to 
seek assistance under the Treaty for civil and administrative 
income tax matters that are unrelated to any criminal matter. 
The exchange of notes constitutes an integral part of this 
treaty.
    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 each of the other respective States, the Central 
Authority is the Attorney General or a person designated by the 
Attorney General. The article provides that the 
CentralAuthorities 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 an offense under ordinary criminal 
law. In addition, a request may be denied if its execution 
would prejudice the security or similar essential public 
interests of the Requested State, or if it is not made in 
conformity with the Treaty. Further grounds for denial are that 
the request relates to a political offense (a term expected to 
be defined on the basis of that term's usage in extradition 
treaties) or that execution of the request would be contrary to 
the Constitution of the Requested State. This latter provision 
is similar to clauses in other United States mutual legal 
assistance treaties. e.g., Jamaica.
    A final ground for denial of assistance is that the request 
is made pursuant to provisions of the treaty governing search 
and seizure (Article 14) or asset forfeiture (Article 16) and 
relates to conduct which would not be an offense if it has 
occurred in the Requested State. Thus, while ``dual 
criminality'' in general is not a prerequisite for assistance 
under this treaty, the Requested State does retain discretion 
to deny a request under Articles 14 and 16.
    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 the conditions. 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 
request 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 the 
judicial or other competent authorities 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 
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 requestcannot 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 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 
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.
    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, through the use of 
forms 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.
    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 records or information 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 B appended to this Treaty.
    Article 10(1) 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. Article 
10(2) states that the Central Authority of the Requesting State 
has discretion to determine that a person appearing in the 
Requesting State 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. Under Article 10(3), 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 for good cause may be granted 
by the Requesting State's Central Authority in its discretion.
    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 service of the 
sentence imposed in the sending State 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 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 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 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. Article 14(3) further 
provides that the CentralAuthority of the Requested State may 
impose upon the Requesting State 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 items, including 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 territory 
of the other Party and may be 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, 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 of that 
Party 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 forfeited assets or the proceeds of their sale with the 
other Party, to the extent not prohibited by the transferring 
party's laws and upon such terms as it deems appropriate. To 
the extent permitted by law, a conviction in the Requesting 
State may serve as a basis for forfeiture in the Requested 
State.
    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 of 
practice which may be applicable.
    Article 18 provides that the Central Authorities of the 
Contracting Parties 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 Treaty shall be subject to 
ratification and the instruments shall be exchanged at 
Washington whereupon the Treaty shall enter into force. Article 
19(4) further provides that either party may terminate the 
Treaty by written notice to the other party, with termination 
to become effective six months after the date of receipt of 
such notice.
    Technical Analyses explaining in detail the provisions of 
these Treaties are 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 these Treaties by the Senate as soon as 
possible.
    Respectfully submitted,
                                                Madeleine Albright.