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[Senate Treaty Document 105-38]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 2d Session                                                      105-38
_______________________________________________________________________


 
 TREATY WITH VENEZUELA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
 GOVERNMENT OF THE REPUBLIC OF VENEZUELA ON MUTUAL LEGAL ASSISTANCE IN 
        CRIMINAL MATTERS, SIGNED AT CARACAS ON OCTOBER 12, 1997





March 27, 1998.--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, March 27, 1998.
To the Senate of the United States:
    With a view of 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 Republic of Venezuela on Mutual Legal 
Assistance in Criminal Matters, signed at Caracas on October 
12, 1997. 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 for 
the purpose of countering criminal activities 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 terrorism, other violent crimes, drug 
trafficking, and money laundering and other white collar crime. 
The Treaty is self-executing, and will not require new 
legislation.
    The Treaty provides for a broad range of cooperation in 
criminal matters. Mutual assistance available under the Treaty 
includes: (1) locating or identifying persons or items; (2) 
serving documents; (3) taking testimony or statements of 
persons; (4) transferring persons in custody, or persons 
subject to criminal proceedings, for testimony or other 
purposes; (5) providing documents, records, files, and articles 
of evidence; (6) executing requests for searches and seizures; 
(7) assisting in proceedings related to immobilization and 
forfeiture of assets, restitution, and collection of fines; (8) 
executing procedures involving experts; and (9) any other form 
of assistance appropriate under 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, March 12, 1998.
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 Republic of Venezuela on Mutual Legal 
Assistance in Criminal Matters (``the Treaty''), signed at 
Caracas on October 12, 1997. 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 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, other violent crimes, and money laundering and other 
white-collar crime. The Treaty is designed to be self-executing 
and will not require new legislation.
    Article I contains a non-exhaustive list of the major types 
of assistance to be provided under the Treaty, including taking 
the testimony or statements of persons; providing documents, 
records, files, and articles of evidence; locating or 
identifying persons or items; serving documents; transferring 
persons in custody, or persons subject to criminal proceedings, 
for testimony or other purposes; executing requests for 
searches and seizures; assisting in proceedings related to 
immobilization and forfeiture of assets, restitution, and 
collection of fines; executing procedures involving experts; 
and any other form of assistance appropriate under the laws of 
the Requested State. The scope of the Treaty includes not only 
the investigation, prosecution, and prevention of criminal 
offenses, but also proceedings related to criminal matters, 
which may be civil or administrative in nature, including 
proceedings relating to the immobilization and forfeiture of 
assets, restitution, and collection of fines.
    Assistance under the Treaty is to be provided without 
regard to dual criminality (i.e., whether the conduct involved 
would constitute an offense under the laws of both States). 
However, assistance or cooperation relating to searches, 
seizures, and forfeitures will only be provided if the Central 
Authority of the Requested State determines that the act to 
which the request relates in the Requesting State is also 
punishable as an offense under the laws of the Requested State.
    Article I(4) states explicitly that the Treaty is intended 
solely for mutual legal assistance between the Parties of the 
purpose ofinvestigations or prosecutions of acts punishable in 
the Requesting State, the prevention of such acts, or proceedings 
related to criminal matters ancillary to such acts. The Treaty 
provisions shall not give rise to a right on the part of any private 
person to obtain, suppress, or exclude any evidence, or to impede the 
execution of a request for assistance.
    Article II provides for the establishment of Central 
Authorities and defines the Central Authorities for purposes of 
the Treaty. For the United States, the Central Authority shall 
be the Attorney General or a person designated by the Attorney 
General. For Venezuela, the Central Authority shall be the 
Attorney General of the Republic. This Article specifies that 
the Central Authorities will make and receive requests pursuant 
to the Treaty, and that the Central Authorities will 
communicate directly with one another for purposes of the 
Treaty. The Article also provides that, if appropriate, the 
Central Authority of the Requested State may transmit the 
request to other competent authorities for the purpose of its 
execution. The Article requires that requests be promptly 
executed by the authorities of the Requested State.
    Article III sets forth the circumstances under which the 
Requested State's Central Authority may deny assistance under 
the Treaty. A request may be denied if it relates to a 
political offense, or to a military offense that would be a 
crime under ordinary criminal law. A request may also be denied 
if its execution would prejudice the public order, security or 
similar essential interests of the Requested State, or if the 
request is not made in conformity with the provisions of the 
Treaty.
    Before denying assistance under Article III, the Central 
Authority of the Requested State is required to consult with 
its counterpart in the Requested State to consider whether 
assistance can be given subject to such conditions as the 
Central Authority of the Requested State deems necessary. If 
the Requested State accepts assistance subject to conditions, 
it is required to comply with them. If the Central Authority of 
the Requested State denies assistance, it must inform the 
Central Authority of the Requesting State of the reasons for 
the denial.
    Article IV prescribes the form and contents of requests 
under the Treaty, specifying the detail the information 
required in each request. The Article provides that requests 
for assistance must be in writing, except that the Central 
Authority of the Requested State may accept a request in 
another form in urgent situations, subject to written 
confirmation within ten days thereafter. All requests must be 
accompanied by a translation in the language of the Requested 
State.
    Article V requires the competent authorities of the 
Requested State to do everything in their power to execute 
requests. The Article provides that the Courts of the Requested 
State shall have the authority to issue subpoenas, search 
warrants, or other orders necessary to execute the request.
    The Central Authority of the Requested State is required to 
make all necessary arrangements for,and meet the costs of, the 
representation in the Requested State of the Requesting State in any 
proceedings arising out of a request for assistance pursuant to the 
Treaty. Under Article V(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 a request would interfere with an ongoing 
criminal investigation, prosecution, or proceeding in that 
State, it may postpone execution or, after consultations with 
the Central Authority of the Requesting State, make execution 
subject to conditions. If the Requesting State accepts 
assistance subject to such conditions, it is required to comply 
with them.
    Article V(5) further requires the Requested State to use 
its best efforts to keep confidential a request and its 
contents if confidentiality is requested by the Central 
Authority of the Requesting State. If the request cannot be 
executed without breaching such confidentiality, the Central 
Authority of the Requested State must so inform the Central 
Authority of the Requesting State, which will then determine 
whether the request should nevertheless be executed.
    Finally, Article V(6) requires the Central Authority of the 
Requested State to promptly inform its counterpart from the 
Requesting State of the outcome of the execution of the 
request, and, if the execution of the request is denied, 
delayed, or postponed, of the reasons therefor.
    Article VI apportions between the States the costs 
associated with the execution of requests. The Article provides 
that the Requested State is responsible for paying all costs 
relating to the execution of a request, except that the 
Requesting State must pay for the fees of expert witnesses, the 
costs of translation, interpretation, and transcription, and 
the allowances and expenses related to the travel of persons 
pursuant to Articles X and XI. The Article also provides that, 
in cases in which extraordinary expenses arise, the Central 
Authorities are to consult with one another to establish the 
terms and conditions under which the assistance may be 
provided.
    Article VII provides that the Central Authority of the 
Requested State may request that the Requesting State not use 
any information or evidence obtained under the Treaty in any 
investigation, prosecution, or proceeding other than that 
described in the request without the prior consent of the 
Central Authority of the Requested State. The Requesting State 
is required to take all possible legal measures to comply with 
such limitation.
    Article VII(2) provides that the Central Authority of the 
Requested State may request that information or evidence 
furnished under the Treaty be kept confidential or be used only 
subject to terms and conditions it may specify. If the 
Requesting State accepts the information or evidence subject to 
such conditions, it is requiredto take all possible legal 
measures to comply with the conditions. The reference to ``all possible 
legal measures'' was not intended by the negotiating delegations to 
preclude a constitutionally required disclosure or use of information 
in a criminal prosecution, and it was the understanding of the 
negotiators that in such cases the obligation of confidentiality would 
not apply. This point was discussed at length between the negotiating 
delegations, and expressly agreed upon.
    Article VII(3) states that once information or evidence has 
been made public in the Requesting State in a manner consistent 
with the other provisions of the Article, it may thereafter be 
used for any purpose.
    Article VIII provides that a person in the Requested State 
from whom testimony or evidence is requested pursuant to the 
Treaty shall be summoned and, if necessary, compelled to appear 
and testify or produce items, including documents, records, and 
articles of evidence. The Article requires the Central 
Authority of the Requested State, upon request, to inform the 
Requesting State in advance about the date and place of the 
taking of the testimony or production of the evidence pursuant 
to this Article.
    Article VIII(3) also requires the Requested State, unless 
it is prohibited from doing so by its domestic law, to permit 
the presence of persons designated in the request, and to allow 
such persons 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, the testimony or evidence shall nonetheless be taken and 
the claim made known to the Central Authority of the Requesting 
State for resolution by authorities of that State.
    Article IX 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 also provide copies of 
any records that are in the possession of authorities in that 
State but that are not publicly available, to the same extent 
and under the same conditions as such copies would be available 
to its own law enforcement, administrative, or judicial 
authorities. However, the Requested State has the discretion to 
deny such requests entirely or in part.
    Article X 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 is 
required to indicate the extent to which the expenses of the 
person will be paid. The Central Authority of the Requested 
State is required to invite the person to appear and promptly 
to inform the Requesting State of the person's response.
    Article X further provides that, upon request by the person 
invited to appear, the Requesting State may consider providing 
security guarantees for that person during the period that his 
or her presence is required in that State. The CentralAuthority 
of the Requesting State may, in its discretion, determine that such 
person shall not be subject to service of process, detained, or 
subjected to any restriction of personal liberty by reason of acts or 
convictions that preceded the person's departure from the Requested 
State. In addition, such person may not be required by the Requesting 
State to give statements or testify in proceedings other than those 
specified in the request, unless the person consents in writing and the 
Central Authorities of both Parties agree. The safe conduct ceases ten 
days after notification by the Central Authority of the Requesting 
State to its counterpart in the Requested State that the person's 
presence is no longer required, or when the person, having left the 
Requesting State, voluntarily returns.
    Article XI provides for the temporary transfer to one State 
Party, for purposes of assistance under the Treaty, of a person 
in custody in the other State Party, provided that the person 
in question consents in writing and the Central Authorities of 
both States agree. Article XI(3) 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 custody of the sending State as 
soon as circumstances permit or as otherwise agreed by the 
Central Authorities of both States, without the need for 
extradition proceedings. The person transferred is to receive 
credit toward service of the sentence imposed in the sending 
State for time served in the custody of the receiving State.
    Article XII requires the Requesting State to take all 
necessary measures to ascertain the location or identity of 
persons or items specified in a request.
    Article XIII requires the Requesting State to take all 
necessary measures to effect service of any documents relating, 
in whole or in part, to a request under the Treaty. The Article 
further requires that any request for the service of a document 
requiring the appearance of a person before an authority in the 
Requesting State must be transmitted within a reasonable time 
prior to the scheduled appearance. The Requested State is 
required to return proof of service in the manner specified in 
the request.
    Article XIV 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. 
In addition, this Article provides that the Central Authority 
of the Requested State may impose terms and conditions on the 
transfer of the seized items to protect third party interests 
in the property.
    Article XV requires the Requesting State's Central 
Authority, upon request of its counterpart in the Requested 
State, to return as soon as possible any items (including 
documents, records, or articles of evidence) furnished to it in 
execution of a request under the Treaty.
    Article XVI provides that the Central Authority of either 
Party may contact that of the other Party when it has reason to 
believe that proceeds, fruits, or instrumentalities of offenses 
are located in the territory of the other Party. The Article 
obligates the Parties to assist each other, to the extent 
permitted by their respective laws, in procedures relating to 
the immobilization, securing, and forefeiture of the proceeds, 
fruits, and instrumentalities of offenses, restitution to 
victims of crime, and the collection of fines imposed as 
sentences in criminal proceedings. The Party with custody over 
proceeds, fruits, or instrumentalities of offenses is required 
to dispose of them in accordance with its laws. Either Party 
may transfer all or part of such assets, or the proceeds of 
their sale, to the other Party, to the extent permitted by the 
transferring Party's laws and upon such terms as it deems 
appropriate.
    Article XVII contains provisions regarding authentication 
and certification. Notwithstanding any authentication or 
certification necessary under its law, the Requested State 
shall authenticate any document, record, or copy thereof, or 
provide a certification regarding any article, in the matter 
requested by the Requesting State, if such is not incompatible 
with the laws of the Requested State. For the purpose of 
facilitating the use of such authentications or certifications, 
the Requesting State is required to enclose in the request the 
appropriate forms or describe the particular procedure to be 
followed.
    Article XVIII states that the assistance and procedures set 
forth in the Treaty shall not prevent either Party from 
granting assistance to the other Party through the provisions 
of other applicable international agreements to which they are 
parties, or pursuant to any bilateral arrangement, agreement, 
or practice that may be applicable, consistent with their 
respective domestic laws.
    Article XIX provides that the Central Authorities of the 
Parties shall consult, at times mutually agreed, to promote the 
most effective use of the Treaty, and may agree on such 
practical measures as may be necessary to facilitate 
implementation of the Treaty.
    Article XX provides that the Treaty shall enter into force 
upon written notification between the Parties, through 
diplomatic channels, of compliance with their respective legal 
requirements necessary for its approval. The Treaty shall apply 
to any request presented after the date of its entry into 
force, even if the relevant acts or omissions occurred before 
that date.
    Article XX also provides that the Treaty shall have 
indefinite duration, but it allows either Party to terminate 
the Treaty by written notice to the other Party, through the 
diplomatic channel. Such termination would take effect six 
months following the date of notification, and requests for 
assistance that may be pending at the time of termination of 
the Treaty may be executed if agreed by both Parties.
    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,
                                                     Strobe Talbot.