TREATY WITH VENEZUELA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERSSenate Consideration of Treaty Document 105-38
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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.