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[Senate Treaty Document 105-41]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                 SENATE

 2d Session                                                      105-41
_______________________________________________________________________


 
 TREATY WITH LITHUANIA 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 LITHUANIA ON MUTUAL LEGAL ASSISTANCE IN 
       CRIMINAL MATTERS, SIGNED AT WASHINGTON ON JANUARY 16, 1998





April 20, 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, April 20, 1998.
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 the Republic of Lithuania on Mutual Legal 
Assistance in Criminal Matters, signed at Washington on January 
16, 1998. 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 the testimony or statements of persons; 
providing documents, records, and articles of evidence; 
locating or identifying persons or items; serving documents; 
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, and collection of fines; and 
rendering 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, March 24, 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 Lithuania on Mutual Legal 
Assistance in Criminal Matters (the ``Treaty''), signed at 
Washington, on January 16, 1998. 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 with Lithuania contains all essential provisions 
sought by the United States and, indeed, resembles closely the 
model U.S. text. 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 Lithuania. The 
Treaty is designed to be self-executing and will not require 
new 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; locating or 
identifying persons or item; serving documents; 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, and collection of fines; and rendering any other 
form of assistance not prohibited by the laws of the Requested 
State. The cope of the Treaty includes not only 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 of 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 such persons in the Department of Justice 
as the Attorney General designates. For Lithuania, the Central 
Authority is the Office of the Prosecutor General and the 
Ministry of Justice. The Central Authority for the Requesting 
State is required to use its best efforts to ensure that a 
request is not made where, in its view, the offense on which 
the request is based does not have serious consequences, or the 
extent of the assistance to be requested is unreasonable in 
view of the sentence expected upon conviction.
    The article also provides that the Central Authorities may 
communicate directly with one another for purposes of the 
Treaty.
    Article 3(1) 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 related to a military 
offense that would be an offense under ordinary criminal law. 
In addition, a request may be denied if its execution would 
prejudice the sovereignty, security or similar essential 
interests of the Requested State, or if it is not made in 
substantial compliance with the requirements set forth in 
Article 4. Further grounds for denial are that the request 
relates to a political offense (a term expected to be defined 
on the basis of the term's usage in extradition treaties).
    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 Requested State accepts assistance subject to these 
conditions, it is requested 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 or 
translated into 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, search warrants, or 
other orders necessary to execute the request. The Central 
Authority of the Requested State must represent or make 
arrangements for representation of the Requesting States in the 
execution of a request for assistance.
    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 contradicts or 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.
    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 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 by the Requesting State: fees of experts, costs of 
interpretation, translation and transcription, and the 
allowances and expenses related to travel of persons either in 
theRequested States for the convenience of the Requesting State 
or 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 any investigation, prosecution, or proceeding 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, and the 
Requesting State accepts the information subject to such 
conditions, the Requesting State must use its best efforts to 
comply with the conditions. 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 use or 
disclosure. Once information is made public in the Requesting 
State in accordance with either of these provisions, no further 
limitations on use apply.
    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, including documents, records, and other 
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 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 through 
the use of Forms A and B appended to the Treaty 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 executive,legislative or judicial authority 
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 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 Requested State. Article 10(2) provides that the 
Requesting State shall indicate the extent to which the 
expenses will be paid. Article 10(3) provides 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 the person's 
departure from the Requested State. Under Article 10(4), any 
safe conduct provided for by this article ceases seven days 
after the Central Authority of the Requesting State has 
notified the person appearing that their presence is no longer 
required, and the person being free to leave has not left, or 
having left, has voluntarily returned.
    Article 11 provides for temporary transfer of a person in 
custody in the Requested State to the Requesting State or a 
third State for purposes of assistance under the Treaty (for 
example, a witness incarcerated in the Requested State may be 
transferred to the Requesting State or to a third 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 agreed by 
both Central Authorities. 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 person 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 transfer 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 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 documents, records or other articles of 
evidence obtained in the execution of a request under the 
Treaty 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 
seizure under the laws of that Party, it may so inform the 
Central Authority of that other Party. If the Party receiving 
such information has jurisdiction, it maypresent 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 the 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 all or part of such 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.
    Article 17 states that assistance and procedures provided 
in the Treaty shall not prevent either Contracting Party from 
granting assistance to the other Contracting 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 Treaty shall be subject to 
ratification and the instruments shall be exchanged at Vilnius, 
whereupon the Treaty shall enter into force. Article 19 further 
provides that either party may terminate the Treaty by written 
notice to the other party, termination to take effect six 
months after 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.
                                                     Strobe Talbot.