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[Senate Treaty Document 105-44]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 2d Session                                                      105-44
_______________________________________________________________________


 
 TREATY WITH ST. VINCENT AND THE GRENADINES 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 SAINT VINCENT AND THE GRENADINES ON MUTUAL LEGAL 
   ASSISTANCE IN CRIMINAL MATTERS, AND A RELATED PROTOCOL, SIGNED AT 
                      KINGSTOWN ON JANUARY 8, 1998





 May 13, 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, May 13, 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 Saint Vincent and the Grenadines on Mutual Legal 
Assistance in Criminal Matters, and a related Protocol, signed 
at Kingstown on January 8, 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 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 immobilization and forfeiture of assets; 
restitution; 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 the Treaty and related Protocol, and give its 
advice and consent to ratification.

                                                William J. Clinton.


                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                        Washington, April 29, 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 Saint Vincent and the Grenadines on Mutual Legal 
Assistance in Criminal Matters (``the Treaty'') and a related 
Protocol, signed at Kingstown on January 8, 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 other countries.
    The Treaty with the Government of Saint Vincent and the 
Grenadines contains all essential provisions sought by the 
United States. It will enhance our ability to investigate and 
prosecute a variety of offsenses, including drug-trafficking 
offenses of particular interest to the United States law 
enforcement community. 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; 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; 
collection of fines; and any other form of assistance not 
prohibited by the laws of the Requested State.
    The scope of the Treaty includes not only criminal 
offsenses, but also proceedings related to criminal matters, 
which may be civil or administrative in nature. Article 1(3) 
states that, except as 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.
    This Treaty, like the mutual legal assistance treaties with 
Antigua and Barbuda and Saint Kitts and Nevis, includes a side 
instrument which confirms that assistance under the Treaty 
includes criminal tax matters. At St. Vincent's request, the 
side instrument takes the form of a Protocol rather than an 
exchange of diplomatic notes, but is substantively identical in 
content. Like the other two mutual legal assistance treaties, 
the Protocol forms an integral part of the Treaty. The Protocol 
states that the United States does not intend to seek 
assistance under the Treaty for civil and administrative income 
tax matters that are unrelated to any criminal matter. This 
merely restates what is in any event true by virtue of Article 
1(1), which is a standard provision in mutual legal assistance 
treaties.
    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 St. Vincent and 
the Grenadines, the Central Authority is the Attorney General 
or a person designated by the Attorney General. The article 
provides that the Central Authorities will 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 other essential public 
interests of the Requested State, or it 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, the e.g., the treaty with Jamaica.
    A final ground for denial of assistance is that the request 
is made pursuant to provisions of theTreaty governing search 
and seizure (Article 14) or asset forfeiture (Article 16) and relates 
to conduct which would not be an offense if it had 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 relating to assistance sought 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 must do everything 
in their power to execute a request, and that the judicial or 
other competent authorities of the Requested State must 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 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 not to use 
information or evidence obtained under the Treaty for 
proceedings other than those described in the request without 
the prior consent of the Requested State. 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, ifnecessary, 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 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 evident 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 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 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 
shall occur as soon as circumstances permit or 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 identify 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 ofany 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. 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 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 
Party and may be forfeitable or otherwise 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 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 the 
Party that provided the information of the action taken.
    Article 16(2) obligates the Contracting Parties to assist 
each other to the extent permitted by their respective laws in 
proceedings relating to forfeiture of the proceeds and 
instrumentalities of offenses, restitution to victims of crime, 
and collection of fines imposed as sentences in criminal 
prosecutions. This may include action to temporarily immobilize 
the proceeds or instrumentalities pending further proceedings. 
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. 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 will 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 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 is subject to 
ratification and the instruments are to be exchanged at 
Washington, whereupon the Treaty will enter into force. Article 
19(3) provides that the Treaty will apply to requests presented 
after the date of its entry into force, whether the relevant 
acts or omissions occurred prior to or after that date. Article 
19(4) further provides that either party may terminate the 
Treaty by written notice of the other party, termination to 
take effect six months following the date of receipt of such 
notice.
    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 and related Protocol by the 
Senate as soon as possible.
    Respectfully submitted,
                                                     Strobe Talbot.