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[Senate Treaty Document 105-47]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 2d Session                                                      105-47
_______________________________________________________________________


 
  TREATY WITH CZECH REPUBLIC ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL 
                                MATTERS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE CZECH REPUBLIC ON 
 MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON 
                            FEBRUARY 4, 1998





 May 22, 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 22, 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 United States of America and the Czech Republic on Mutual 
Legal Assistance in Criminal Matters, signed at Washington on 
February 4, 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 terrorism, other violent 
crimes, drug trafficking, money laundering, and other ``white-
collar'' crime. The Treaty is self-executing.
    The Treaty provides for a broad range of cooperation in 
criminal matters. Mutual assistance available under the Treaty 
includes: locating or identifying persons or items; serving 
documents; taking testimony or statements of persons; 
transferring persons in custody for testimony or other 
purposes; providing documents, records, and articles of 
evidence; executing requests for searches and seizures; 
immobilizing assets; assisting in proceedings related to 
forfeiture of assets, restitution, and criminal fines; and 
providing any other assistance consistent with 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, April 14, 1998.
The President,
The White House.
    The President: I have the honor to submit to you the Treaty 
between the United States of America and the Czech Republic on 
Mutual Legal Assistance in Criminal Matters (the ``Treaty'') 
signed at Washington on February 4, 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.
    The Treaty with the Czech Republic contains all essential 
provisions sought by the United States. It will enhance our 
ability to investigate and prosecute a variety of offenses, 
including drug trafficking, terrorism, other violent crime, and 
money laundering and other white collar crime. The Treaty is 
designed to be self-executing and will not require implementing 
legislation.
    Article 1 sets forth a non-exclusive list of the major 
types of assistance to be provided under the Treaty, including 
locating or identifying persons or items; serving documents; 
taking the testimony or statements of persons; transferring 
persons in custody for testimony or other purposes; providing 
documents, records, and articles of evidence; executing 
requests for searches and seizures; immobilizing assets; 
assisting in proceedings related to forfeiture of assets, 
restitution, and criminal fines; and rendering any other 
assistance consistent with the laws of the Requested State. The 
scope of the Treaty includes not only criminal offenses, but 
also forfeiture and other proceedings related to criminal 
offenses, 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, except that the 
Requested State may refuse to comply in whole or in part with a 
request to the extent that the conduct would not constitute an 
offense under its laws and the execution of the request would 
require a court order. The Requested State must make every 
effort to approve a request for assistance requiring such a 
court order and grant assistance where the request establishes 
a reasonable suspicion that the conduct, had it occurred in 
that state, would constitute an offense under its laws. Article 
1(4) states explicitly that the Treaty is not intended to 
create rights on the part of any private person 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 the Czech Republic, the 
Central Authority is the Office of the Prosecutor General and 
the Ministry of Justice. This dual Central Authority 
arrangement for the Czech Republic reflects the importance and 
independence of the Office of the Prosecutor General in the 
Czech Republic's criminal justice system. Although such an 
arrangement is very rare among U.S. treaties in the mutual 
assistance field, no practical problems with implementation of 
the Treaty are anticipated.
    Article 2 specifies on whose behalf each Central Authority 
will make requests and it provides that the Central Authorities 
will communicate directly with one another for purposes of the 
Treaty.
    Article 2 also requires each Central Authority to use its 
best efforts to ensure that a request is not made where, in its 
view, the offense does not have serious consequences or the 
extent of assistance requested is unreasonable in view of the 
sentence expected upon conviction.
    Article 3 sets forth the limited 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 
military offense that would not be an offense under ordinary 
criminal law applicable generally or to a political offense (a 
term expected to be defined on the basis of its usage in 
extradition treaties). In addition, a request may be denied if 
its execution would prejudice the sovereignty, security, order 
public, or similar essential interests of the Requested State, 
or if the request is not made in conformity with the Treaty.
    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. Unless 
otherwise agreed, a request, including any attachments, shall 
be in the language of the Requested State. The Requested State 
has no obligation to translate the response, including any 
attachments.
    Article 5 requires that the Central Authority of the 
Requested State execute the request promptly or transmit it to 
the authority having jurisdiction to do so. It provides that 
the competent authorities of the Requested State, including 
courts, must have the authority to issue such orders to execute 
a request under the Treaty as are authorized under the laws of 
the Requested State with respect to domestic proceedings and 
must do everything in their power to execute the request.
    Under Article 5(3), requests are to be executed in 
accordance with the laws of the Requested State except to the 
extent 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 proceeding in that State, it may postpone execution 
or, after consulting with the Central Authority of the 
Requesting State, impose conditions on such execution. If the 
Requesting State accepts assistance subject to such 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(6) requires the Central Authority of the 
Requested State to respond to reasonable inquiries by the 
Central Authority of the Requesting State regarding the status 
of the execution of a request. Article 5(7) requires the 
Central Authority of the Requested State to report promptly to 
the Central Authority of the Requesting State on the outcome of 
the execution of a request and, if the request is delayed or 
postponed, to inform the Requesting State's Central Authority 
of the reasons therefor.
    Article 6 apportions between the two States the cost 
incurred in executing a request. It provides that the Requested 
State must pay all costs relating to the execution of the 
request, except for the following items to be paid by the 
Requesting State: fees of experts, the costs of translation, 
interpretation, and transcription, and allowances and expenses 
related to the travel of persons travelling either in the 
Requested State for the convenience of the Requesting State or 
pursuant to Articles 11, 12, and 13. If completeexecution will 
entail expenses of an extraordinary nature, the Central Authorities are 
to consult to determine the terms and conditions under which execution 
may continue.
    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 
other than in the proceeding described in the request without 
its prior consent.
    Article 8 establishes a procedure for consultation between 
Central Authorities in situations where a condition imposed by 
the Requested State conflicts with a constitutional obligation 
in the requesting State to disclose information. The Central 
Authority of the Requested State is required to use its best 
efforts to permit disclosures; with respect to a condition 
imposed pursuant to Article 7, it is required to permit 
disclosure unless prohibited by its law.
    While Articles 7 and 8 vary from the U.S. model text, which 
permits disclosure to meet constitutional obligations, the 
flexibility they afford in allowing initial production of 
information is viewed as benefiting U.S. interests overall. The 
Department of State understands that the only circumstance in 
which Czech law would not permit release is when information is 
obtained from use of a wiretap. In that situation, federal and 
state prosecutors in the U.S. in principle would face 
limitations in their ability to pursue prosecution with respect 
to a defendant who is denied access to the information obtained 
from the Czech Republic.
    Article 8(2) provides that information or evidence that has 
been made public in the course of being used appropriately in 
the proceeding for which it was provided may be used thereafter 
for any purpose.
    Article 9 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 provide a statement, 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 
items and articles of evidence.
    Article 9(3) further requires the Requested State to allow 
the presence of persons specified in the request and to allow 
them to specify questions to be posed to the person giving the 
testimony or statement or producing the 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 9(4) provides that the 
testimony, statement, or other evidence shall be taken and 
provided, together with the claim, to the Central Authority of 
the Requesting State for resolution by competent authorities of 
that State.
    Finally, in order to ensure admissibility in evidence in 
the Requesting State, Article 9(5) provides a mechanism, 
through the use of Form A appended to the Treaty, for 
authenticating evidence that is produced pursuant to this 
Article or that is the subject of testimony taken in the 
Requested State, as well as a mechanism for attesting to the 
absence of such records through the use of Form B appended to 
the Treaty.
    Article 10 requires that the Requested State provide the 
Requesting State with copies of publicly available records in 
the possession of a government department or agency or a court 
in the Requested State. The Requested State may further provide 
copies of records or information in the possession of a 
government department or agency or a court in that State, 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 entirely or in part. Article 10(3) 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 or the 
absence of such records through use of Form D appended to the 
Treaty.
    Article 11 provides a mechanism for the Requesting State to 
invite the voluntary appearance in the Requesting State or in a 
third State of aperson located in the Requested State. The 
Requesting State shall indicate the extent to which the expenses will 
be paid.
    Article 11 further provides that an invited person may not 
be prosecuted, detained, or subjected to any restriction of 
personal liberty in the Requesting State by reason of acts or 
convictions that preceded the person's departure from the 
Requested State. The Central Authority of the Requesting State 
has discretion to extend safe conduct to the effects of service 
of process or to limit the application of the safe conduct. Any 
such extension or limitation of safe conduct is required to be 
communicated to the invited person before the person travels to 
the Requesting State. Any safe conduct provided for by this 
Article ceases seven days after the person has been notified 
that the person's presence is no longer required, or when the 
person has left the Requesting State and voluntarily returns to 
it.
    Article 12 provides for the temporary transfer of a person 
in custody in the Requested State to the Requesting State or to 
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 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. Article 12(3) establishes both the express authority and 
the obligation of the receiving State to maintain the person 
transferred in custody unless otherwise agreed by the Central 
Authorities of both States. 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 13 facilitates transit through the Requested 
State's territory of a person held in custody in a third State 
whose personal appearance has been requested by the Requesting 
State to give testimony or evidence or otherwise provide 
assistance in criminal proceedings or other proceedings related 
to criminal offenses. Article 13(3) also provides that the 
Requested State has both the authority and the obligation to 
keep the person in custody during transit. Each Contracting 
State may refuse to grant transit of its nationals.
    Article 14 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items specified in a request.
    Article 15 requires the Requested State to use its best 
efforts to effect service of any document relating, in whole or 
in part, to a request for assistance under the Treaty. Any 
request for the service of a document inviting 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 15 
includes a description of two acceptable means of providing 
service, but does not preclude use of other means.
    Article 16 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 person 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. The certificate is 
admissible in evidence in the Requesting State. Article 16 
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 the item 
to be transferred.
    Article 17 provides that, at or before the time of 
transfer, the Central Authority of the Requested State may 
require that the Requesting State return as soon as possible 
any item furnished under the Treaty. A request for return not 
made until after the transfer shall be complied with to the 
extent feasible.
    Article 18 requires the Requested State, upon request, to 
use its best efforts to ascertain whether proceeds or 
instrumentalities of an offense, potentially forfeitable or 
otherwise subject to seizure under either State's laws, are 
located in the Requested State. To the extent permitted by its 
laws, the Requested State may take protective measures, 
including seizure and temporary immobilization, to ensure that 
such proceeds or instrumentalities are available for 
forfeiture, and may give effect to a final forfeiture 
determination in the Requesting State or initiate its own legal 
action for the forfeiture of such assets. A Contracting State 
that enforces a final legal determination regarding such assets 
shall dispose of them in accordance with its laws. Either 
Contracting State may share all or part of such forfeited 
assets, or the proceeds of their sale, with the other State to 
the extent permitted by the transferring State's laws and upon 
such terms as it deems appropriate, giving due consideration to 
relevant factors including the extent of cooperation provided 
by the other Contracting State.
    Article 19 obligates the Contracting States to assist each 
other to the extent permitted by their respective laws to 
facilitate restitution, including transfer of items obtained 
through criminal activity.
    Article 20 obligates the States to assist each other to the 
extent permitted by their respective laws in proceedings 
regarding criminal fines, excluding collection of such fines.
    Article 21 states that the Treaty is not intended to 
prevent the Contracting States from seeking and granting 
assistance to each other through provisions of other 
international agreements or domestic laws.
    Article 22 provides that the Central Authorities of the 
Contracting States shall consult, at times mutually agreed, to 
promote the most effective use of the Treaty and to agree on 
practical measures as may be necessary to facilitate the 
Treaty's implementation.
    Article 23 provides that the Treaty shall be subject to 
ratification and that the instruments of ratification shall be 
exchanged at Prague. The Treaty shall enter into force two 
months after the exchange of instruments of ratification. 
Article 23(3) provides that the Treaty shall apply to requests 
presented after its entry into force even if the relevant acts 
or omissions occurred before that date. In addition, Article 23 
allows either Contracting State to terminate the Treaty with 
six months written notice to the other Contracting State, 
termination to take effect six months following 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 
recommending approval of this Treaty by the Senate as soon as 
possible.
    Respectfully submitted.
                                                Madeleine Albright.