TREATY WITH CZECH REPUBLIC ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERSSenate Consideration of Treaty Document 105-47
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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.