Treaty with France on Mutual Legal Assistance in Criminal MattersSenate Consideration of Treaty Document 106-17
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[Senate Treaty Document 106-17] [From the U.S. Government Publishing Office] 106th Congress Treaty Doc. SENATE 2d Session 106-17 _______________________________________________________________________ TREATY WITH FRANCE 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 FRANCE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT PARIS ON DECEMBER 10, 1998 January 31, 2000.--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 __________ U.S. GOVERNMENT PRINTING OFFICE 79-118 WASHINGTON : 2000 LETTER OF TRANSMITTAL ---------- The White House, January 31, 2000. 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 France on Mutual Legal Assistance in Criminal Matters, signed at Paris on December 10, 1998. I transmit also, for the Senate's information, an explanatory note agreed between the Parties regarding the application of certain provisions. The report of the Department of State with respect to the Treaty is enclosed. 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 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: obtaining the testimony or statements of persons; providing documents, records, and items 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, December 14, 1999. 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 France on Mutual Legal Assistance in Criminal Matters (the ``Treaty''), signed at Paris on December 10, 1998. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification. Accompanying the Treaty is an explanatory note between the Parties regarding the application of certain provisions. I recommend that this note be transmitted for the information of the Senate. 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 all of the essential provisions sought by the United States. It will enhance our ability to investigate and prosecute a variety of offenses, including terrorism and drug- trafficking offenses of particular interest to the U.S. law enforcement community with respect to France. The Treaty is designed to be self-executing and will not require new legislation. Article 1(1) establishes the Parties' obligation to afford each other the widest measure of mutual assistance in criminal investigations or proceedings. Article 1(2) limits the scope of the treaty, setting forth the circumstances under which the Treaty does not apply. These circumstances include: the execution of requests for provisional arrest and extradition, the enforcement of criminal judgments except for forfeiture decisions referred to in Article 11, or offenses under military law that do not constitute offenses under ordinary criminal law. Article 1(3) states explicitly that the Treaty is not intended to affect the exercise of rights otherwise available to private persons under the laws of the State presented with a claim based on rights. In the explanatory note on the Treaty, the Parties agreed that, for the United States, the Treaty does not create a new right for private persons to obtain assistance, to suppress or exclude any testimony or evidence, or to impede the execution of a request. Article 2(1) 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 a person designated by the Attorney General. For France, the Central Authority is the Ministry of Justice. The Central Authorities shall communicate directly with one another for the purposes of the Treaty. Article 2(2) states that the Central Authorities are obligated to 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, in particular those related to the implementation of Article 9. Under Article 2(3), the Central Authorities are required to provide each other with information regarding the execution of requests, and to respond to inquiries regarding progress toward execution of specific requests. Article 3 provides that the requests from Central Authorities shall emanate from competent authorities. For the United States, the competent authorities are prosecutors and authorities with statutory or regulatory responsibility for investigations of criminal offenses, including the referral of matters to proseuctors for criminal prosecution. During the negotiation of Article 3, the Parties agreed not to attempt to list exhaustively in the Treaty the numerous state and federal authorities in the United States that fall under the definition of ``competent authorities,'' particularly because the inadvertent omission of one from the list could diminish the value of the Treaty to the United States. The explanatory note does set forth an illustrative short list of such authorities, however. To facilitate the identification of competent authorities of the United States by France, Article 3 provides that the presentation by the U.S. Central Authority of a request coming from a competent authority establishes the competence of those authorities. Article 3 further states that the competent authorities for France are the judicial authorities including the public prosecutor. Article 4 prescribes the form and content of requests under the Treaty, specifying in detail the information required in each request. Requests for assistance shall be in writing. Where appropriate, the Requesting State may indicate any time limit within which the assistance should be provided. Article 5 establishes a mechanism for transmission of requests. The Central Authority of the Requesting State is required to send requests to the Central Authority of the Requested State. The results of execution shall be returned through the same channel unless the Central Authorities agree otherwise. In urgent situations, an advance copy of a request may be transmitted by any means, including Interpol. Thereafter, the Central Authority of the Requesting State is required to transmit the original request to the Central Authority of the Requested State. Article 6(1) sets forth the circumstances under which the Requested State may deny legal assistance. A request may be denied if: (i) the offense to which the request relates is a political offense or an offense related to a political offense; or (ii) execution of the request would prejudice its sovereignty, security, public order, or other essential interests. Before denying assistance, 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 Central Authority of the Requested State denies assistance, it is required under Article 6(3) to inform the Central Authority of the Requesting State of the reason for denial. Under Article 7, if the Central Authority of the Requested State determines that execution of the request would interfere with an ongoing criminal investigation or proceeding in that State, it may, after consulting with the Central Authority of the Requesting State, postpone execution or impose conditions on it. If the Requesting State accepts assistance subject to the conditions, it shall comply with them. Article 8 establishes a mechanism for execution of requests, which, in accordance with Article 8(1), is to occur in accordance with the provisions of the Treaty and the laws of the Requested State. Article 8(2) states that the Central Authority of the Requested State is required to make all necessary arrangements for a request to be presented to its competent administrative and judicial authorities for execution. Administrative and judicial authorities charged with the execution of a request are obligated to use all necessary measures available under the laws of the Requested State to provide necessary or useful forms of assistance that are not prohibited by its laws. Article 8(3) provides that a person giving testimony or evidence in the Requested State may assert such claims of immunity, incapacity, or privilege as are available under the Requested State's laws. The testimony of a person who asserts a claim under the laws of the Requesting State shall be taken and the claim recorded and preserved for consideration by the judicial authorities of the Requesting State. If, within a reasonable time prior to giving testimony or evidence, the person notifies the executing authority of the Requested State of the intention to assert such a claim, the Central Authorities may consult with respect to it. Under Article 8(4), a person who gives false testimony in the execution of a request shall be subject to prosecution and punishment in the Requested State in accordance with its laws. Article 9(1) provides that, if the Requesting State requests, the Requested State shall inform it of the dates and places of the execution of the request. It further provides that the Requested State may permit the authorities and persons designated by the Requesting State to be present at, and assist in, the execution of the request, including the taking of depositions for use in a judicial proceeding in the Requesting State, subject to Articles 6 and 7. According to the explanatory note on the Treaty, Article 9(1) sets forth the principle that, with the consent of the Requested State, persons designated by the Requesting State are allowed to travel to the territory of the Requested State to be present and to assist during the execution of a request. The request for legal assistance should request the presence of these persons. This paragraph also commitsthe two Parties to accommodate such a request so that the deposition obtained in the Requested State may be used in the Requesting State in compliance with its internal procedure. This commitment does not preclude that, in certain cases, which in practice shall be most exceptional, the authority entrusted with the execution of the request may determine that the presence and assistance of the designated persons are not possible in a specific case. Article 9(2) sets forth in detail certain procedures for execution of a request, which are to be carried out as outlined in the request insofar as they are not contrary to the fundamental principles of a judicial proceeding in the Requested State. Article 9(3) states that, upon request by the Requesting State, the Requested State shall transmit original documents or records to the extent possible; otherwise, the Requested State shall transmit true copies. Article 9(4) provides that business records shall be produced together with a certificate or proces-verbal following the requirements of Form A appended to the Treaty, and that such records shall be admissible in evidence in the Requesting State. Article 10 obligates the Requested State to execute requests for the 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. It provides that, if the Requesting State requests, a competent authority in the Requested State shall provide a certificate or proces-verbal that: (i) identifies the item seized; (ii) identifies every official who has had custody of the item seized; and (iii) describes the circumstances of custody. Article 10 further provides that if, after seizure, any transfer of custody of or material change in the item seized occurs, the competent authority in the Requested State is required to provide an additional certificate or proces-verbal that describes the circumstances of such transfer of custody or material change. No further proof of the identity of the item, the continuity of custody, or the integrity of its condition is required. The certificates or proces-verbaux shall be admissible in evidence in the Requesting State as proof thereof. Article 11 establishes a mechanism for providing assistance for proceedings related to the forfeiture of proceeds or instrumentalities of criminal offenses. Article 11(2) provides that, upon the request of the Requesting State, the Requested State is obligated to take appropriate measures to locate and identify proceeds or instrumentalities of offenses within the Requested State. The request must specify the reasons for believing that proceeds or instrumentalities are within the Requested State. The Requested State is required to inform the Requesting State of the results of its inquiry. Article 11(3) states that, at the request of the Requesting State, the Requested State may take protective measures to immobilize temporarily proceeds or instrumentalities to ensure their availability for forfeiture. Article 11(4) provides that, at the request of the Requesting State, the Requested State may execute a final decision of forfeiture pronounced by judicial authorities of the Requesting State. The execution of such a request shall be in accordance with the laws of the Requested State. Under Article 11(5), the Requested State that executes a final forfeiture decision shall dispose of the forfeited proceeds and instrumentalities in accordance with its laws. As it determines appropriate, the Requested State also may transfer all or part of such assets, or the proceeds of their sale, to the Requesting State. Article 11 further provides that, insofar as cooperation between the two States contributed to a final forfeiting decision, the forfeiture State, to the extent permitted by its laws and upon such terms as it deems to be appropriate, may transfer all or part of such assets, or the proceeds of their sale, to the other State. Article 12 permanently transfers to the Requesting State articles of evidence, including original documents and records, that are transmitted pursuant to a request, unless the Requested State asks at the time of transmission for their return. Article 12 provides further that the Requested State may require that the Requesting State agree to terms and conditions for the care and return of articles of evidence deemed to be necessary to protect third-party interests. Article 13 obligates the States to assist each other to facilitate restitution to the extent permitted by their respective laws. Article 14(1) requires the Requested State to use its best efforts to keep confidential arequest and its contents if such confidentiality is requested by the Central Authority of the Requesting State. If the request cannot be executed without a breach of confidentiality, the Central Authority of the Requested State shall inform the Central Authority of the Requesting State, which will then determine whether the request should nevertheless be executed. Under Article 14(2), 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, the Requesting State must use its best efforts to comply with the conditions. Article 14(3) further permits the Central Authority of the Requested State to request that the Requesting State not use any information or evidence obtained under this Treaty in any investigation or proceeding other than that described in the request without the prior consent of the Requested State. Under such circumstances, the Requesting State shall comply with the condition. Article 14(4) states that nothing in Article 14 shall preclude the use or disclosure of information or evidence to the extent that an obligation to do so in a criminal proceeding exists, for the United States under its Constitution or for France under its Constitution and general principles of its law having Constitutional value. To the extent possible, the Requesting State shall notify the Requested State in advance of any such use or disclosure. Under Article 14(5), information and evidence obtained under the conditions referred to in Articles 14(2) or 14(3) may be used for any purpose if they have been made public within the framework of the proceeding for which they were transmitted to the Requesting State. Article 15 establishes a mechanism for service of procedural documents and judicial decisions. Under Article 15(2), service may be effected by simple transmission of the document or decision to its addressee. If the Requesting State requests, the Requested State shall serve the document using a method provided by or compatible with its laws. Article 15(3) provides that proof of service consists of a receipt dated and signed by the addressee or a statement by the Requested State noting the fact, the method, and the date of service. Either of these documents shall be sent immediately to the Requesting State. If service could not be effected, the Requested State shall inform the Requesting State immediately of the reason. Article 15(4) further requires the Central Authority of the Requesting State to transmit a document requiring the appearance of a person in the Requesting State to the Central Authority of the Requested State at least 50 days before the date of the scheduled appearance. Upon the request of the Requesting State, the Central Authority of the Requested State may waive this requirement for persons other than defendants. Article 16(1) provides a mechanism for inviting the voluntary appearance of a person in the Requested State's territory. Article 16(2) requires such a request to mention the approximate amount of the invited person's travel and subsistence costs to be reimbursed. Upon the person's request, the Requesting State may advance part or all of the funds to pay those expenses through its diplomatic or consular missions in the Requested State. Article 16(3) states that a witness or expert who has been served and who fails to comply with a document requiring an appearance in the Requesting State shall not be subjected to any sanction or measure of restraint, unless the person subsequently travels voluntarily to the Requesting State, is duly served, and again fails to comply. Article 17(1) provides that a witness or expert appearing in the Requesting State in response to a request shall not be subject to service of process, prosecuted, detained, or subjected to any other restriction of personal liberty in that State based on any prior acts or convictions unless the Requesting State's Central Authority limits such safe conduct. Any such limitation of safe conduct shall be communicated to the witness or expert at the time the witness or expert is invited to appear. Under Article 17(2), a person appearing in the Requesting State in response to a document served to answer for acts for which that person is the subject of a criminal investigation or prosecution, shall not be prosecuted, detained,or subjected to any other restriction of personal liberty for any prior acts or convictions. Article 17(3) provides that the safe conduct provided for by this Article ceases if the person, being free to leave, has not left the Requesting State within a period of fifteen consecutive days after being officially advised that the person's presence was no longer necessary, or, having left, has returned. Article 18 provides that, upon the request of either State, a person who is in custody in either State may be temporarily transferred to the receiving State to give testimony or evidence or other assistance in investigations or proceedings in relation to a criminal matter. Article 18(2) sets forth the circumstances under which a transfer may be denied: (i) if the person in custody does not consent; (ii) if the person's period of detention might be thereby extended; (iii) if the person's presence is required for ongoing criminal proceedings; or (iv) for reasons of safety, security, or other imperative concerns. Article 18(3) establishes both the express obligation and the authority of the receiving State to maintain the person transferred in custody unless the sending State authorizes the person's release. Article 18(4) provides that the receiving State shall require no proceeding to effect the return to the sending State of the person transferred. The return is required to occur by the date specified by the sending State. This period may be extended by agreement between both States. Article 18(5) obligates the sending State to deduct from the transferred person's sentence any time that the person serves in the custody of the receiving State. Article 18(6) provides that a person appearing in either State pursuant to Article 18 may receive the safe conduct authorized under Article 17. Article 19 provides that, upon the request of the Requesting State, the Requested State may authorize the transit through its territory of a person held in custody by the Requesting State or a third State whose personal appearance has been requested by the Requesting State to give testimony or evidence or otherwise provide assistance in investigations or proceedings in relation to a criminal matter. The Requested State shall have the obligation and the authority to keep the person in custody during transit. Article 20(1) requires that the Requested State, upon request, provide copies of records that are in the possession of its judicial or government authorities and that are accessible to the public. Under Article 20(2), the Requested State may provide copies of records that are in the possession of its judicial authorities or government departments or agencies but that are not accessible to the public, to the same extent and under the same conditions that would apply to its own competent authorities in obtaining such copies. The Requested State has discretion to deny a request with respect to the latter category entirely or in part. Article 20(3) further provides that official records produced pursuant to this Article and certified by a competent authority of the Requested State as official records or copies shall be admissible in evidence in the Requesting State. No further authentication shall be necessary. Article 21 obligates the Requesting State to translate the request and any supporting documents into the language of the Requested State. Under Article 22, except as otherwise provided by the Treaty, evidence, in whatever form, transmitted pursuant to the Treaty shall be exempt from all legalization formalities. Article 23 apportions between the two States the costs incurred in executing a request. It requires the Requested State to meet the costs of executing requests except for: (i) the allowances and expenses related to travel of witnesses and experts pursuant to Article 16 and the travel of persons in custody pursuant to Articles 18 and 19; (ii) the costs of interpretation and translation; (iii) the costs of services provided by private parties at the request of the Requesting State; (iv) and the fees of experts needed to fulfill a request. If during the execution of a request it becomes apparent that execution will entail expenses of an extraordinary nature, the Central Authorities are obligated to consult to determine the terms and conditions according to which execution may continue. According to the explanatory note on the Treaty, in order to minimize the expense ofobtaining depositions in the United States, the United States Government will arrange and pay for audio recordings of depositions requested by French authorities and their transmission to French authorities. On the other hand, the costs of services furnished by private parties, such as those resulting from the transcription of depositions by a court reporter, will be paid by French authorities. Under Article 24, each State may provide to the other State information and evidence relating to criminal acts and may request that the other State submit the information and evidence to its competent authorities for criminal investigation and prosecution where both States have jurisdiction to investigate and prosecute those acts. Such requests shall be transmitted through the respective Central Authorities. The Requested State shall consider initiating an investigation or prosecution as appropriate under its laws. The Requested State is required to notify the Requesting State of any action taken pursuant to the request and to transmit a copy of any decision rendered. Article 25 states that each State shall notify the other of the completion of the procedures required for the entry into force of the Treaty. The Treaty shall enter into force on the first day of the second month following the date of receipt of the latter of these notifications. Article 26 provides that either State may terminate the Treaty at any time by forwarding through the diplomatic channel written notice of termination. Termination takes effect six months after receipt 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, Madeleine Albright.