Treaty with Greece on Mutual Legal Assistance in Criminal MattersSenate Consideration of Treaty Document 106-18
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[Senate Treaty Document 106-18] [From the U.S. Government Publishing Office] ----------------------------------------------------------------------- 106th Congress Treaty Doc. 2d Session SENATE 106-18 _______________________________________________________________________ TREATY WITH THE HELLENIC REPUBLIC ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES TRANSMITTING TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE HELLENIC REPUBLIC ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON MAY 25, 1999 February 1, 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, February 1, 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 the Hellenic Republic of Mutual Legal Assistance in Criminal Matters, signed at Washington on May 26, 1999. 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 including taking testimony or statements of persons; providing documents, records, and other items; locating and identifying persons or items; serving documents; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; assisting in proceedings relating to immobilization and forfeiture of assets, restitution, and 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 give its advice and consent to ratification. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, December 10, 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 the Hellenic Republic on Mutual Legal Assistance in Criminal Matters (the ``Treaty''), signed at Washington on May 26, 1999. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification. The Treaty covers mutual legal assistance in criminal matters. In recent years, similar bilateral treaties have entered into force with a number of countries. This Treaty contains many provisions similar to those in the other treaties and 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 United States law enforcement community with respect to Greece. The Treaty is designed to be self-executing and will not require new legislation. Article 1(2) 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 other items; 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 any other form of assistance not prohibited by the laws of the Requested State. The scope of the Treaty includes not only criminal offenses, but also proceedings related to criminal matters, which may be civil or administrative in nature. Article 1(3) states that, except as otherwise provided in the Treaty, assistance shall be provided without regard to whether the conduct that is the subject of the investigation, prosecution, or proceeding in the Requesting State would constitute an offense under the laws of the Requested State. Article 1(4) states explicitly that the Treaty is not intended to create rights of private parties to obtain, suppress, or exclude any evidence, or to impede the execution of a request. Article 2 provides for the establishment of Central Authorities and defines Central Authorities for purposes of the Treaty. For the United States, the Central Authority is the Attorney General or a person designated by the Attorney General. For Greece, the Central Authority is the Ministry of Justice or a person designated by the Minister of Justice. The Article also provides that the Central Authorities shall communicate directly with one another for the purposes of the Treaty. Article 3(1) sets forth the circumstances under which a Requested State's Central Authority may deny assistance under the Treaty. A request may be denied if: (i) it relates to a political offense or an offense under military law that would not be an offense under ordinary criminal law, (ii) its execution would prejudice the security or similar essential interests of the Requested State, or (iii) it is not made in conformity with the Treaty. Before denying assistance, the Central Authority of the Requested State is required under Article 3(2) to consult with its counterpart in the Requesting State to consider whether assistance can be given subject to such conditions as the Central Authority of the Requested State deems necessary. If the Requesting State accepts assistance subject to such conditions, it is required to comply with the conditions. If the Central Authority of the Requested State denies assistance, it is required under Article 3(3) to inform the Central Authority of the Requesting State of the reasons for the denial. Article 4 prescribes the form and content of requests under the Treaty, which must be in writing, and specifies in detail the information required in each request. In urgent situations, the Article permits requests to be transmitted by the most rapid available means. The request shall be confirmed in twenty days, if necessary. Unless otherwise agreed, the request must be in the language of the Requested State. Article 5 requires the Central Authority of the Requested State to execute the request promptly or, where appropriate, 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 competent judicial or other authorities of the Requested State shall have power to issue subpoenas, search warrants, or other orders necessary to execute the request. The Central Authority of the Requested State is required to make all necessaryarrangements for the execution of a request for assistance on behalf of the Requesting State. Under Article 5(3), requests are to be executed in accordance with the laws and procedures of the Requested State except to the extent that the Treaty provides otherwise. Procedures specified in the request are to be followed except to the extent that those procedures cannot lawfully be followed in the Requested State. Where neither the Treaty nor the request specifies a particular procedure, the request shall be executed in accordance with the appropriate procedure under the laws applicable for criminal investigation or proceedings in the Requested State. Under Article 5(4), 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 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 such 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) 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. Article 5(7) requires the Requested State's Central Authority to report promptly to the Requesting State's Central Authority the outcome of its execution and, if execution of the request is denied, delayed or postponed, to inform the Requesting State's Central Authority of the reasons for the denial, delay or postponement. Article 6 apportions between the two States the costs incurred in executing a request. It provides that the Requested State shall pay all costs, including the costs of representation, except for the following items to be paid by the Requesting State: fees of expert witnesses, costs of translation, interpretation, and transcription, and the allowances and expenses related to travel of persons pursuant to Articles 10 and 11. Article 7 requires the Requesting State to comply with any request by the Central Authority of the Requested State that information or evidence obtained under the Treaty not be used for any investigation, prosecution, or proceeding other than that described in the request without its prior consent. Further, if the Requested State's Central Authority asks that information or evidence furnished be kept confidential or be used in accordance with specified conditions, and the Requesting State accepts the information subject to such conditions, the Requesting State must use its best efforts to comply with the conditions. The Article does not preclude the use or disclosure of information or evidence 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. Once information is made public in the Requesting State in accordance with the provisions of the article, no further limitations on use apply. Article 8(1) provides that a person in the Requested State from whom testimony or evidence is requested shall be compelled, if necessary, to appear and testify or produce items, including documents, records, and other articles of evidence. Article 8(2) requires the Central Authority of the Requested State, upon request, to furnish information in advance about the date and place of the taking of testimony or evidence pursuant to this Article. Article 8(3) further requires the Requested State to permit the presence of persons specified in the request and to permit them to question the person giving the testimony or evidence. Specifically, the persons permitted to pose questions are: (i) two representatives of the Requesting State; (ii) all parties to the criminal proceeding that is the basis for the request; (iii) attorneys for the parties; and (iv) support personnel necessary to the proceeding. 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 may nonetheless be taken and the claim made known to the Central Authority of the Requesting State for resolution by its authorities as soon as possible. Finally, in order to ensure admissibility in evidence in the Requesting State, Article 8(5)provides a mechanism, through the use of Forms A and B appended to the Treaty, for authenticating evidence that is produced pursuant to or that is the subject of testimony taken in the Requested State (or certifying its absence or nonexistence). Article 9 requires that the Requested State provide the Requesting State with copies of publicly available records in the possession of government departments and agencies in the Requested State. The Requested State may further provide copies of records or information in any form in the possession of a government department or agency 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 9(3) also provides that, upon request, no further authentication shall be necessary for admissibility into evidence in the Requesting State of official records where the records are authenticated under the provisions of the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents of October 5, 1961, or through the use of Form C appended to the Treaty by the official in charge of maintaining the records. In like manner, the absence or nonexistence of such records is, upon request, to be certified by an official responsible for maintaining similar records through the use of Form D, which is also appended to the Treaty. Records authenticated under Article 9(3), Form C, or Form D shall be admissible in evidence in the Requesting State. Article 10 provides a mechanism for the Requesting State to invite the voluntary appearance in its territory of a person located in the Requested State. Article 10(2) requires the Requesting State to indicate the extent to which the person's expenses will be paid. A person who agrees to appear may ask that the Requesting State advance money to cover these expenses. This advance may be provided through the Embassy or a consulate of the Requesting State. Article 10(3) provides that a person appearing in the Requesting State pursuant to this Article shall not be subject to service of process, detained, or subject to any restriction of personal liberty by reason of any acts or convictions that preceded the person's departure from the Requested State. Under Article 10(4), any safe conduct provided for by this Article ceases seven days after the Central Authority of the Requesting State has notified the Central Authority of the Requested State that the person's presence is no longer required, or when the person having left, has voluntarily returned. The Central Authority of the Requesting State may extend this safe conduct period for up to fifteen days if it determines that there is good cause to do so. Article 11 provides that a person who is in the custody of the Requested State and whose presence outside of the Requested State is sought for purposes of assistance under the Treaty, shall be transferred from the Requested State for that purpose if the person consents and the Central Authorities of both State agree. Under this Article, for example, a witness incarcerated in the Requested State could be transferred to the Requesting State to have his deposition taken in the presence of the defendant. Article 11(2) provides that a person in the custody of the Requesting State whose presence in the Requested State is sought for purposes of assistance under the Treaty may be transferred from the Requesting State to the Requested State for that purpose if the person consents and the Central Authorities of both States agree. For example, a defendant in the Requesting State could be transferred to attend a witness deposition in the Requested State. Article 11(3) further establishes both the express authority and the obligation of the receiving State of maintain the person transferred in custody unless otherwise authorized by the sending State. The return of the person transferred is subject to terms and conditions agreed to by the Central Authorities, and the sending State is not required to initiate extradition proceedings for return of the person transferred. The person transferred receives credit for service of the sentence imposed in the sending State for time served in the custody of the receiving State. Article 12 states that 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 in an investigation, prosecution, or proceeding. The Requested State shall have the authority and the obligation to keep the person in custody during transit. Article 13 requires the Requested State to use its best efforts to ascertain the location or identity of persons or items in the Requested State specified in a request. Article 14 obligates the Requested State to use its best efforts to effect service of anydocument relating, in whole or in part, to a request 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 15 obligates the Requested State to execute requests for search, seizure, and transfer of any item to the Requesting State if the request justifies such action under the laws of the Requested State. The Article provides that, upon request, every official who has custody of a seized item is required to certify, through the use of Form E appended to the Treaty, the identity of the item, the continuity of the item's custody and any changes in its condition. No further certification is required and the Form is admissible in evidence in the Requesting State. Article 15(3) further provides that the Central Authority of the Requesting State may impose upon the Requesting State terms and conditions deemed to be necessary to protect third-party interests in items to be transferred. Article 16 requires the Requesting State's Central Authority, upon request of its counterpart in the Requested State, to return, as soon as possible, documents, records or other articles of evidence obtained in the execution of a request under the Treaty. Article 17(1) provides that, if the Central Authority of one 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 as to 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 17(2) obligates the Parties to assist each other to the extent permitted by their respective laws in proceedings relating to forfeiture of proceeds and instrumentalities of offenses, restitution to victims of crime, and collection of fines imposed as sentences in criminal prosecutions. Under Article 17(3), the Contracting 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 Contracting party, to the extent not prohibited by the transferring Party's laws and upon such terms as it deems appropriate. Article 18 states that assistance and procedures provided in the Treaty shall not prevent either 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 or practice that may be applicable. Article 19 provides that the Central Authorities shall consult, at times mutually agreed, to promote the most effective use of the Treaty, and may agree upon such practical measures as may be necessary to facilitate the Treaty's implementation. Article 20 provides that the Treaty is subject to ratification and will enter into force sixty days after the exchange of the instruments of ratification. Article 20(3) provides that the Treaty applies to requests presented after the date of its entry into force, whether the relevant acts or omission occurred prior to or after that date. Article 20(4) further provides that either Party may terminate the Treaty by written notice to the other Party, with suchtermination to take effect one year following the date of receipt of the notification. A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by the United States negotiating delegation, consisting of representatives from the Departments of Justice and State, and will be transmitted separately to the Senate Committee on Foreign Relations. The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate as soon as possible. Respectfully submitted. Strobe Talbot.