Text - Treaty Document: Senate Consideration of Treaty Document 106-18All Information (Except Treaty Text)

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[Senate Treaty Document 106-18]
[From the U.S. Government Publishing Office]





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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.