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[Senate Treaty Document 106-20]
[From the U.S. Government Publishing Office]



106th Congress 
 2d Session                      SENATE                     Treaty Doc.
                                                                 106-20
_______________________________________________________________________

                                     



 
                  TREATY WITH ROMANIA 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 ROMANIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, 
                  SIGNED AT WASHINGTON ON MAY 26, 1999




 February 3, 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 3, 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 Romania on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on May 26, 1999. 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 taking 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 
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 United States of America and Romania 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 money-laundering and 
drug-trafficking offenses of particular interest to the U.S. 
law enforcement community.
    The Treaty is designed to be self-executing and will not 
require new legislation. Article 1 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 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 an 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 Romania, the Central Authority is 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 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 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, 
(iii) the request relates to an offense which is considered by 
the Requested State to be a political offense (a term the 
meaning of which is well-defined in the extradition context and 
expected to be defined on that basis in connection with mutual 
assistance), or (iv) 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 ofthe Requesting State of the reasons for the denial. 
Under Article 3(4), the Requested State cannot refuse to execute a 
request on the ground of bank secrecy.
    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 requests to be 
made in other forms in urgent situations, but requires written 
confirmation within ten days unless the Central Authority of 
the Requested State agrees otherwise. The request must also be 
translated into the language of the Requested State, unless 
otherwise agreed. Any supporting documentation must be 
translated into the language of the Requested State, if 
necessary, upon request of the Requested State.
    Article 5(1) requires the Central Authority of the 
Requested State to execute the request promptly or 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 the 
competent judicial or other authorities of the Requested State 
must have power to issue subpoenas, search warrants, or other 
orders necessary to execute the request. Under Article 5(2), 
the Central Authority of the Requested State must make all 
necessary arrangements for representation of the Central 
Authority of the Requesting State in the execution of a request 
for assistance in the Requested State.
    Under Article 5(3), requests are to be executed according 
to the laws and procedures of the Requested State except to the 
extent that the Treaty provides otherwise. However, procedures 
specified in the request are to be followed except to the 
extent that those procedures cannot lawfully be followed 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, prior to the execution of the request, 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 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; 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 therefor.
    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 experts, costs of translation, 
interpretation, and transcription, and the allowances and 
expenses related to travel of persons pursuant to Articles 10, 
11 and 12. If during the execution of a request it becomes 
apparent that complete execution will entail expenses of an 
extraordinary nature, the Central Authorities shall consult to 
determine the terms and conditions under which execution may 
continue.
    Article 7(1) 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 
thanthat described in the request without its prior consent. 
Further, under Article 7(2), 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. Article 
7(3) provides that nothing in this article prevents the use or 
disclosure of information or evidence to the extent that there is an 
obligation to do so under the Constitution of the Requested 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 
Article 7(1) or 7(2), 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, 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.
    Article 8(3) further requires the Requested State to permit 
the presence of persons specified in the request (such as the 
accused, counsel for the accused, or other interested persons) 
and to permit them to question directly or indirectly the 
person giving the testimony or evidence. The persons present at 
the execution of a request shall be permitted to make a 
verbatim record of the proceedings. The use of technical means 
to make such a verbatim record shall be permitted.
    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, but not under 
the laws of the Requested State, Article 8(4) provides that the 
testimony or evidence shall be taken and the claim made known 
to the Central Authority of the Requesting State for resolution 
by its authorities.
    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, which are appended to the 
Treaty, for certifying evidence, including business records, 
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(1) requires that the Requested State provide the 
Requesting State with copies of publicly available records in 
the possession of a governmental or judicial authority in the 
Requested State. Under Article 9(2), the Requested State may 
further provide copies of records or information in any form in 
the possession of a governmental or judicial authority in that 
State, but not publicly available, to the same extent and under 
the same conditions as it would provide them to its own 
governmental or judicial authorities. The Requested State has 
the discretion to deny such requests entirely or in part. 
Article 9(3) provides that no further certification shall be 
necessary for admissibility into evidence in the Requesting 
State of official records where the official in charge of 
maintaining them certifies the records through the use of Form 
C appended to the Treaty. In like manner, the absence or 
nonexistence of such records is, upon request, to be certified 
by the use of Form D, which shall be admissible in evidence in 
the Requesting State.
    Article 10(1) provides a mechanism for the Requesting State 
to invite the voluntary appearance in its territory of a person 
located in the Requested State or in a third State for the 
purpose of assistance under the Treaty. If necessary, the 
Requesting State shall be responsible for obtaining 
authorization from a third State. Article 10(2) provides that 
the Requesting State shall indicate the extent to which the 
person's expenses will be paid.
    Article 10(3) provides that the Central Authority of the 
Requesting State has discretion to determine that a person 
appearing in the Requesting State pursuant to this article 
shall not be subject to service of process, or be detained or 
subjected 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 for temporary transfer of a person in 
custody in the Requested State to the Requesting State or 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 or to a third 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. If necessary, the Requesting 
State shall be responsible for obtaining any authorization from 
a third State. The article also provides for voluntary transfer 
of a person in the custody of the Requesting State to the 
Requested State for purposes of assisting under the Treaty (for 
example, a defendant in the Requesting State may be transferred 
for purposes of attending a witness deposition in the Requested 
State), if the person consents and if the Central Authorities 
of both States agree.
    Article 11(3) further establishes both the express 
authority and the obligation of the receiving State to maintain 
the person transferred in custody unless otherwise authorized 
by the sending 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 12(1) provides that a Requested State may authorize 
the transit through its territory of a person held in custody 
by the Requesting State or a third State, whose appearance has 
been requested in an investigation, prosecution, or proceeding 
in the Requesting State. Article 12(2) establishes the 
authority and obligation of the Requested State to maintain the 
person transferred in custody.
    If the Requesting State seeks the location or identity of 
persons or items in the Requested State, Article 13 requires 
the Requested State to use its best efforts to ascertain the 
location or identity of such persons or items.
    Article 14 obligates the Requested State to use its best 
efforts to effect service of any document 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 includes the information 
justifying such action under the laws of the Requested State. 
The Article also provides that, upon request, every official 
who has custody of a seized item 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 Forms 
are admissible in evidence in the Requested State. Article 
15(3) further provides that the Central Authority of the 
Requested State may impose upon the Requesting State terms 
andconditions deemed 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 documents, records or other articles of 
evidence obtained in the execution of a request under the 
Treaty as soon as possible.
    Article 17(1) provides that, if the Central Authority of 
one Contracting Party becomes aware of proceeds or 
instrumentalities of offenses that are located in the other 
Contracting 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 Contracting Party. If the Party 
receiving such information has jurisdiction, it may present 
this information to its authorities for a determination whether 
any action is appropriate. The Central Authority of the 
Contracting Party receiving such information is required to 
inform the Central Authority of the Contracting Party that 
provided the information of the action taken.
    Article 17(2) also obligates the Central 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 
Contracting 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 Contracting Party's laws and upon such terms as it 
deems appropriate.
    Article 18 states that assistance and procedures provided 
in the Treaty will not prevent either Contracting Party from 
granting assistance to the other Contracting Party through the 
provisions of other applicable international agreements or 
through the provisions of its national laws. The Contracting 
Parties may also provide assistance pursuant to any bilateral 
arrangement, agreement 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(1) provides that the Treaty is subject to 
ratification and the Treaty will enter into force upon the 
exchange of 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) provides 
that either Contracting Party may terminate the Treaty by 
written notice to the other Contracting Party, 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 
favoring approval of this Treaty by the Senate as soon as 
possible.
    Respectfully submitted,
                                                     Strobe Talbot.