Text - Treaty Document: Senate Consideration of Treaty Document 106-35All Information (Except Treaty Text)

A Senate treaty document provides the text of the treaty as transmitted to the Senate, as well as the transmittal letter from the President, the submittal letter from the Secretary of State, and accompanying papers.

Text of Treaty Document available as:

For complete and accurate display of this text, see the PDF.

[Senate Treaty Document 106-35]
[From the U.S. Government Publishing Office]



106th Congress                                              Treaty Doc.
                                  SENATE                     
 2d Session                                                    106-35
_______________________________________________________________________

                                     



 
   TREATY WITH CYPRUS 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 REPUBLIC OF CYPRUS ON MUTUAL LEGAL ASSISTANCE IN 
  CRIMINAL MATTERS, SIGNED AT NICOSIA ON DECEMBER 20, 1999




 July 13, 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 (STAR PRINT)         WASHINGTON : 2000

                         LETTER OF TRANSMITTAL

                              ----------                              

                                    The White House, July 13, 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 Republic of Cyprus on Mutual Legal Assistance 
in Criminal Matters, signed at Nicosia on December 20, 1999. I 
transmit also, for the information of the Senate, the report of 
the Department of State with respect to the Treaty.
    The Treaty is one of a series of modern mutual legal 
assistance treaties being negotiated by the United States in 
order to counter criminal activities more effectively. Together 
with the Extradition Treaty Between the Government of the 
United States of America and the Government of the Republic of 
Cyprus, which entered into force September 14, 1999, this 
Treaty will, upon entry into force, provide an effective tool 
to assist in the prosecution of a wide variety of offenses, 
including organized crime, terrorism, drug-trafficking 
offenses, and other violent crimes as well as money laundering 
and other white collar crimes of particular interest to the 
U.S. law enforcement community. 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 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.
    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, June 15, 2000.
    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 Cyprus on Mutual Legal Assistance in Criminal 
Matters (the ``Treaty''), signed at Nicosia on December 20, 
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 other 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 organized crime, 
terrorism, drug trafficking, and other violent crimes as well 
as money laundering and other forms of white collar crime, 
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 out the scope of assistance available under 
the Treaty. Article 1(2) includes 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 assistance provided in connection with 
the investigation, prosecution, and prevention of offenses, but 
also in proceedings related to criminal matters, which may be 
civil or administrative in nature.
    Article 1(3) states that 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 intended 
solely for mutual legal assistance between the Parties and does 
not give rise to a right on the part of any private person to 
obtain, suppress or exclude any evidence, or to impede the 
execution of a request.
    Article 2 provides for the establishment of Central 
Authorities and defines Central Authorities for purposes of the 
Treaty. For the United States, the Central Authority is the 
Attorney General or a person designated by the Attorney 
General. For Cyprus, the Central Authority is the Attorney 
General or a person designated by the Attorney General. For 
Cyprus, the Central Authority is the Minister of Justice and 
Public Order or a person designated by the Minister. The 
article also provides that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty. In cases of urgency, the Treaty provides that the 
Central Authorities may transmit requests through Interpol.
    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 it relates to a 
political offense (a term expected to be defined on the basis 
of the term's usage in extradition treaties) or an offense 
under military law that would not be a offense under ordinary 
criminal law or if it is not made in conformity with the 
Treaty. In addition, a request may be denied if its execution 
would prejudice the security or similar essential interests of 
the Requested State or if it would violate the Constitution of 
the Requested State or the obligations of the Requested State 
under any international multilateral treaty relating to human 
rights.
    Before denying assistance under Article 3, the Central 
Authority of the Requested State is required to consult with 
its counterpart in the Requesting State to consider whether 
assistance can be given subject to such conditions as the 
Central Authority of the Requested State deems necessary. If 
the Requesting State accepts assistance subject to such 
conditions, it is required to comply with them. If the Central 
Authority of the Requested State denies assistance, it is 
required to inform the Central Authority of the Requesting 
State of the reasons for the denial.
    Article 4 prescribes the form and content of written 
requests under the Treaty, specifying in detail the information 
required in each request. The article permits 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 is to be in 
the language of the Requesting State accompanied by a 
translation in the language of the Requested State unless 
otherwise agreed.
    Article 5 concerns the execution of requests. Article 5(1) 
requires the Central Authority of the Requested State to 
execute the request promptly or, when appropriate, to transmit 
it to the authority having jurisdiction to do so. It provides 
that the competent authorities of the Requested State shall do 
everything in their power to execute a request, and that the 
competent judicial and other authorities of the Requested State 
shall 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 Requesting 
State in the execution of a request for assistance in the 
Requested State.
    Under Article 5(3), requests are to be executed in 
accordance with the internal 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 they 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 make 
execution subject to conditions determined to be necessary 
after consultations with the Central Authority of the 
Requesting State. 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 Central Authority 
of the Requesting State if the request cannot be executed 
without breaching confidentiality. This provides the Requesting 
State an opportunity to decide whether to pursue the request or 
to withdraw it in order to maintain confidentiality.
    Article 5(6) and (7) additionally require the Requested 
State's Central Authority to respond to reasonable inquiries 
concerning progress toward executing a request; to inform the 
Requesting State's Central Authority promptly of the outcome of 
its execution; and, if execution 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 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 allowances and expenses related to 
travel of persons pursuant to Articles 10 and 11. If, during 
the execution of a request, it becomes apparent that 
fulfillment of the request will entail expenses of an 
extraordinary nature, the Central Authorities must consult to 
determine the terms and conditions under which execution may 
continue.
    Article 7 requires the Requesting State to comply with any 
request by the Central Authority of the Requested State that 
any information or evidence obtained under the Treaty not be 
used in any investigation, prosecution, or proceeding other 
than that described in the request without the prior consent of 
the Central Authority of the Requested State. Further, if the 
Requested State's Central Authority requests that information 
or evidence furnished under this Treaty be kept confidential or 
be used in accordance with specified conditions, and the 
Requesting State accepts the information or evidence subject to 
such conditions, it must use its best efforts to comply with 
them.
    Article 7(3) provides that nothing in Article 7 precludes 
the use or disclosure of information 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 use or disclosure. Finally, Article 7 provides that 
once information or evidence is made public in the Requesting 
State in a manner consistent with these provisions, it may 
thereafter be used for any purpose.
    Article 8 describes the procedures for obtaining testimony 
or evidence in the Requested State. Article 8(1) provides that 
a person in the Requested State from whom testimony or evidence 
is requested pursuant to the Treaty shall be compelled, if 
necessary, to appear and testify or produce items, including 
documents and records and 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 (such as the 
accused, counsel for the accused, or other interested persons) 
and to permit them to question the person giving the testimony 
or evidence. In the event that a person whose testimony or 
evidence is being taken asserts a claim of immunity, 
incapacity, or privilege under the laws of the Requested State, 
the claim is to be resolved in accordance with the laws of the 
Requested State. However, if a claim of immunity, incapacity, 
or privilege is made 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 of evidence in 
the Requesting State, Article 8(5) provides a mechanism for 
authenticating evidence that is produced pursuant to this 
article or that is the subject of testimony taken in the 
Requested State, using Form A appended to the Treaty, as well 
as certifications of the absence or nonexistence of such 
evidence using Form B.
    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. Under Article 9(2), the Requested State may 
also provide copies of any documents, records, or information 
that are in the possession of a government department or agency 
in that State, but which are 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 discretion to deny such requests entirely 
or in part. Article 9 also provides that no further 
authentication shall be necessary for admissibility into 
evidence in the Requesting State of such official records where 
the official in charge of maintaining them authenticates the 
records through the use of Form C appended to the Treaty. 
Certification on Form D of the absence or nonexistence of such 
records by an official responsible for maintaining similar 
records shall also be admissible.
    Article 10 provides a mechanism for the Requesting State to 
invite the voluntary appearance outside the Requested State of 
a person located in the Requested State, indicating the extent 
to which the expenses will be paid. The Requested State is to 
inform the Central Authority of the Requesting State promptly 
of the person's response. 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 will 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 the 
person, having left the Requesting State, voluntarily returns. 
The Central Authority of the Requesting State may, in its 
discretion, 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 in the custody of either 
State, whose presence for purposes of assistance under the 
Treaty is sought, may be transferred from the custody of one 
State to the custody of the other State provided that the 
person concerned consents and both Central Authorities agree. 
For example, a witness incarcerated in the Requested State may 
be transferred to the Requesting State to have his deposition 
taken in the presence of the defendant, or a defendant in the 
Requesting State may be transferred for purposes of attending a 
witness deposition in the Requested State. Article 11(3) 
further establishes both the express authority and the 
obligation of the receiving State to keep the person 
transferred in custody unless otherwise authorized by the 
sending State; to return the person transferred to the custody 
of the sending State as soon as circumstances permit or as 
otherwise agreed by both Central Authorities; and not to 
require the sending State to initiate extradition or any other 
proceedings for return of the person transferred. Article 11(3) 
also provides that the person transferred receives credit for 
time served in the custody of the receiving State. Where the 
receiving State is a third State, the Requesting State must 
make all arrangements necessary to meet the requirements of 
this paragraph.
    Article 12 provides that the Requested State may, subject 
to any constitutional limitations, 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 by the Requesting State in an investigation, 
prosecution or proceeding. It also establishes the authority 
and obligation of the Requested State to keep the person in 
custody during transit.
    Article 13 obligates the Requested State to use its best 
efforts to ascertain the location or identity in the Requested 
State of persons or items specified in a request.
    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 for assistance made by the Requesting 
State under the Treaty. A request for the service of a document 
requring a person to appear before an authority in the 
Requesting State must be transmitted a reasonable time before 
the scheduledd appearance. Proof of service is to be provided 
by the Requested State in the manner specified in the request.
    Article 15 obligates the Requested State, to the extent 
permitted by its law, to execute requests for search, seizure, 
and transfer of any item to the Requesting State if the request 
includes the information justifying such action under the laws 
of the Requested State. It provides that, upon request, every 
official who has custody of a seized item must certify, through 
use of Form E appended to the Treaty, the identity of the item, 
the continuity of custody, and any changes in condition. No 
further certification is required and the Form will be 
admissible in evidence in the Requesting State. The article 
further provides that the Central Authority of the Requested 
State may impose upon the Requesting State terms and conditions 
deemed necessary to protect third-party interests in items to 
be transferred.
    Article 16 provides that the Central Authority of the 
Requested State may require its counterpart in the Requesting 
State to return any items furnished to it in execution of a 
request under the Treaty as soon as possible.
    Article 17 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, it may so inform 
the Central Authority of the other Party. If the Party 
receiving such information has jurisdiction in this regard, it 
may present this information to its authorities for a 
determination whether any action is appropriate and in 
accordance with the laws of their country. The Central 
Authority of the Party receiving such information is required 
to inform the Central Authority of the Party that provided the 
information of any action taken. Article 17 also obligates the 
Parties to assist each other to the extent permitted by their 
respective laws in proceedings relating to forfeiture of the 
proceeds and instrumentalities of offenses, restitution to the 
victims of crime, and the collection of fines imposed as 
sentences in criminal prosecutions. Article 17(3) obligates the 
Party having custody over proceeds or instrumentalities of 
offenses to dispose of them in accordance with its laws. Either 
Party may transfer to the other Party all or part of such 
assets, or the proceeds of their sale, 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, 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 that they may agree upon such 
practical measures as may be necessary to facilitate the 
Treaty's implementation. Article 19 further provides that any 
dispute arising out of the interpretation, application or 
implementation of the Treaty is to be resolved by the Central 
Authorities, or failing their agreement, through diplomatic 
channels.
    Article 20 provides that the Treaty shall be subject to 
ratification and shall enter into force upon exchange of 
instruments of ratification, which shall be exchanged as soon 
as possible. It further provides that the Treaty shall apply to 
any request presented after the date of the Treaty's entry into 
force whether the relevant acts or omissions occurred prior to 
or after that date. Either Party may terminate the Treaty by 
written notice to the other Party, termination to take effect 
six months 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,
                                                 Madeline Albright.