Treaty with Cyprus on Mutual Legal Assistance in Criminal MattersSenate Consideration of Treaty Document 106-35
Treaty DocumentShow Overview
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.