Treaty with Sweden on Mutual Legal Assistance in Criminal MattersSenate Consideration of Treaty Document 107-12
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[Senate Treaty Document 107-12] [From the U.S. Government Printing Office] 107th Congress Treaty Doc. SENATE 2d Session 107-12 _______________________________________________________________________ TREATY WITH SWEDEN 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 KINGDOM OF SWEDEN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT STOCKHOLM ON DECEMBER 17, 2001 July 15, 2002.--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 99-118 WASHINGTON : 2002 LETTER OF TRANSMITTAL ---------- The White House, July 15, 2002. 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 Kingdom of Sweden on Mutual Legal Assistance in Criminal Matters, signed at Stockholm on December 17, 2001. 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. The Treaty should be an effective tool to assist in the prosecution of a wide variety of crimes, including terrorism, drug trafficking, and fraud and other white-collar 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: locating or identifying persons or items; serving documents; taking the testimony or statements of persons; transferring persons in custody for testimony or other purposes; providing documents, records, and items; executing requests for searches and seizures; assisting in proceedings related to immobilization and forfeiture of assets and restitution; initiating criminal proceedings in the Requested State; and any other form of assistance consistent with the purposes of this Treaty and not prohibited by the laws of the State from whom the assistance is requested. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification. George W. Bush. LETTER OF SUBMITTAL ---------- Department of State, Washington, June 10, 2002. The President, The White House. Mr. 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 Kingdom of Sweden on Mutual Legal Assistance in Criminal Matters (``the Treaty''), signed at Stockholm on December 17, 2001. 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 between the United States and 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 terrorism and drug-trafficking offenses, of particular interest of the U.S. law enforcement community. It will also help expand the coverage of our law enforcement relationships across Europe. The Treaty is designed to be self- executing and will not require implementing legislation. Article 1 sets out the scope of assistance available under the Treaty. Article 1(2) contains a non-exhaustive list of the major types of assistance to be provided under the Treaty, including locating or identifying persons or items; serving documents; taking the testimony or statements of persons; transferring persons in custody for testimony or other purposes; providing documents, records and items; executing requests for searches and seizures; assisting in proceedings related to immobilization and forfeiture of assets and restitution; initiating criminal proceedings in the Requested State; and any other form of assistance consistent with purposes of this Treaty and not prohibited by the laws of the Requested State. The scope of the Treaty includes not only assistance provided in connection with the investigation and prosecution of offenses, but also in proceedings related to the 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 involved would constitute an offense under the laws of the Requested State. However, before executing a request that requires transfer of persons in custody pursuant to Article 12, search and seizure pursuant to Article 16, or assistance in forfeiture proceedings pursuant to Article 18, the Requested State may require that the subject offense by punishable under its pedal or administrative laws. Article 1(4) states explicitly that the Treaty does not create 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 which, for the United States is the Attorney General or a person designated by a Attorney General and for Sweden is the Ministry of Justice. Article 2(3) provides that the Central Authority shall make requests on behalf of authorities that by law are responsible for investigations, prosecutions, or proceedings related to criminal matters and lists such authorities for each State. The Article also provides that the Central Authorities are to communicate directly with one another for 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: (a) it relates to an offense under military law that would not be an offense under ordinary criminal law; (b) it relates to a political offense (a term the meaning of which is well-defined in the extradition context and expected to the defined on that basis in connection with mutual assistance); (c) it relates to an offense for which the penalty in the Requesting State is deprivation of liberty for a period of a year or less; (d) its execution would prejudice the security or other essential interests (``ordre public'') of the Requested State; or (e) it is not made in conformity with the Treaty. 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 ofthe Requested State deems necessary. If the Requesting State accepts assistance subject to such conditions, it must comply with them. 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 written requests under the Treaty, specifying in detail the information required in each request. A request for assistance must be in writing, except that a request may be accepted in another form in urgent situations but would require written confirmation within ten days unless the Central Authority of the Requested State agrees otherwise. The request must be in the language of the Requested State or accompanied by a translation into that language unless agreed otherwise. Article 5 concerns 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 must do everything in their power to execute a request, and that the courts of the Requested State have authority 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 and meet the costs of representation of the Requesting State in the Requested State in any proceedings arising out of an assistance request. Article 5(3) provides that requests are to be executed in accordance with the laws of the Requested State, except to the extent the Treaty provides otherwise. The method of execution specified in the request is to be followed except insofar as it is prohibited by the laws of 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, make execution subject to conditions determined to be necessary. If the Requesting State accepts assistance subject to such conditions, it must comply with them. Article 5 additionally requires the Requested State's Central Authority to respond to reasonable inquiries concerning progress toward executing a request; to promptly inform the Requesting State's Central Authority of the outcome of its execution; and, if the request cannot successfully be executed, 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 must pay all costs relating to the execution of a request, 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 either in the Requested State for the convenience of the Requesting State or pursuant to Articles 11, 12 or 13. If, during the execution of a request, it becomes apparent that complete execution will entrail expenses of an extraordinary nature, the Central Authorities must consult to determine the terms and conditions under which execution may continue. Under Article 7, the Requested State may make the execution of a request dependent on the condition that, without the prior consent of its Central Authority, the information or evidence obtained will not be used or transmitted by the authorities of the Requesting State for investigations or proceedings other than those specified in the request. Article 7(2) provides that nothing in the Article precludes the disclosure or use of information or evidence in a criminal proceeding to the extent that there is an obligation to do so under the constitution of the Requesting State. The Requesting State must notify the Requested State in advance of any such use or disclosure. Information or evidence that has been made public in the Requesting State in the normal course of the proceeding for which it was provided or has been disclosed in accordance with Article 7(2) may thereafter be used for any purpose. Article 8 requires the Requested State, if so requested by the Central Authority of the Requesting State, to use its best efforts to keep confidential arequest and its contents. The Central Authority of the Requested State must inform the Central Authority of the Requesting State 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 Further, under Article 8(2), if the Requested State's Central Authority requests that information or evidence furnished under this Treaty be kept confidential or be disclosed only subject to specified conditions, and the Requesting State accepts the information or evidence subject to such conditions, the Requesting State must use its best efforts to comply with them. Article 9 provides that a person in the Requested State from whom evidence is requested pursuant to the Treaty must be compelled, if necessary, to appear and be questioned or give testimony or produce items, including, but not limited to, documents, records, and articles of evidence. A person who gives false testimony, or makes a false certification during the execution of a request, is subject to prosecution and punishment in the Requested State in accordance with the criminal laws of that State. Upon request, the Central Authority of the Requested State is required to furnish information in advance about the date and place of the taking of testimony or evidence pursuant to this Article. Article 9(3) further requires the Requested State to permit the presence of persons designated in the request (such as the accused, counsel for the accused, or other interested persons) during execution of the request and to allow them to question or present questions to be posed to the person giving the testimony or evidence. Pursuant to Article 9(4), a person giving testimony or evidence may assert such claims of immunity, incapacity or privilege as are available under the laws of either State. If a person asserts such a claim under the laws of the Requesting State, the Requested State must rely on the representation of the Central Authority of the Requesting State as evidence of the existence of the immunity, incapacity, or privilege. Where the person's testimony or evidence has been taken in the Requested State, that person may reassert the claim for consideration by the judicial authorities in the Requesting State. Article 9(5) provides that the Requesting State may request that items produced in the Requested State pursuant to Article 9 or Article 16, or that are the subject of testimony taken pursuant to Article 9, be authenticated by an attestation and also that the absence of such items be certified by an attestation. Where such items are business records, the attestation may be (a) by a certificate such as Form A or A-1 appended to the Treaty; (b) by a written summary of testimony containing the essential information sought in Form A or A-1, or (c) by a document containing the essential information required by the Requesting State. Records so authenticated in Sweden, or documentation so attesting to the absence of such records, shall be admissible in evidence in the United States as proof of the truth of the matters set forth therein. Article 10 requires the Requested State to provide the Requesting State with copies of publicly available records in the possession of public authorities in the Requested State. The Requested State may also provide copies of any records, including documents or information in any form, in the possession of public authorities in that State, but not publicly available, to the same extent and under the same conditions as such copies would be available to its own public authorities. The Requested State has discretion to deny requests for such non-public documents entirely or in part. Article 10 also provides in paragraph 3 that the Requesting State may request that official records produced in the Requested State be authenticated in accordance with the provisions of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, dated 5 October 1961, or by an official charged with maintaining them through the use of Form B appended to the Treaty. No further authentication is necessary. The Requesting State may request that the absence or nonexistence of such records be certified by an attestation through the use of Form B-1 appended to the Treaty. Records so authenticated in Sweden on Form B-1 are to be admissible in evidence in the United States as proof of the truth of the matters set forth therein. Article 11 provides a mechanism for the Requesting State to invite the voluntary appearance in its territory of a person located in the Requested State. The request must indicate the extent to which the invited person's expense will be reimbursed. If the Requested State invites a person in that State to appear before the appropriate authority in the Requesting State, the Requested State's Central Authority must promptly inform its counterpart in the Requesting State of the person's response. Under Article 11(2), the Requesting State may provide funds with respect to the invited person's expenses in advance through its embassy in the Requested State. Article 11(3) provides that an invited person who is not a suspect or defendant may not be prosecuted, detained, or subjected to any restriction of personal liberty in the Requesting State by reason of acts or convictions that preceded that person's departure from the Requested State. An invited person who is a suspect or defendant may not be prosecuted, detained, or subjected to any restriction of personal liberty in the Requesting State by reason of acts or convictions that preceded that person's departure from the Requested State that are not specified in the request. For the United States, safe conduct provided in this paragraph applies only to the extent authorized by its Central Authority and may also extend to the effects of service of process. Any safe conduct so authorized by the Central Authority of the United States shall be communicated to the Central Authority of Sweden. Under 11(4), any safe conduct provided in this Article ceases ten days after the person has been notified that the person's presence is no longer required or when the person, having left the Requesting State, voluntarily returns. Article 12 provides that a person in the custody of either State, whose presence for purposes of assistance under the Treaty is sought, is to be transferred from the custody of one State to that of the other provided that the person concerned consents. In addition, where the presence of a person in the custody of the Requested State is sought in the Requesting State for purposes of assistance under the Treaty (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 to testify in a trial), the consent of the person and Requested State is required. Where a person in the custody of the Requesting State is sought in the Requested State for purposes of assistance under the Treaty (for example, a defendant in the Requesting State may be transferred in order to attend a witness deposition in the Requested State), the person and both States must agree. Article 12(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 State. The receiving State must return the transferred person to the custody of the sending State as soon as circumstances permit unless otherwise agreed by both States, and the receiving State is not to require the sending State to initiate extradition or other proceedings for return of the person transferred. The person transferred also receives credit for service of the sentence imposed in the sending State for time served in the custody of the receiving State. A person transferred pursuant to Article 12 may not, while in the receiving State, be prosecuted, detained, or subjected to any restriction of personal liberty by reason of acts or convictions that preceded his departure from the sending State (other than as provided in Article 12(3)) or be required to testify in proceedings not specified in the request. The safe conduct provided in paragraph 4 ceases when a person released in accordance with paragraph 3 voluntarily remains in the receiving State more than 10 days after being notified that the person's presence is no longer required or when the person, having left the receiving State, voluntarily returns. Finally, under Article 12(6), a person appearing in a trial in the Requesting State under this Article may not be prosecuted in that State on the basis of such testimony except for contempt or perjury. Article 13 provides that the Requested State may authorize the transit through its territory of a person held in custody by a third State whose personal appearance has been requested by the Requesting State to give testimony or evidence or otherwise provide assistance in criminal proceedings or other proceedings related to criminal offenses. It further provides that the Requested State has the authorityand the obligation to keep the person in custody during transit. Article 14 requires the Requested State to use its best efforts to ascertain the location or identity of persons or items specified in a request. Article 15 obligates the Requested State to use its best efforts to effect service of any document relating, in whole or in part, to any request for assistance under the Treaty. A request for the service of a document requiring a person to appear before an authority in the Requesting State must be transmitted in a reasonable time and, with respect to a defendant, no less than 30 days, before the scheduled appearance. Proof of service is to be provided in the manner specified in the request or acceptable under the provisions of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague, November 15, 1965. Article 16 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 Requesting State may request that every official who has custody of a seized item certify, through the use of Form C appended to the Treaty, the identity of the item, the continuity of the item's custody, and the integrity of its condition. No further authentication is required and items so certified in Sweden are to be admissible in evidence in the United States. Article 16(3) further provides that the Central Authority of the Requested State may require that the Requesting State agree to terms and conditions deemed necessary to protect third-party interests in the item to be transferred. Article 17 provides that the Central Authority of the Requested State may require its counterpart in the Requesting State to return any items transferred to it in execution of a request under this Treaty as soon as possible. Article 18(1) provides that, if the Central Authority of one State becomes aware of proceeds or instrumentalities of offenses that are located in the territory of the other State and may be forfeitable or otherwise subject to seizure under the laws of that State, it may so inform the Central authority of that other State. If that other State has jurisdiction, it may present this information to its authorities for a determination as to whether any action is appropriate. These authorities are to issue their decision in accordance with the laws of their country, and are required, through their Central Authority, to report to the other State on the action taken. Article 18 further obligates the States to assist each other to the extent permitted by their respective laws in proceedings and enforcement of judgments relating to the forfeiture of proceeds and instrumentalities of offenses and restitution to victims of crime. This may include identifying, tracing and provisionally freezing, seizing, or otherwise immobilizing proceeds or instrumentalities in support of such proceedings or enforcement of judgments. Upon request, the State that has instituted provisional measures is to secure, to the extent permitted by its laws, an order authorizing the transfer of the property concerned to the jurisdiction of the Requesting State. Proceeds and instrumentalities forfeited to a State pursuant to this Article are to be disposed of by that State according to its laws. Either State may transfer to the other State such property, the proceeds of its sale, or a portion thereof to the other Party, to the extent permitted by their respective laws, upon such terms as they deem appropriate. Article 19 authorizes either State to transmit, through the respective Central Authorities, a request for the purpose of initiating a criminal proceeding before the appropriate authorities of the other State where both States have jurisdiction to investigate or prosecute. The Requested State must consider initiating an investigation or prosecution to the extent appropriate under its laws, practices and procedures and notify the Requesting State of any action taken on the request. Article 20 provides that assistance and procedures provided in the Treaty do not prevent either State from granting assistance to the other State through the provisions of other applicable international agreements or through the provisions of its national laws. The States may also provideassistance pursuant to any bilateral arrangement, agreement or practice that may be applicable. Article 21 provides that the Central Authorities must consult, at times mutually agreed, to promote the most effective use of the Treaty and may agree on such practical measures as may be necessary to facilitate the Treaty's implementation. Article 22 provides that the Treaty is subject to ratification, and is to enter into force on the first day of the second month after the exchange of instruments of ratification, which are to be exchanged as soon as possible. It further provides that either State may terminate the Treaty by written notice to the other State, termination to take effect one year after the date upon which the other State received notice through the diplomatic channel. 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 State and Justice 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, Colin L. Powell.