Treaty with Liechtenstein on Mutual Legal Assistance in Criminal MattersSenate Consideration of Treaty Document 107-16
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[Senate Treaty Document 107-16] [From the U.S. Government Publishing Office] 107th Congress 2d Session SENATE Treaty Doc. 107-16 _______________________________________________________________________ TREATY WITH LIECHTENSTEIN 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 PRINCIPALITY OF LIECHTENSTEIN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT VADUZ ON JULY 8, 2002 September 5, 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 LETTER OF TRANSMITTAL ---------- The White House, September 5, 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 Principality of Liechtenstein on Mutual Legal Assistance in Criminal Matters, signed at Vaduz on July 8, 2002. 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 ---------- The Secretary of State, Washington, August 14, 2002. The President, The White House. The President: I have the honor to submit to you the Treaty Between the United States of America and the Principality of Liechtenstein on Mutual Legal Assistance in Criminal Matters (``the Treaty''), and a related exchange of notes, both signed at Vaduz on July 8, 2002. 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 other treaties and all of the essential provisions sought by the United States. It is accompanied by an exchange of notes (described below), which relates to Article 1 of the Treaty. The Treaty will enhance our ability to investigate and prosecute a variety of offenses, including tax offenses of particular interest to the United States law enforcement community. 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 taking the testimony or statements of persons; providing items; locating or identifying persons; 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 to the victims of crime 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 criminal offenses, but also in related forfeiture proceedings. Article 1(3) states that assistance is to be provided without regard to whether the conduct involved would constitute an offense under the laws of the Requested State, except that the Requested State may refuse to comply in whole or in part with a request to the extent that the conduct would not constitute an offense under its laws and the execution of the request would require a court order for search and seizure or other coercive measures. Article 1(4) provides that, with respect to offenses concerning taxation, the Requested State shall provide assistance where the conduct described constitutes tax fraud, defined as tax evasion committed by means of the intentional use of false, falsified or incorrect business records or other documents, provided the tax due, either as an absolute amount or in relation to an annual amount due, is substantial. This paragraph also provides that the Requested State shall not refuse assistance because its law does not impose the same kind of tax, or does not contain the same kind of tax regulations, as the law of the Requesting State. This Treaty, like the MLAT with Luxembourg, is accompanied by an exchange of diplomatic notes that further elaborate the definition of tax fraud under Article 1(4). The exchange of notes constitutes an integral part of the Treaty. In the exchange of notes the Parties agreed that any of five different types of intentional conduct would create a presumption that the conduct described in a request for assistance constitutes ``tax fraud'' and therefore would trigger assistance under Article 1(4). These are: (1) preparing, signing, or filing any document that is required by law to be filed to evidence to the tax authorities the amount of taxable income, serves as the basis for an assessment of tax, and is false as to any matter necessary to the assessment of such tax; (2) keeping a double set of books; (3) making false entries or alterations or false invoices or documents; (4) destroying books or records; or (5) concealing assets or covering up sources of income by the means described in Article 1(4). The exchange of notes also expresses the Parties' agreement that the term ``document'' includes specific tax forms used by a Party to evidence the bookkeeping of a business (balance sheets, and income and expense accounts), and specifically that U.S. Internal Revenue Service Form 1120, relating to corporate income tax returns, and Schedule C of Form 1040, relating to profit or loss from sole proprietorships, constitute such documents. Other forms may subsequently be added to this list by means of a subsequent exchange of diplomatic notes. During the course of negotiations, the U.S. delegation developed and presented to the delegation of Liechtenstein a series of hypothetical cases arising under U.S. tax law for which assistance from Liechtenstein should be provided. Based upon the replies provided by Liechtenstein, the U.S. Government determined that Article 1(4) and the related exchange of notes established a sufficiently broad scope for coverage of criminal tax matters. Article 1(5) 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 and defines Central Authorities for purposes of the Treaty. For the United States, the Central Authority is theAttorney General or a person designated by the Attorney General. For Liechtenstein, the Central Authority is the Ministry of Justice or its designee. The article provides that the Central Authorities are to 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 it relates to a military offense that would not be an offense under ordinary criminal law, if its execution would prejudice the security or other essential public interests of the Requested State, if it is not made in conformity with the Treaty, or if it relates to a political offense (a term the meaning of which is well-defined in the extradition context and which is expected to be defined on that basis in connection with mutual assistance). 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 these conditions, it is required to 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 emergency situations, but would require written confirmation within ten days thereafter unless the Central Authority of the Requested State agrees otherwise. Article 5 concerns execution of requests. Article 5(1) requires the Central Authority of the Requested State to execute the request promptly or, where appropriate, to transmit it to the authority having jurisdiction to do so. It provides that the competent authorities of the Requested State must do everything in their power to execute a request, and that judicial and other authorities of the Requested State shall 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 arrangements for representation of the Requesting State in any proceedings arising out of an assistance request. Article 5(3) provides that 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 must be followed except to the extent that those procedures cannot lawfully be followed in the Requested State. Under Article 5(4), if the CentralAuthority of the Requested State determines that execution of a 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 conditions, it must comply with them. Article 5(5) further requires the Requested State, if so requested by the Central Authority of the Requesting State, to use its best efforts to keep confidential a request and its contents. The Central Authority of the Requested State must inform the Requesting State's Central Authority if the request cannot be executed without breaching such confidentiality. This provides the Requesting State an opportunity to decide whether to pursue the request or to withdraw it in order to maintain confidentiality. This article also requires the Requested State's Central Authority to respond to reasonable inquiries by the Requesting State's Central Authority concerning progress toward execution of a particular request; to promptly inform the Requesting State's Central Authority of the outcome of its execution; and, if the request is denied, to inform the Requesting State's Central Authority of the basis for the denial. 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 expert witnesses; costs of translation, interpretation and transcription; and allowances and expenses related to travel of persons pursuant to Articles 10 and 11. The article further provides that, in the event that a request entails extraordinary expenses, consultation between Central Authorities shall occur in order to determine the terms and conditions for continuing execution. Article 7 provides that the Requested State may require the Requesting State not to use information or evidence obtained under the Treaty for any purposes other than those described in the request without the prior consent of the Requested State. Further, if the Requesting State accepts information or evidence under the Treaty, subject to a request by the Requested State's Central Authority that it be kept confidential or be used in accordance with specified terms and conditions, the Requesting State must use its best efforts to comply with the conditions. Once information is made public in the Requesting State in accordance with either of these provisions, it may thereafter be used for any purpose. Nothing in the Article prevents 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 obligedto notify the Requested State in advance of any such proposed disclosure. Article 8 provides that, insofar as the laws of the Requested State allow, a person in the Requested State from whom testimony or evidence is requested shall be compelled, if necessary, to appear and testify or produce records, including documents, information in any form, and other items. 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 8(3) further requires the Requested State to permit persons specified in the request (such as the accused, counsel for the accused, or other interested persons) to be present during execution of the request and to allow 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 Requesting State, Article 8(4) provides that the testimony or evidence is to 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 for authenticating evidence that is produced pursuant to or that is the subject of testimony taken in the Requested State Business records authenticated through the use of Form A, or a certification of the absence or nonexistence of such records made by use of Form B, attached to the Treaty, are to be admissible in evidence in the Requesting State. Article 9 requires the Requested State to provide the Requesting State with copies of publicly available records in the possession of government departments and agencies in the Requested State. The Requested State may also provide copies of records in the possession of a government department or agency, but not publicly available, to the same extent and under the same conditions as it would provide them to its own law enforcement or judicial authorities. The Requested State has the discretion to deny requests for such non-public documents, entirely or in part. Article 9 also provides that no further authentication is necessary for admissibility into evidence in the Requesting State of official records provided pursuant to this Article, where the official in charge of maintaining them authenticates the records through the use of Form C, or certifies the absence of nonexistence of such records by use of Form D, both also appended to the Treaty. Article 10 provides a mechanism for the Requesting State to invite the voluntary appearance in its territory of a person located in the Requested State. The Requesting State must indicate the extent to which the expenses will be paid and theCentral Authority of the Requested State must promptly inform its counterpart in the Requesting State of the person's response. Article 10(3) requires the Central Authority of the Requesting State to inform the Central Authority of the Requested State whether a decision has been made by the relevant competent authorities that a person appearing in the Requesting State pursuant to this Article is not subject to service of process or detention or any restriction of personal liberty by reason of any acts or convictions that preceded his 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 if the person has left the Requesting State and voluntarily returns to it. An extension of up to fifteen days for good cause may be granted by the Requesting State's competent authorities in their discretion. Article 11 provides for the temporary transfer of a person in custody in the Requested State to the Requesting State or to 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 to have his testimony taken in the presence of the defendant), provided that the person in question consents and the Central Authorities of both States agree. The Article also provides for the voluntary transfer of a person in the custody of the Requesting State to the Requested State for purposes of assistance 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 State. The person transferred must be returned to the custody of the sending State as soon as circumstances permit or as otherwise agreed by the Central Authorities, and the sending State is not required to initiate extradition proceedings for the return of the person transferred. The person transferred also receives credit for time served in the custody of the receiving State. Article 12 provides that the Requested State may authorize the transit through its territory of a person whose appearance in an investigation, prosecution or proceeding has been sought by the Requesting State, and that the Requested State shall be obliged to keep the person in custody during such transit. Article 13 requires the Requested State to use its best efforts to ascertain the location or identity of persons or items specified in the 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 any request for assistance 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. A person who is a national of the Requested State, or who has equal status thereto, is not subject to sanctions for failure to answer a summons to appear in the Requesting State as a witness or expert. Liechtenstein has a substantial number of permanent residents deemed to have equal status to its nationals. 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 Requesting State may request that 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 custody, and the integrity of its condition. No further certification is to be required and the certificate is admissible in evidence in the Requesting State. Article 15(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 16 provides that the Central Authority of the Requested State may require its counterpart in the Requesting State to return items furnished to it in execution of a request. Article 17(1) provides that, if the Central Authority of one Party becomes aware that proceeds or instrumentalities of offenses that may be forfeitable or otherwise subject to seizure are located in the other Party, it may so inform the Central Authority of the other 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 Party receiving such information is required to inform the Central Authority of the Party that provided the information of any action taken. Article 17(2) obligates the Parties to assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the 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 Party having custody over proceeds or instrumentalities of offenses is required to dispose of them in accordance with its laws. Either Party may share all or part of such assets, or the proceeds of their sale, with the other Party, to the extent permitted 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 do not prevent either Party from granting assistance to the other 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 may agree upon practical measures to facilitate the Treaty's implementation. Article 20 provides that the Treaty is subject to ratification and that the instruments are to be exchanged as soon as possible. The Treaty then enters into force on the first day of the second month following the month of the exchange of instruments. Article 19(3) provides that the Treaty applies to requests presented after the date of its entry into force, whether the relevant acts or omissions occurred prior to or after that date. Article 19(4) further provides that either State may terminate the Treaty by written notice to the other State, termination to be effective six months after the date of such notice. 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.