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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.