Treaty with Ireland on Mutual Legal Assistance in Criminal MattersSenate Consideration of Treaty Document 107-9
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[Senate Treaty Document 107-9] [From the U.S. Government Publishing Office] 107th Congress Treaty Doc. SENATE 2d Session 107-9 _______________________________________________________________________ TREATY WITH IRELAND 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 IRELAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON JANUARY 18, 2001 July 11, 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 11, 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 Agreement between the Government of the United States of America and the Government of Ireland on Mutual Legal Assistance in Criminal Matters, signed at Washington on January 18, 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, 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: taking the testimony or statements of persons; providing documents, records, and articles of evidence; locating or identifying persons; serving documents; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; identifying, tracing, freezing, seizing, and forfeiting the proceeds and instrumentalities of crime and assistance in related proceedings; and such other assistance as may be agreed. 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 TRANSMITTAL ---------- Department of State, Washington, June 7, 2002. The President, The White House. 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 Ireland on Mutual Legal Assistance in Criminal Matters (``the Treaty''), signed at Washington on January 18, 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. The Treaty with the Government of Ireland contains all essential provisions sought by the United States, and will enhance our ability to investigate and prosecute a variety of offenses, including terrorism, violent crimes, drug trafficking, and fraud and other white-collar crimes. 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 new legislation. Article 1 sets forth a non-exhaustive list of the major types of assistance to be provided under theTreaty, including taking the testimony or statements of persons; providing documents, records and articles of evidence; locating or identifying persons; serving documents; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; identifying, tracing, freezing, seizing, and forfeiting the proceeds and instrumentalities of crime and assistance in related proceedings; and such other assistance as may be agreed between the two Central Authorities. The scope of the Treaty includes not only investigation, prosecution and prevention of criminal offenses, but also proceedings related to criminal matters, which may be civil or administrative in nature. Article 1(3) states that, except when required by the laws of the Requested Party, assistance shall be provided without regard to whether the conduct involved would constitute an offense under the laws of the Requested Party. The exception is intended only to recognize that Irish law requires a different method to execute a request on the rare occasions when dual criminality does not exist, i.e. the offense is not punishable in both jurisdictions. 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 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 Ireland, the Central Authority is the Minister for Justice, Equality and Law Reform or a person designated by the Minister. The article provides that the Central Authorities shall communicate directly with one another for the purposes of the Treaty. Article 3 sets forth the circumstances under which a Requested Party's Central Authority may deny assistance under the Treaty. A request may be denied if the Requested Party is of the opinion that the request, if granted, would impair its sovereignty, security or other essential interests, or would be contrary to important public policy; or if the request relates to an offender who, if proceeded against the law of the Requested Party for the offense for which assistance is requested, would be entitled to be discharged on the grounds of a previous acquittal or conviction. A request may also be denied if it is not made in conformity with the Treaty or relates to an offense that is regarded by the Central Authority of the Requested Party as an offense of a political character (a term the meaning of which is well-defined in the extradition context and expected to be defined on that basis in connection with mutual assistance) or as an offense under its military law that is not also an offense under its ordinary criminal law.. Before denying assistance under Article 3, the Central Authority of the Requested Party is required to consult with its counterpart in the Requesting Party to consider whether assistance can be given subject to such conditions as the Central Authority of the Requested Party deems necessary. If the Requesting Party accepts assistance subject to these conditions, it must comply with them. 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 Party agrees otherwise. Article 5 concerns execution of requests. Article 5(1) requires the Central Authority of the Requested Party to take whatever steps it deems necessary to execute requests promptly, as empowered by the Treaty or national law, or in accordance with national practice. It provides that Courts of the Requested Party shall have the authority to issue subpoenas, search warrants, or other orders necessary to execute the request. Pursuant to Article 5(2), the Central Authority of the Requested Party must make all necessary arrangements for representation in its territory of the Requesting Party in any proceedings arising out of an assistance request. Under Article 5(3), the method of execution specified in the request shall be followed except to the extent that it is incompatible with the laws and practices of the Requested Party.Under Article 5(4), if the Central Authority of the Requested Party determines that execution of the request would interfere with an ongoing criminal investigation, prosecution, or proceeding under the laws of that Party, or prejudice the safety of any person, it may postpone execution or make execution subject to conditions determined to be necessary after consultations with the Central Authority of the Requesting Party. If the Requesting Party accepts assistance subject to conditions, it must comply with them. Article 5(5) requires the Central Authority of the Requested Party to facilitate the presence in the execution of the request of persons specified in it, in accordance with its national law and practice. Article 5(6) further requires the Requested Party, upon request, to keep confidential any information which might indicate that a request has been made or responded to and to inform the Requesting Party if the request cannot be executed without breaching confidentiality so that the Requesting party can determine the extent to which it wishes the request to be executed. This article also requires the Requested Party's Central Authority to respond to reasonable inquiries by the Requesting Party's Central Authority concerning progress toward execution of a particular request and to inform the latter of any circumstances that are likely to cause a significant delay in responding to the request, the outcome of a request's execution, and the basis for the denial of any request. The article authorizes the Central Authority of the Requested Party to ask the Requesting Party's Central Authority to provide information to enable execution of the request or the undertaking of any steps necessary under its laws and practices to give effect to the request and requires the Central Authority of the Requesting Party to promptly inform the Requested Party's Central Authority of any circumstances that make it inappropriate to proceed with the execution of the request or which require modification of the action requested. Article 6 apportions between the two States the costs incurred in executing a request. It provides that the Requested Party must pay all costs relating to the execution of a request, including the costs of representation, except for the following items to be paid by the Requesting Party: 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. If, during the execution of a request, it becomes apparent that complete execution will entail expenses of an extraordinary nature, the Central Authorities are to consult to determine the terms and conditions under which execution may continue. Article 7 requires the Requesting Party not to use or disclose information or evidence obtained under the Treaty for any purposes other than those stated in the request without the prior consent of the Requested Party. Article 7(2), however, states that nothing in the Article shall preclude the use or disclosure of information to the extent that there is an obligation to do so under the Constitution of the Requesting Party in a criminal prosecution. The Requesting Party is required to notify the Requested Party in advance of any such proposed disclosure. Article 8 provides that a person in the Requested Party from whom testimony or evidence is requested may be compelled, if necessary, to appear and testify or produce items, including documents, records and articles of evidence. The Central Authority of the Requested Party must, upon request, 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 Party in accordance with its laws and practice to permit the presence of persons specified in the request (such as the accused, counsel for the accused, or other interested persons) during the execution of the request and to allow them to question the person giving the testimony or evidence, either directly or through a legal representative qualified to appear before the courts of the Requested Party. 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 Party, Article 8(4) provides that the testimony or evidence shall be taken and theclaim made known to the Central Authority of the Requesting Party for resolution by the authorities of that Party. Finally, in order to ensure admissibility in evidence in the Requesting Party, Article 8(5) provides a mechanism for authenticating evidence that is produced pursuant to or that is the subject of testimony taken under this Article (or certifying the absence or nonexistence of such evidence) through the use of Forms A and B appended to the Treaty or pursuant to such other form or manner as may be prescribed from time to time by either Central Authority. Article 9 requires the Requested Party to provide the Requesting Party with copies of publicly available records in the possession of government departments and agencies in the Requested Party. The Requested Party may also provide copies of any documents, records or information in the possession of a government department or agency, but not publicly available, to the same extent and under the same conditions as such copies would be available to its own law enforcement or judicial authorities. The Requested Party has the discretion to deny requests for such non-public documents, entirely or in part. Article 9 also provides that no further authentication shall be necessary for admissibility into evidence in the Requesting Party of official records provided pursuant to this Article if, upon request, the records are authenticated under the provisions of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, or by an official competent to do so through the use of Form C appended to the Treaty, or pursuant to such other form or manner as may be prescribed from time to time by either Central Authority. The absence or nonexistence of such records is, upon request, to be certified by the use of Form D, which must also be admissible in evidence in the Requesting Party. Article 10(1) provides a mechanism for the Requesting Party to invite the voluntary appearance in its territory of a person located in the Requested Party. The Requesting Party must indicate the extent to which the expenses will be paid. Article 10(2) provides that the Central Authority of the Requesting Party has the discretion to determine that a person appearing in the Requesting Party pursuant to this Article shall 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 Party. Under Article 10(3), any safe conduct provided for by this Article ceases seven days after the Central Authority of the Requesting Party has notified the Central Authority of the Requested Party that the person's presence is no longer required, or if the person has left the Requesting Party and voluntarily returns to it. The Requesting Party's Central Authority has the discretion to extend the period for up to fifteen days for good cause. Article 11 provides for temporary transfer of a person in custody in one Party to the other Party for purposes of assistance under the Treaty, on the condition that the person in question and the Central Authorities of both parties consent. Under this Article, for example, a witness incarcerated in the Requested Party may be transferred to the Requesting Party to have his deposition taken in the presence of the defendant or a defendant in the Requesting Party may be transferred for purposes of attending a witness deposition in the Requested Party. Article 11(2) further establishes both the express authority and the obligation of the receiving Party to maintain the person transferred in custody unless otherwise authorized by the sending Party. The person transferred must be returned to the custody of the sending Party as soon as circumstances permit and in any event no later than the date upon which the person would have been released from custody in the territory of the sending Party, unless otherwise agreed by the Central Authorities and the person transferred. The receiving Party may not require the sending Party to initiate extradition proceedings for return of the person transferred. The person transferred also receives credit for time served in the custody of the receiving Party. Article 12 requires the Requested Party to use its best efforts to ascertain the location or identity of persons or items specified in the request. Article 13 obligates the Requested Party 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. Article 13(2) states that service under this Article shall not impose any obligation under the law of the Requested Party to comply withit. A request for service of a document requiring a person to appear in the Requesting Party must be transmitted a reasonable time before the scheduled appearance. Proof of service is to be provided in the manner specified in the request. Article 14 obligates the Requested Party to execute requests for search, seizure, and delivery of any item to the Requesting Party if the request includes the information justifying such action under the laws of the Requested Party and it is carried out in accordance with the laws of that Party. Although dual criminality for exercise of requests is not generally provided for in the Treaty, Article 14(2) states that the request may be refused if it relates to conduct in respect of which powers of search and seizure would not be exercisable in the territory of the Requested Party in similar circumstances. This recognizes that Irish law will require a different method to execute a request on the rare occasion that dual criminality does not exist. The Article requires, upon request, that every official who has custody of a seized item must certify, through the use of Form E appended to the Treaty, the continuity of custody, the identify of the item, and the integrity of its condition. No further certification is to be required and the certificate must be admissible in evidence in the Requesting Party. Certification may also be provided in any other form or manner as may be prescribed from time to time by either Central Authority. Article 14(4) further provides that the Central Authority of the Requested Party may impose upon the Requesting Party terms and conditions deemed necessary to protect third party interests in the item to be transferred. Article 15 requires Central Authority of the Requesting Party to return items, including documents, records, or articles of evidence furnished to it in the execution of a request as soon as possible unless the Central Authority of the Requested Party waives their return. Article 16(1) provides that, if the Central Authority of one Contracting 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 that 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 in accordance with the laws of that country. The Central Authority of the Party receiving such information is required to inform the Central Authority that provided the information of any action taken. Article 16(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, which may include action to temporarily freeze proceeds and instrumentalities pending further proceedings. Under Article 16(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 17 provides that assistance and procedures provided in the Treaty do 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 18 provides that the Central Authorities must consult, at times mutually agreed, to promote the most effective use of the Treaty and may agree upon such practical measures as may be necessary to facilitate the Treaty's implementation. Article 19 provides that the Treaty is subject to ratification and the instruments of ratification are to be exchanged as soon as possible, whereupon the Treaty enters into force. 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 Party may terminate the Treaty by written notice to the other Party, termination to take effect six months after the date of notification. Ongoing proceedings at the time of termination must nonetheless be completed in accordance with the provisions of the Treaty. 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, Colin L. Powell.