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[Senate Treaty Document 110-12]
[From the U.S. Government Printing Office]



110th Congress                                              Treaty Doc.
                                 SENATE                     
 2d Session                                                      110-12
_______________________________________________________________________

                                     
 
EXTRADITION TREATY WITH BULGARIA AND AN AGREEMENT ON CERTAIN ASPECTS OF 
       MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS WITH BULGARIA

                               __________

                                MESSAGE

                                  from

                     THEPRESIDENTOFTHEUNITEDSTATES

                              transmitting

   EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF 
      AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF BULGARIA (THE 
``EXTRADITION TREATY'' OR THE ``TREATY'') AND THE AGREEMENT ON CERTAIN 
  ASPECTS OF MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE 
 GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE 
 REPUBLIC OF BULGARIA (THE ``MLA AGREEMENT''), BOTH SIGNED AT SOFIA ON 
                           SEPTEMBER 19, 2007




 January 22, 2008.--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, January 22, 2008.
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 Extradition 
Treaty between the Government of the United States of America 
and the Government of the Republic of Bulgaria (the 
``Extradition Treaty'' or the ``Treaty'') and the Agreement on 
Certain Aspects of Mutual Legal Assistance in Criminal Matters 
between the Government of the United States of America and the 
Government of the Republic of Bulgaria (the ``MLA Agreement''), 
both signed at Sofia on September 19, 2007. I also transmit, 
for the information of the Senate, the report of the Department 
of State with respect to the Extradition Treaty and the MLA 
Agreement.
    The new Extradition Treaty would replace the outdated 
Extradition Treaty between the United States and Bulgaria, 
signed in Sofia on March 19, 1924, and the Supplementary 
Extradition Treaty, signed in Washington countries on mutual 
legal assistance in on June 8, 1934. between the two criminal 
matters. The MLA Agreement is the first agreement Both the 
Extradition Treaty and the MLA Agreement fulfill the 
requirements for bilateral instruments (between the United 
States and each European Union (EU) Member State) that are 
contained in the Extradition and Mutual Legal Assistance 
Agreements between the United States and the EU currently 
before the Senate.
    The Extradition Treaty follows generally the form and 
content of other extradition treaties recently concluded by the 
United States. It would replace an outmoded list of 
extraditable offenses with a modern ``dual criminality'' 
approach, which would enable extradition for such offenses as 
money laundering, and other newer offenses not appearing on the 
list. The Treaty also contains a modernized ``political 
offense'' clause, and it provides that extradition shall not be 
refused based on the nationality of a person sought for any of 
a comprehensive list of serious offenses. Finally, the new 
Treaty incorporates a series of procedural improvements to 
streamline and speed the extradition process.
    Because the United States and Bulgaria do not have a 
bilateral mutual legal assistance treaty in force between them, 
the MLA Agreement is a partial treaty governing only those 
issues regulated by the U.S.-EU Mutual Legal Assistance 
Agreement, specifically: identification of bank information, 
joint investigative teams, video-conferencing, expedited 
transmission of requests, assistance to administrative 
authorities, use limitations, confidentiality, and grounds for 
refusal. This approach is consistent with that taken with the 
other EU Member States (Denmark, Finland, Malta, Portugal, 
Slovak Republic, and Slovenia) with which the United States did 
not have an existing mutual legal assistance treaty.
    I recommend that the Senate give early and favorable 
consideration to the Extradition Treaty and MLA Agreement, 
along with the U.S.-EU Extradition and Mutual Legal Assistance 
Agreements and the other related bilateral instruments between 
the United States and European Union Member States.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                      Washington, November 1, 2007.
The President,
The White House.
    The President: I have the honor to submit to you the 
Extradition Treaty between the Government of the United States 
of America and the Government of the Republic of Bulgaria (the 
``Extradition Treaty'') and the Agreement on Certain Aspects of 
Mutual Legal Assistance in Criminal Matters between the 
Government of the United States of America and the Government 
of the Republic of Bulgaria (the ``MLA Agreement''), both 
signed at Sofia on September 19, 2007. Upon its entry into 
force, the Extradition Treaty would replace the Extradition 
Treaty between the United States and Bulgaria, signed at Sofia 
on March 19, 1924, and the Supplementary Extradition Treaty, 
signed at Washington on June 8, 1934. The MLA Agreement is the 
first treaty between the two countries on mutual legal 
assistance in criminal matters. The Extradition Treaty and the 
MLA Agreement fulfill the requirements of the Agreements on 
Extradition and Mutual Legal Assistance between the United 
States of America and the European Union, both signed on June 
25, 2003, which were transmitted to the Senate on September 28, 
2006, for implementing bilateral instruments between the United 
States and each member state of the European Union. The 
article-by-article analyses of the two instruments are enclosed 
in this report. I recommend that the Extradition Treaty and the 
MLA Agreement be transmitted to the Senate for its advice and 
consent to ratification. Both instruments are self-executing 
and will not require implementing legislation.
    Respectfully submitted,
                                                  Condoleezza Rice.
    Enclosures: Overviews and analyses of the provisions of the 
Extradition Treaty and MLA Agreement.

   Extradition Treaty Between the Government of the United States of 
         America and the Government of the Republic of Bulgaria


                                OVERVIEW

    The Extradition Treaty between the Government of the United 
States of America and the Government of the Republic of 
Bulgaria (the ``Extradition Treaty'' or the ``Treaty'') 
replaces an outdated 1924 extradition treaty, as amended by a 
1934 supplementary treaty. This new Extradition Treaty also 
serves to implement, as between the United States and Bulgaria, 
the provisions of the Agreement on Extradition between the 
United States of America and the European Union (the ``U.S.-EU 
Extradition Agreement''), currently before the Senate.
    The following is an article-by-article description of the 
provisions of the Treaty.
    Article 1 obligates each Party to extradite to the other, 
pursuant to the provisions of the Treaty, persons sought by 
authorities in the Requesting State for prosecution or for 
imposition or execution of a sentence for an extraditable 
offense.
    Article 2, which is taken from Article 4 of the U.S.-EU 
Extradition Agreement, defines extraditable offenses. Article 
2(1) defines an offense as extraditable if the conduct on which 
the offense is based is punishable under the laws in both 
States by deprivation of liberty for a period of more than one 
year or by a more severe penalty. The approach taken in the 
Treaty with respect to extraditable offenses is consistent with 
the modern ``dual criminality'' approach, rather than the old 
``list'' approach, and is one of the key benefits of the new 
Treaty. Use of a ``dual criminality'' clause, rather than the 
categories of offenses listed in the 1924 Treaty, obviates the 
need to renegotiate or supplement the Treaty as additional 
offenses become punishable under the laws in both States and 
ensures a comprehensive coverage of criminal conduct for which 
extradition might be sought.
    Article 2(2) further defines an extraditable offense to 
include an attempt or a conspiracy to commit, or participation 
in the commission of, an extraditable offense. The Parties 
intended to include, under the broad description of 
``participation,'' the offenses of aiding, abetting, 
counseling, or procuring the commission of an offense, as well 
as being an accessory to an offense.
    Additional direction is provided by Article 2(3), which 
provides that an offense shall be an extraditable offense 
regardless of whether: (a) the laws in the Requesting and 
Requested States place the acts or omissions constituting the 
offense within the same category of offenses or describe the 
offense by the same terminology; (b) the offense is one for 
which United States federal law requires the showing of such 
matters as interstate transportation, or use of the mails or of 
other facilities affecting interstate or foreign commerce, such 
matters being jurisdictional only; or (c) in criminal cases 
relating to taxes, customs duties, currency control or 
commodities, the laws of the Requesting and Requested States 
provide for the same kinds of taxes, customs duties or controls 
on currency or on the import or export of the same kinds of 
commodities.
    With regard to offenses committed outside the territory of 
the Requesting State, Article 2(4) provides that extradition 
shall be granted in accordance with the provisions of the 
Treaty if the laws of the Requested State provide for the 
punishment of such conduct committed outside its territory in 
similar circumstances. If the laws of the Requested State do 
not provide for the punishment of such conduct committed 
outside of its territory in similar circumstances, the 
executive authority of the Requested State, in its discretion, 
may proceed with extradition provided that all other 
requirements for extradition are met.
    Article 2(5) provides that, if extradition is granted for 
an extraditable offense, it shall also be granted for any other 
offense specified in the request if the latter offense is 
punishable by one year's deprivation of liberty or less, 
provided that all other requirements for extradition are met.
    Article 2(6) provides that, where the extradition request 
is for enforcement of a sentence, the deprivation of liberty 
remaining to be served must be at least four months.
    Article 3(1) provides that extradition shall not be refused 
based on the nationality of the person sought, for any offense 
falling within a comprehensive list of 30 offenses. The list 
mirrors those offenses for which surrender of nationals by one 
member state of the European Union to another is mandatory 
under the European Arrest Warrant procedure. Under the 
Bulgarian Constitution, a treaty is required in order for 
Bulgarian authorities to surrender a Bulgarian citizen to 
another state for purposes of criminal prosecution. The United 
States is the first country outside the European Union with 
which Bulgaria has agreed to extradite nationals.
    Article 3(2) provides that the Requested State additionally 
may choose to extradite a national for an offense not 
enumerated in paragraph 1. In the event that the Requested 
State denies extradition on the sole basis of nationality with 
respect to an offense not enumerated in Article 3(1), under 
Article 3(3) the Requested State shall, at the request of the 
Requesting State, submit the case to its competent authorities 
for prosecution. Under Article 3(4), the Parties also may agree 
to expand the list in paragraph 1 at a future time.
    Article 4 governs political and military offenses as a 
basis for the denial of extradition. As is customary in 
extradition treaties, Article 4(1) provides that extradition 
shall not be granted if the offense for which extradition is 
requested constitutes a political offense. Article 4(2) 
specifies five categories of offenses that shall not be 
considered to be political offenses:
          (a) an offense for which both Parties have the 
        obligation pursuant to a multilateral international 
        agreement to extradite the person sought or to submit 
        the case to their competent authorities for decision as 
        to prosecution;
          (b) murder, manslaughter, malicious wounding, 
        inflicting grievous bodily harm, assault with intent to 
        cause serious physical injury, and serious sexual 
        assault;
          (c) an offense involving kidnapping, abduction, or 
        any form of unlawful detention, including the taking of 
        a hostage;
          (d) placing, using, threatening to use, or possessing 
        an explosive, incendiary, or destructive device capable 
        of endangering life, causing substantial bodily harm, 
        or causing substantial property damage; and
          (e) a conspiracy or attempt to commit, or 
        participation in the commission of any of the offenses 
        set forth in (a)-(d).
    Article 4(3) provides that, notwithstanding Article 4(2), 
extradition shall not be granted if the executive authority of 
the Requested State determines that the request was politically 
motivated.
    Article 4(4) provides that the executive authority of the 
Requested State may refuse extradition for offenses under 
military law that are not offenses under ordinary criminal law. 
Desertion would be an example of such an offense.
    Article 5(1) precludes extradition of a person who has been 
convicted or discharged from proceedings with final and binding 
effect by the competent authorities in the Requested State for 
the offense for which extradition is requested. Article 5(1) 
adopts a similar formulation to the U.S.-Austria Extradition 
Treaty and clarifies that an acquittal for lack of 
jurisdiction, or a discharge for lack of jurisdiction, is not 
an obstacle to extradition.
    Article 5(2) prohibits the Requested State from denying 
extradition solely based on the existence of criminal 
jurisdiction in the Requested State. Article 5(2) also ensures 
that the Parties will apply their domestic law on prior 
prosecution to give full force and effect to Articles 1 and 3 
of the Treaty. Bulgarian criminal law allows for jurisdiction 
in a wide range of situations, including situations where the 
accused is a Bulgarian national but committed the crime abroad. 
In addition, Bulgarian extradition law permits denial of 
extradition where the offense for which extradition is 
requested falls within the jurisdiction of Bulgarian courts. 
Given these provisions of Bulgarian domestic law, Article 5(2) 
provides important protections to ensure that U.S. extradition 
requests to Bulgaria will not be denied based on Bulgaria's 
ability to assert criminal jurisdiction for the same offense 
for which extradition has been requested.
    Article 6 provides that extradition may be denied if 
prosecution of the offense or execution of the penalty is 
barred by lapse of time under the laws of the Requesting State. 
Acts that would interrupt or suspend the prescriptive period in 
the Requesting State are to be given effect by the Requested 
State.
    Article 7, which is taken from Article 13 of the U.S.-EU 
Extradition Agreement, concerns capital punishment. It provides 
that, when an offense for which extradition is sought is 
punishable by death under the laws in the Requesting State but 
not under the laws in the Requested State, the Requested State 
may grant extradition on the condition that the death penalty 
shall not be imposed on the person sought, or if for procedural 
reasons such condition cannot be complied with by the 
Requesting State, on condition that the death penalty, if 
imposed, shall not be carried out. If the Requesting State 
accepts extradition subject to such a condition, it must comply 
with the condition.
    Article 8 establishes extradition procedures and describes 
the documents required to support a request for extradition. 
Article 8(1), which is taken from Article 5(1) of the U.S.-EU 
Extradition Agreement, provides that all requests for 
extradition must be submitted through the diplomatic channel, 
which shall include transmission through the channel specified 
in Article 11(4) of the Treaty. Article 8(2) specifies the 
documents, information, and legal texts that shall support all 
extradition requests. Article 8(3) provides that a request for 
the extradition of a person who is charged with an offense must 
also be supported by such information as would provide a 
reasonable basis to believe that the person sought committed 
the offense for which extradition is sought. Article 8(4) sets 
forth the items, in addition to those in paragraph 2, that must 
accompany a request for the extradition relating to a person 
who has been found guilty or been convicted of the offense for 
which extradition is sought. It further requires that a request 
for extradition of a person who has been convicted in absentia 
must also be supported by such information as would provide a 
reasonable basis to believe that the person sought committed 
the offense for which extradition is sought, as well as 
information regarding the circumstances under which the person 
was absent from the proceedings. Article 8(5), which is taken 
from Article 8 of the U.S.-EU Extradition Agreement, authorizes 
the Requested State to require the Requesting State to furnish 
additional information to support an extradition request, if 
the Requested State deems it necessary to fulfill the 
requirements of the Treaty. It specifies that such information 
may be requested and supplied directly between the United 
States Department of Justice and the Ministry of Justice of the 
Republic of Bulgaria.
    Article 9, which is taken from Article 5(2) of the U.S.-EU 
Extradition Agreement, concerns admissibility of documents. It 
provides that documents bearing the certificate or seal of 
either the Ministry or Department of Justice or the foreign 
affairs Ministry or Department of the Requesting State shall be 
admissible in extradition proceedings in the Requested State 
without further certification.
    Article 10 provides that all documents submitted under the 
Treaty by the Requesting State shall be translated into the 
language of the Requested State, unless otherwise agreed.
    Article 11 sets forth procedures and describes the 
information that is required for the provisional arrest and 
detention of the person sought pending presentation of the 
formal extradition request and supporting documents. Article 
11(1) provides for provisional arrest and sets forth procedures 
for transmission of a request for provisional arrest. Article 
11(2) specifies the information that must accompany an 
application for provisional arrest. Article 11(3) requires the 
Requested State to notify the Requesting State of the 
disposition of the provisional arrest request and the reasons 
for any inability to proceed with the request.
    Article 11(4) provides that, if the Requested State has not 
received the request for extradition and supporting documents 
within sixty days of the date of provisional arrest, the person 
may be discharged. Consistent with Article 7 of the U.S.-EU 
Extradition Agreement, Article 11(4) provides an alternative 
channel for receipt of extradition requests applicable with 
respect to persons who have been provisionally arrested, 
namely, through transmission of the request to the Embassy of 
the Requested State in the Requesting State. Article 11(5) 
provides that the discharge of a person from custody pursuant 
to Article 11(4) does not prejudice the person's subsequent re-
arrest and extradition if the extradition request and 
supporting documents are delivered at a later date.
    Article 12 specifies the procedures governing a decision on 
the extradition request and the surrender of the person sought. 
It requires the Requested State to promptly notify the 
Requesting State of its decision regarding a request. If the 
request is denied in whole or in part, the Requested State must 
provide an explanation of the reasons for the denial and, upon 
request, copies of pertinent judicial decisions. If extradition 
is granted, the States shall agree on the time and place for 
the surrender of the person sought. If the person sought is not 
removed from the territory of the Requested State within the 
time period prescribed by the law of that State, the person may 
be discharged from custody, and the Requested State, in its 
discretion, may subsequently refuse extradition for the same 
offense(s).
    Article 13 addresses temporary and deferred surrender. 
Under Article 13(1), if a person whose extradition is sought is 
being proceeded against or is serving a sentence in the 
Requested State, the Requested State may defer extradition 
proceedings until the proceedings have been concluded or the 
sentence has been served in the Requested State. Alternatively, 
the Requested State may conduct the extradition proceedings 
and, if extradition is authorized, may choose to temporarily 
surrender the person to the Requesting State for the purpose of 
prosecution.
    Consistent with Article 9 of the U.S.-EU Extradition 
Agreement, Article 13(2) provides that the Requesting State 
shall keep the person so surrendered in custody and shall 
return that person to the Requested State after the conclusion 
of the proceedings against that person, in accordance with 
conditions to be determined by mutual agreement of the States. 
Time spent in custody in the Requesting State pending 
prosecution there may be deducted from the time to be served in 
the Requested State. The return of the person to the Requested 
State shall not require further extradition procedures.
    Article 14, which is taken from Article 10 of the U.S.-EU 
Extradition Agreement, governs the situation in which the 
Requested State receives requests for the extradition or 
surrender of the same person from more than one State, either 
for the same offense or for different offenses. Under Article 
14(1), in the event of requests by more than one State for the 
same person, the executive authority of the Requested State 
shall determine to which State, if any, it will surrender that 
person. Article 14(2) provides that, in the event that Bulgaria 
receives an extradition request from the United States and a 
request for surrender pursuant to the European Arrest Warrant 
for the same person, Bulgaria's competent court of law, or such 
other authority as Bulgaria may designate, shall determine to 
which State, if any, it will surrender the person.
    Article 14(3) provides a non-exclusive list of factors to 
be considered by the Requested State in determining to which 
State to surrender a person who is sought by more than one 
State.
    Article 15 provides that the Requested State may, to the 
extent permitted under its law, seize and surrender to the 
Requesting State all items, including articles, documents, 
evidence, and proceeds, that are connected with the offense in 
respect of which extradition is granted. Such items may be 
surrendered even if the extradition cannot be carried out due 
to the death, disappearance, or escape of the person sought. 
The Requested State may condition the surrender of the items 
upon satisfactory assurances from the Requesting State that the 
property will be returned to the Requested State as soon as 
practicable. The Requested State may also defer the surrender 
of such items if they are needed as evidence in the Requested 
State. The rights of third parties in such items are to be 
respected in accordance with the laws of the Requested State.
    Article 16 sets forth the Rule of Specialty, which, subject 
to specific exceptions set forth in paragraph 3, prohibits a 
person extradited under the Treaty from being detained, tried, 
or punished in the Requesting State except for:
    (a) any offense for which extradition was granted, or a 
differently denominated offense based on the same facts as the 
offense for which extradition was granted, provided such 
offense is extraditable, or is a lesser included offense;
    (b) any offense committed after the extradition of the 
person; or
    (c) any offense for which the competent authority of the 
Requested State consents to the person's detention, trial, or 
punishment.
    Article 16(2) provides that a person extradited under the 
Treaty may not be the subject of onward extradition or 
surrender for any offense committed prior to the extradition to 
the Requesting State unless the Requested State consents. This 
provision would preclude Bulgaria from transferring a fugitive 
surrendered to it by the United States to a third country or 
intemational tribunal without the consent of the United States.
    Article 16(3) sets forth exceptions to the rule of 
specialty. It provides that the restrictions set forth under 
paragraphs 1 and 2 shall not prevent the detention, trial, or 
punishment of an extradited person, or the extradition of a 
person to a third State, if the extradited person either leaves 
the territory of the Requesting State after extradition and 
voluntarily returns to it or fails to leave the territory of 
the Requesting State within twenty-five days of being free to 
do so.
    Consistent with Article 11 of the U.S.-EU Extradition 
Agreement, Article 17 provides for simplified procedures in 
situations where the person sought waives extradition or 
consents to being surrendered. The rule of specialty 
protections do not apply if a person waives extradition. If a 
person consents to surrender, the consent of the person sought 
may include agreement to waiver of protection of the rule of 
specialty.
    Article 18, which is taken from Article 12 of the U.S.-EU 
Extradition Agreement, governs the transit through the 
territory of one State of a person surrendered to the other 
State by a third country, or to a third country by the other 
State.
    Article 19 contains provisions regarding representation and 
the expenses associated with extradition. Specifically, the 
Requested State is required to advise, assist, appear in court 
on behalf of, and represent the interests of the Requesting 
State in any proceedings arising out of a request for 
extradition. Article 19(2) establishes that the Requested State 
bears all expenses incurred in that State in connection with 
the extradition proceedings, except that the Requesting State 
pays expenses related to the translation of extradition 
documents and the transportation of the person surrendered. 
Article 19(3) specifies that neither State shall make any 
pecuniary claim against the other arising out of the arrest, 
detention, examination, or surrender of persons under the 
Treaty.
    Article 20(1) provides that the U.S. Department of Justice 
and the Bulgarian Ministry of Justice may consult in connection 
with the processing of individual cases and in furtherance of 
efficient implementation of the Treaty.
    Article 20(2), which is taken from Article 14 of the U.S.-
EU Extradition Agreement, provides for consultation between the 
Parties when the Requesting State contemplates the submission 
of particularly sensitive information in support of a request 
for extradition, in order to determine the extent to which the 
information can be protected by the Requested State in the 
event of submission.
    Article 21 makes the Treaty applicable to offenses 
committed both before and after the date it enters into force.
    Article 22 contains final clauses addressing the Treaty's 
ratification and entry into force. It provides that the Treaty 
is subject to ratification and that the Treaty shall enter into 
force upon the date of the latter of the diplomatic notes by 
which the Parties notify each other that their internal legal 
requirements for the entering into force of the Treaty have 
been completed. Article 22(3) provides that, upon entry into 
force of the Treaty, the Treaty shall supersede the Treaty of 
Extradition between the United States of America and Bulgaria, 
signed at Sofia on March 19, 1924, as well as the Supplementary 
Extradition Treaty, signed at Washington on June 8, 1934, and 
shall apply to all pending requests made under those prior 
treaties.
    Under Article 23, either State may terminate the Treaty 
with six months' written notice to the other State through the 
diplomatic channel.
    The Department of Justice joins the Department of State in 
urging approval of this Treaty by the Senate at the earliest 
possible date.

  Agreement on Certain Aspects of Mutual Legal Assistance in Criminal 
Matters Between the Government of the United States of America and the 
                 Government of the Republic of Bulgaria


                                OVERVIEW

    The Agreement on Certain Aspects of Mutual Legal Assistance 
in Criminal Matters between the Government of the United States 
of America and the Government of the Republic of Bulgaria (the 
``MLA Agreement'' or the ``Agreement'') serves to implement, as 
between the United States and Bulgaria, the provisions of the 
2003 Agreement on Mutual Legal Assistance between the United 
States of America and the European Union (the ``U.S.-EU Mutual 
Legal Assistance Agreement''). Because the United States and 
Bulgaria do not have a bilateral mutual legal assistance treaty 
in force between them, the MLA Agreement is a partial treaty 
governing only those issues regulated by the U.S.-EU Mutual 
Legal Assistance Agreement. This approach is consistent to the 
one taken with the other EU member states (Denmark, Finland, 
Malta, Portugal, Slovak Republic, and Slovenia) with which the 
United States did not have an existing bilateral mutual legal 
assistance treaty.
    The following is a description of the provisions of the MLA 
Agreement and the accompanying Annex.

The MLA Agreement

    Paragraph 1 of the Agreement specifies the articles of the 
U.S.-EU Mutual Legal Assistance Agreement applicable between 
the United States and Bulgaria. These provisions are set forth 
in detail in the Annex to the MLA Agreement.
    Paragraph 2 states that the Agreement shall not give rise 
to a right on the part of any private person to obtain, 
suppress, or exclude any evidence, or to impede the execution 
of a request.
    Paragraph 3 provides that the Annex to the Agreement 
reflects the provisions of the U.S.-EU Mutual Legal Assistance 
Agreement that shall apply between the United States and 
Bulgaria.
    In accordance with Article 12 of the U.S.-EU Mutual Legal 
Assistance Agreement, paragraphs 4 and 5 make the Agreement 
applicable to offenses committed both before and after the date 
it enters into force. In accordance with Article 12(2) of the 
U.S.-EU Mutual Legal Assistance Agreement, Articles 3 and 4 of 
the Annex apply to requests pending at the time the Agreement 
enters into force.
    Paragraph 6 sets forth provisions on the entry into force 
and termination of the Agreement. The Agreement will enter into 
force after an exchange of instruments between the United 
States and Bulgaria indicating that they have completed their 
internal procedures for entry into force and on the date of 
entry into force of the U.S.-EU Mutual Legal Assistance 
Agreement. Should the U.S.-EU Mutual Legal Assistance Agreement 
be terminated, the Agreement will also be terminated, although 
the Parties may nevertheless agree to continue to apply some or 
all of its provisions.

The Annex to the MLA Agreement

    Article 1 of the Annex incorporates Article 4 of the U.S.-
EU Mutual Legal Assistance Agreement (``Identification of bank 
information'').
    Article 1(1) requires the Requested State, upon receiving a 
request, to promptly ascertain if banks located in its 
territory possess information on whether a natural or legal 
person suspected of or charged with a criminal offense as 
designated pursuant to Article 1( 4), holds a bank account or 
accounts. Subsection (b) permits, but does not obligate, the 
Requested State to ascertain whether bank information exists 
pertaining to convicted persons, or whether there is 
information in the possession of non-bank financial 
institutions, or financial transactions other than those 
related to accounts.
    Article 1(2) requires a request for this form of 
cooperation to include, first, the identity of the natural or 
legal person relevant to locating such accounts or 
transactions; second, sufficient information to enable the 
competent authority of the Requested State to reasonably 
suspect that such person engaged in a criminal offense and that 
banks or non-bank financial institutions in the Requested State 
may have the information requested and to conclude that the 
information sought relates to the criminal investigation or 
proceeding for which assistance is sought; and, third, as much 
information as possible concerning which banks or other 
institutions may have the information, in order to reduce the 
breadth of the inquiry.
    Article 1(3) designates the U.S. channel of communication 
for requests for assistance under this article as the U.S. 
attache responsible for Bulgaria of the Drug Enforcement 
Administration, the Bureau of Immigration and Customs 
Enforcement, and the Federal Bureau of Investigation (depending 
on the nature of the investigation or proceeding giving rise to 
the request). For Bulgaria, the designated channel is the 
Supreme Cassation Prosecutors Office during pretrial and the 
Ministry of Justice during the trial. Article 1(3) also allows 
the United States and the European Union to modify these 
designations by exchange of diplomatic notes after the entry 
into force of the Agreement.
    Article 1(4) provides that the United States and Bulgaria 
will provide assistance under this article with respect to 
money laundering and terrorist activity punishable under the 
laws of both states, and with respect to such other criminal 
activity as to which they may notify each other. U.S. 
negotiators verified that under Bulgarian law, assistance will 
be available for a wide range of conduct associated with 
terrorism (which includes the conduct criminalized in 
international counter-terrorism conventions to which they are 
party) and money laundering with respect to an extremely broad 
range of predicate offenses.
    Article 1(5) establishes that assistance may not be refused 
under Article 1 on the grounds of bank secrecy.
    Article 1(6) provides that the Requested State shall 
respond to a request for production of the records concerning 
the accounts or transactions identified pursuant to this 
article in accordance with its domestic law.
    Article 2 of the Annex incorporates Article 5 of the U.S.-
EU Mutual Legal Assistance Agreement (``Joint investigative 
teams'').
    Article 2(1) provides that joint investigative teams may be 
established and operated in the respective territories of the 
United States and Bulgaria, where the Parties agree to do so.
    Under Article 2(2), the manner of the team's operation 
shall be agreed between the competent authorities, as 
determined by the respective States concerned.
    Article 2(3) describes channels of communication so as to 
facilitate direct communication between law enforcement 
authorities with respect to cases arising under Article 2. The 
paragraph provides that the competent authorities determined by 
the respective States concerned shall communicate directly for 
purposes of establishing and operating such teams, except where 
the complexity, scope or other circumstances involved are 
deemed to require more central coordination, in which case the 
States concerned may agree upon other channels of 
communication. This approach facilitates speed, efficiency and 
clarity by providing for direct communications in most cases 
among the affected law enforcement components, rather than 
through a mutual legal assistance request transmitted through a 
central authority, as would otherwise generally take place.
    Article 2(4) states that, where the joint investigative 
team needs investigative measures to be taken in one of the 
States involved in the team, a member of the team of that State 
may request its own competent authorities to take those 
measures without the other State having to submit a mutual 
legal assistance request. The legal standard for obtaining the 
measure is the applicable domestic standard. Thus, where an 
investigative measure is to be carried out in the United 
States, for example, a U.S. team member could do so by invoking 
existing domestic investigative authority, and would share 
resulting information or evidence seized pursuant to such an 
action with the foreign authorities. A formal mutual legal 
assistance request would not be required. In a case in which 
there is no domestic U.S. jurisdiction and consequently a 
compulsory measure cannot be carried out based on domestic 
authority, the provisions of 28 U.S.C. Section 1782 may furnish 
a separate legal basis for carrying out such a measure.
    Article 3 of the Annex incorporates Article 6 of the U.S.-
EU Mutual Legal Assistance Agreement (``Video conferencing'').
    Article 3(1) provides that the use of video transmission 
technology shall be available between the United States and 
Bulgaria for taking testimony in a proceeding for which mutual 
legal assistance is available. To the extent that procedures 
for video conferencing are not set forth in Article 3, the law 
of the Requested State governs the procedures.
    Article 3(2) provides that the costs associated with 
establishing and servicing the video transmission will be borne 
by the Requesting State, unless otherwise agreed. Other related 
costs will be borne as agreed upon by the United States and 
Bulgaria.
    Article 3(3) provides for a consultation mechanism in order 
to facilitate legal, technical or logistical issues that may 
arise in the execution of a particular request.
    Article 3(4) provides that the making of intentionally 
false statements or other witness or expert misconduct shall be 
punishable in the Requested State in the same manner as if such 
conduct had been committed in the course of a domestic 
proceeding. This is already the case where the United States 
has been requested to facilitate the taking of video testimony 
from a witness or expert located in the United States on behalf 
of a foreign State, since the proceeding to execute the request 
is a U.S. proceeding and therefore penalties under U.S. law for 
perjury, obstruction of justice or contempt of court are 
applicable.
    Article 3(5) specifies that the availability of video 
transmission technology for purposes of facilitating the taking 
of testimony does not mean that other means of obtaining 
testimony are no longer available.
    Article 3(6) makes clear that the Requested State may also 
permit the use of video conferencing technology for purposes 
other than providing testimony, including for purposes of 
identification of persons or objects, and taking of 
investigative statements (to the extent these are not 
considered to be testimony under the law of the Requesting 
State).
    Article 4 of the Annex incorporates Article 7 of the U.S.-
EU Mutual Legal Assistance Agreement (``Expedited transmission 
of requests''). Article 4 provides that requests for mutual 
legal assistance, and communications related thereto, may be 
made by expedited means of communications, including fax or 
email, with formal confirmation to follow where required by the 
Requested State. The Requested State may respond to the request 
by any such expedited means of communication.
    Article 5 of the Annex incorporates Article 8 of the U.S.-
EU Mutual Legal Assistance Agreement (``Mutual legal assistance 
to administrative authorities''). Article 5 provides an express 
legal basis for the provision of assistance to an 
administrative authority investigating conduct with a view to 
criminal prosecution or referral to criminal investigation or 
prosecution authorities, pursuant to its specific 
administrative or regulatory authority to undertake such 
investigation. If the administrative authority anticipates that 
no prosecution or referral will take place, assistance is not 
available. Article 5(2) provides that requests for assistance 
under Article 5 shall be transmitted between the U.S. 
Department of Justice and the Bulgarian Ministry of Justice or 
such other authorities as may be agreed upon by the U.S. 
Department of Justice and Bulgarian Ministry of Justice.
    Article 6 of the Annex incorporates Article 9 of the U.S.-
EU Mutual Legal Assistance Agreement (``Limitations on use to 
protect personal and other data'').
    Article 6(1) permits the Requesting State to use evidence 
or information it has obtained from the Requested State for its 
criminal investigations and proceedings, for preventing an 
immediate and serious threat to its public security, for non-
criminal judicial or administrative proceedings directly 
related to its criminal investigations or proceedings, for non-
criminal judicial or administrative proceedings for which 
assistance was provided under Article 5 of the Annex, and for 
any other purpose if the information or evidence was made 
public within the framework of the proceedings for which it was 
transmitted or pursuant to the above permissible uses. Other 
uses of the evidence or information require the prior consent 
of the Requested State.
    Article 6(2)(a) specifies that the Article does not 
preclude the Requested State from imposing additional 
conditions where the particular request for assistance could 
not be granted in the absence of such conditions. Where such 
additional conditions are imposed, the Requested State may 
require the Requesting State to give information on the use 
made of the evidence or information.
    Article 6(2)(b) provides that generic restrictions with 
respect to the legal standards of the Requesting State for 
processing personal data may not be imposed by the Requested 
State as a condition under paragraph 2( a) to providing 
evidence or information. This provision is further elaborated 
upon in the explanatory note to the U.S.-EU Mutual Legal 
Assistance Agreement (regarding Article 9(2)(b) of that 
Agreement), which specifies that the fact that the Requesting 
and Requested States have different systems of protecting the 
privacy of data does not give rise to a ground for refusal of 
assistance and may not as such give rise to additional 
conditions under Article 6(2)(a). Such refusal of assistance 
could only arise in exceptional cases in which, upon balancing 
the important interests involved in the particular case, 
furnishing the specific data sought by the Requesting State 
would raise difficulties so fundamental as to be considered by 
the Requested State to fall within the ``essential interests'' 
grounds for refusal contained in Article 8.
    Article 6(3) provides that where, following disclosure to 
the Requesting State, the Requested State becomes aware of 
circumstances that may cause it to seek additional conditions 
in a particular case, it may consult with the Requesting State 
to determine the extent to which the evidence or information 
can be protected.
    Article 7 of the Annex incorporates Article 10 of the U.S.-
EU Mutual Legal Assistance Agreement (``Requesting State's 
request for confidentiality''). Article 7 requires the 
Requested State, if asked, to use its best efforts to keep 
confidential a request and its contents, and to inform the 
Requesting State if the request cannot be executed without 
breaching confidentiality.
    Article 8 of the Annex incorporates Article 13 of the U.S.-
EU Mutual Legal Assistance Agreement (``Non-derogation''). 
Article 8 makes clear that the provisions of the Annex do not 
preclude the assertion of a ground for refusal of assistance 
available to the Requested States pursuant to its applicable 
legal principles, including where execution of the request 
would prejudice its sovereignty, security, public order or 
other essential interests, except where such ground for refusal 
is precluded by Article 1(5) (bank secrecy) or 6(2)(b) (generic 
restrictions relating to personal data) of the Annex.
    The Department of Justice joins the Department of State in 
urging approval of this Agreement by the Senate at the earliest 
possible date.