[Senate Treaty Document 106-22]
[From the U.S. Government Publishing Office]
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106th Congress Treaty Doc.
2d Session SENATE 106-22
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TREATY WITH RUSSIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE RUSSIAN FEDERATION
ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON
JUNE 17, 1999, AND A RELATED EXCHANGE OF NOTES
February 10, 2000.--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
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U.S. GOVERNMENT PRINTING OFFICE
79-118 WASHINGTON : 2000
LETTER OF TRANSMITTAL
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The White House, February 10, 2000.
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 United States of America and the Russian Federation on
Mutual Legal Assistance in Criminal Matters, signed at Moscow
on June 17, 1999. I transmit also, for the information of the
Senate, a related exchange of notes and the report of the
Department of State with respect to the Treaty.
The Treaty is one of the 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, money
laundering, organized crime and drug-trafficking 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 obtaining the testimony or statements of persons;
providing documents, records and other items; serving
documents; locating or identifying persons and items; executing
requests for searches and seizures; transferring persons in
custody for testimony or other purposes; locating and
immobilizing assets for purposes of forfeiture, restitution, or
collection of fines; and any other form of legal assistance not
prohibited by the laws of the Requested Party.
I recommend that the Senate give early and favorable
consideration to the Treaty and give its advice and consent to
ratification.
William J. Clinton.
LETTER OF SUBMITTAL
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Department of State,
Washington, December 30, 1999.
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 Russian Federation
on Mutual Legal Assistance in Criminal Matters (the
``Treaty''), signed at Moscow on June 17, 1999. I recommend
that the Treaty be transmitted to the Senate for its advice and
consent to ratification. Accompanying the Treaty is a related
exchange of notes that I recommend be transmitted for the
information of the Senate.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, similar bilateral treaties have
entered into force with a number of countries. This Treaty
contains many provisions similar to those in the other treaties
and all of the essential provisions sought by the United
States. It will enhance our ability to investigate and
prosecute a variety of crimes, including terrorism, money
laundering, organized crime and drug-trafficking offenses of
particular interest to the U.S. law enforcement community with
respect to the Russian Federation.
The Treaty is designed to be self-executing and will not
require new legislation.
Article 1 states that the Parties shall provide to each
other, in accordance with the Treaty, comprehensive mutual
legal assistance in criminal matters. Article 1(2) defines
legal assistance in criminal matters for purposes of the Treaty
as assistance provided by the Parties in connection with:
prevention, suppression, and investigation of crimes; criminal
prosecutions; and other proceedings related to such criminal
matters. Article 1(3) provides for legal assistance where the
conduct that is the subject of the request constitutes a crime
under the laws of both Parties. The Requested Party may, in its
discretion, also provide legal assistance where the conduct
that is the subject of the request would not constitute a crime
under the laws of the Requested Party. Article 1(4) states
explicitly that the Treaty is intended to apply solely between
the Parties; it does not give rights to any other persons to
obtain or exclude any evidence, or to impede the execution of a
request. Article 1(5) defines the term ``person'' to include
both individuals and legal entities in Article 1(4), Article
2(4), Article 5(3) subparagraphs 1-5, Article 10(1), Article
14), and Article 15(2).
Article 2 sets forth a non-exclusive list of the major
types of assistance to be provided under the Treaty, including
obtaining testimony and statements; providing documents,
records, and other items; serving documents; locating and
identifying persons and items; executing requests for searches
and seizures; transferring persons in custody for testimony or
other purposes under the Treaty; locating and immobilizing
assets for purposes of forfeiture, restitution, or collection
of fines; and providing any other legal assistance not
prohibited by the laws of the Requested Party.
Article 3 provides for the establishment of Central
Authorities and defines Central Authorities for purposes of the
Treaty. Each Party must implement the provisions of the Treaty,
including the making and receiving of requests, through its
Central Authority. For the United States, the Central Authority
is the Attorney General or persons designated by the Attorney
General. For the Russian Federation, the Central Authority is
the Office of the Procurator General of the Russian Federation
or persons designated by the Procurator General.Article 3(3)
provides that the Central Authorities will communicate directly with
one another for the purposes of the Treaty, and may agree upon such
practical measures as may be necessary to facilitate the implementation
of the Treaty.
Article 4 deals with the denial of legal assistance.
Article 4(1) sets forth the circumstance under which a
Requested Party's Central Authority may deny assistance under
the Treaty. A request may be denied if: (i) it relates to a
crime under military law that is not a crime under general
criminal law, (ii) its execution would prejudice the security
or other essential interests of the Requested Party, or (iii)
it does not conform to the requirements of the Treaty. In an
exchange of diplomatic notes dated June 17, 1999, September 22,
1999, and October 20, 1999, the Parties restated the
understanding of the negotiating delegations that the
``security or other essential interests'' provision in Article
4(1) provides an adequate basis upon which to deny assistance
requests in cases the United States would consider political
offenses. Under Article 4(2), the Requested Party may not
decline execution of a request on the grounds of bank secrecy.
Before denying assistance, the Central Authority of the
Requested Party is required under Article 4(3) to consult with
its counterpart in the Requesting Party to consider whether
legal 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 such
conditions, it is required to comply with the conditions. If
the Central Authority of the Requested Party denies assistance,
it is required under Article 4(4) to inform the Central
Authority of the Requesting Party of the reasons for the
denial.
Article 5 prescribes the form and content of written
requests under the Treaty, specifying in detail the information
required in each request. The article permits requests to be
made in other forms in urgent situations but requires written
confirmation within ten days unless the Central Authority of
the Requested Party agrees otherwise.
Article 6 provides that, except as otherwise agreed by the
Central Authority of the Parties, requests for legal assistance
and documents attached to them must be accompanied by a
translation into the language of the Requested Party.
Article 7 addresses the execution of requests. Article 7(1)
requires the Central Authority of the Requested Party to
execute a request promptly or to transmit it to the authority
having jurisdiction to do so. It obligates the competent
authorities of the Requested Party to do everything in their
power to execute a request in a timely manner. Article 7(2)
requests the Central Authority of the Requested Party to
represent the interests of the Requesting Party in executing
the requests.
Under Article 7(3), requests are to be executed in
accordance with the laws of the Requested Party except if the
Treaty provides otherwise. It provides that the competent
authorities of the Requesting Party will have the authority to
issue subpoenas, search warrants, or other orders necessary for
the execution of requests. Except if prohibited by its laws,
the Requested Party must follow procedures specified in the
request. Under Article 7(4), if the Central Authority of the
Requested Party considers that execution of a request will
interfere with a criminal investigation, criminal prosecution,
or proceeding related to a criminal matter ongoing in that
State, it may postpone execution or impose conditions on
execution after consultation with the Central Authority of the
Requesting Party. If the Requesting Party accepts legal
assistance subject to such conditions, it must comply with
them.
Article 7(5) further requires the Requested Party, if so
requested, to use its best efforts to keep confidential a
request and its contents, and to inform the Requesting Party's
Central Authority if the request cannot be executed without
breaching such confidentiality. This provides the Requesting
Party an opportunity to decide whether to pursue the request or
to withdraw it in order to maintain confidentiality.
Article 7(6) requires the Requested Party's Central
Authority to respond to inquiries by the Requesting Party's
Central Authority regarding the status of the execution of a
request. Article 7(7) states that, upon request of the Central
Authority of the Requesting Party, the Central Authority of the
Requested Party must furnish information in advance about the
date and place of the execution of a request. During the
execution of a request, the Requested Party must permit the
presence of such persons as are specified therein.
Article 7(8) requires the Central Authority of the
Requested Party to inform promptly the Central Authority of the
Requesting Party of the outcome of the execution of the
request. If the request is not executed, or if execution is
delayed or postponed, the Central Authority of the Requested
Party must inform the Central Authority of the Requesting Party
of the reasons for non-execution, delay, or postponement.
Article 8 apportions between the two Parties costs incurred
in executing a request. It provides that the Requested Party
pay all costs, except for the following items to be paid by the
Requesting Party: fees of experts, costs of translation,
interpretation, and transcription, and the allowances expense
related to travel of persons pursuant to Articles 11 and 12. If
it becomes apparent that the execution of the request requires
expenses of an extraordinary nature, the Central Authorities of
the Parties must consult to determine the terms and conditions
under which legal assistance can be provided.
Article 9 requires the Requesting Party to comply with any
request by the Central Authority of the Requested Party not to
use the results of the execution of a request obtained under
the Treaty for purposes other than those described in the
request without its prior consent. Nothing in the Article
prevents the use or disclosure of the results of an executed
request to the extent that there is an obligation to do so
under the Constitution of the Requesting Party in a chemical
prosecution. The Central Authority of the Requesting Party is
obliged to notify the Central Authority of the Requested Party
in advance of any such possible or proposed use or disclosure.
Once the results of an executed request have been used for the
purpose for which they were provided, and in the course of such
use have been made public in the Requesting Party in accordance
with the Treaty, no further limitations on use apply.
Article 10 addresses the procedures for obtaining testimony
and evidence in the Requested Party. Article 10(1) provides
that a person requested to testify and produce documents,
records, or items in the Requested Party be summoned, if
necessary by subpoena or order, to appear and testify and
produce such documents, records, or items, in accordance with
the requirements of the law of the Requested Party. Article
10(2) further states that, in accordance with procedures used
in the Requested Party, persons present at the execution of a
request must be permitted to pose questions directly or to
formulate questions to be posed to the person being questioned,
and to make a verbatim transcript of the proceeding using, if
necessary, technical means. 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 10(3) provides that the evidence will still
be taken and the claim made known to the Requesting Party for
resolution by its authorities.
Article 11 addresses the procedures for obtaining testimony
in the Requesting Party. Article 11(1) provides a mechanism for
the Requesting Party to invite the voluntary appearance in its
territory of a person located in the Requested Party. As part
of its invitation, the Requesting Party must indicate the
extent to which the expenses and allowances will be paid. The
Central Authority of the Requested Party is required to inform
promptly the Central Authority of the Requesting Party of the
response of the person. A person who agrees to appear may ask
that the Requesting Party advance money to cover these
expenses. This advance may be provided through the Embassy or a
consulate of the Requesting Party. Article 11(2) provides that
a person appearing in the Requesting Party pursuant to this
Article will 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. If this guarantee cannot be
provided for any reason, the Central Authority of the
Requesting Party is obligated to indicate this in the request
to inform the invited person and to allow that person to decide
whether to appear taking these circumstances into account.
Under Article 11(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
has voluntarily returned to it. The Central Authority of the
Requesting Party may, in its discretion, extend this safe
conduct period up to fifteen days if it determines that there
is good cause to do so.
Article 12 provides that a person who is in the custody of
either Party and whose presence in the other Party is sought
for purposes of legal assistance under the Treaty will be
transferred to that Party for that purpose if the person
consents and the Central Authorities of both Parties agree.
Under this article, for example, a witness incarcerated in the
Requested Party could be transferred to the Requesting Party to
have his deposition taken in the presence of the defendant or a
defendant in the Requesting Party could be transferred to
attend a witness deposition in the Requested Party.
Article 12(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 return of the person transferred is
to occur as soon as circumstances permit or as otherwise agreed
by both Central Authorities, and the sending Party is not
required to initiate extradition proceedings for return of the
person transferred. The person transferred receives credit for
service of the sentence imposed in the sending Party for time
served in the custody of the receiving Party. Where the
sentence imposed expires, or where the sending Party advises
the receiving Party that the transferred person is no longer
required to be held in custody, the person is to be treated as
a person invited pursuant to Article 11 or returned to the
sending Party.
Article 13 requires that, upon request, the Requested Party
Provide the Requesting Party with copies of publicly available
records, including documents or information of any nature and
in any form that are in the possession of an executive,
legislative, or judicial authority in the RequestedParty. The
Requested Party may further provide copies of records, including
documents or information of any nature and in any form that are in the
possession of an executive, legislative, or judicial authority in that
Party, but that are not publicly available, but only to the same extent
and under the same conditions as these records would be available to
the competent authorities of that Party. The Requested Party has the
discretion to deny the latter type of request entirely or in part.
Article 14 requires the Requested Party to use its best
efforts to ascertain the location or identity of persons or
information about items in the Requested Party specified in a
request.
Article 15 obligates the Requested Party to use its best
efforts to effect service of documents pursuant to a request. A
request for the 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 16 provides the conditions through which items can
be located, seized and transferred. Article 16(1) obligates the
Requested Party to execute requests for search, seizure, and
transfer of any item to the Requesting Party if the request
includes the information justifying such action under the laws
of the Requested Party. Article 16(2) provides that, if
requested, every official of the Requested Party who has
custody of a seized item certify the identity of the item, the
continuity of its custody, and the integrity of its condition.
Article 16(3) further provides that the Requested Party may
require that the Requesting Party agree to the terms and
conditions deemed necessary to protect third-party interests in
items to be transferred.
Article 17 addresses the transfer of documents, records,
and other items. When a request for legal assistance concerns
the transfer of documents or records, Article 17(1) requires
the Requested Party to transfer true copies of them, unless the
Requesting Party expressly requests the originals, in which
case the Requested Party must make every effort to comply with
the request. Article 17(2) further provides that, insofar as
not prohibited by its laws, the Requested Party is obligated to
transfer documents, records, or other items in such a manner or
accompanied by such certification as may be requested by the
Requesting Party in order to make them admissible according to
the law of the Requesting Party. For this purpose, the
CentralAuthorities of the Parties will exchange information pursuant to
Article 3(3) with respect to the requirements for admissibility in
their respective legal systems. Documents, records, and other items
transferred as requested under this paragraph require no further
certification to make them admissible. Article 17(3) states that the
Central Authority of the Requested Party may require the Central
Authority of the Requesting Party to return, as soon as possible, any
documents, records, or other items furnished to it in execution of a
request under the Treaty.
Article 18 obligates the Parties, in accordance with their
laws, to assist each other in locating, immobilizing, and
seizing proceeds, including earnings from, or that are the
result of, criminal activities, as well as instrumentalities of
crime, for purposes of forfeiture, restitution to victims of
crime, and collection of fines imposed pursuant to judicial
decisions in criminal matters. Article 18(2) provides that if
the Central Authority of one Party becomes aware that proceeds
and instrumentalities of crime that may be subject to
forfeiture are located in the territory of the other Party, it
may so inform the Central Authority of the other Party so that
the other Party may take appropriate measures under Article
18(3). The Central Authority receiving the information is
obligated to notify the Central Authority providing the
information of the action taken.
Under Article 18(3), the Party that has immobilized,
seized, or forfeited the proceeds and instrumentalities of
crime is required to dispose of them in accordance with its
laws. That Party shall transfer all or part of such forfeited
assets, or the proceeds of their sale, to the other Party,
including for the purpose of forefeiture and restitution,
insofar as permitted by its laws and to the extent it deems it
appropriate and within the time frame and under the conditions
it deems acceptable.
Article 19 provides that the Central Authorities will
consult, at times mutually agreed, to promote the most
effective use of the Treaty.
Article 20 states that the Treaty applies to any requests
presented after its entry into force even if the relevant acts
or omissions occurred before that date.
Article 21 provides that the provisions of the Treaty will
not prevent either of the Parties from cooperating and granting
legal assistance in accordance with the provisions of other
applicableinternational treaties and agreements, national laws,
and practices.
Article 22 provides that the Treaty is subject to
ratification and will enter into force upon the exchange of
instruments of ratification, which is to take place as soon as
possible. Article 22(2) provides further that, upon entry into
force of the Treaty, the Agreement between the Government of
the United States of America and the Government of the Russian
Federation on Cooperation in Criminal Matters, signed on June
30, 1995, will no longer be in force. Article 22(3) states that
either Party may terminate the Treaty by written notice to the
other Party through the diplomatic channel, and that such
termination will take effect six months following the date of
receipt of notification.
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.
Strobe Talbot.