Staff Writer, DL Mullan
Ukraine / Mutual Legal Assistance
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TREATY WITH UKRAINE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE UNITED STATES OF AMERICA AND UKRAINE ON MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS WITH ANNEX, SIGNED AT KIEV ON JULY 22,
1998, AND WITH AN EXCHANGE OF NOTES SIGNED ON SEPTEMBER 30, 1999, WHICH
PROVIDES FOR ITS PROVISIONAL APPLICATION
November 10, 1999.--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 : 1999
LETTER OF TRANSMITTAL
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The White House, November 10, 1999.
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 Ukraine on Mutual Legal
Assistance in Criminal Matters with Annex, signed at Kiev on
July 22, 1998. I transmit also, for the information of the
Senate, an exchange of notes which was signed on September 30,
1999, which provides for its provisional application, as well
as 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 drug trafficking
offenses. The Treaty is self-executing. It provides for a broad
range of cooperation in criminal matters. Mutual assistance
available under the Treaty includes: taking of testimony or
statements of persons; providing documents, records, and
articles of evidence; serving documents; locating or
identifying persons; transferring persons in custody for
testimony or other purposes; executing requests for searches
and seizures; assisting in proceedings related to restraint,
confiscation, forfeiture of assets, restitution, and collection
of fines; and any other form of assistance not prohibited by
the laws of the requested state.
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, October 19, 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 Ukraine on Mutual
Legal Assistance in Criminal Matters with Annex (``the
Treaty''), signed at Kiev on July 22, 1998. I recommend that
the Treaty be transmitted to the Senate for its advice and
consent to ratification.
Also enclosed, for the information of the Senate, is an
exchange of notes under which the Treaty is being provisionally
applied to the extent possible under our respective domestic
laws, in order to provide a basis for immediate mutual
assistance in criminal matters. Provisional application would
cease upon entry into force of the Treaty.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, similar bilateral treaties have
entered into force with a number of other countries. The Treaty
with Ukraine contains all essential provisions sought by the
United States. It will enhance our ability to investigate and
prosecute a range of offenses. The Treaty is designed to be
self-executing and will not require new legislation.
Article 1 sets forth a non-exclusive list of the major
types of assistance to be provided under the Treaty, including
taking the testimony or statements of persons; providing
documents, records and other items of evidence; locating or
identifying persons or items; 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, and collection of fines; and, rendering any other
form of assistance not prohibited by the laws of the Requested
State. The scope of the Treaty includes not only criminal
offenses, but also proceedings related to criminal matters,
which may be civil or administrative in nature.
Article 1(3) states that assistance shall be provided
without regard to whether the conduct involved would constitute
an offense under the laws of the Requested State.
Article 1(4) states explicitly that the Treaty is not
intended to create rights in private parties 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 shall be
the Attorney General or a person designated by the Attorney
General. For Ukraine, the Central Authority shall be the
Ministry of Justice and the Office of the Prosecutor General.
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 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. A further ground for denial is that the request relates to
a political offense (a term expected to be defined on the basis
of that term's usage in extradition treaties). In addition, a
request may be denied if its execution would prejudice the
security or similar essential interests of the Requested State,
or if it is not made in conformity with the Treaty.
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 RequestedState deems necessary. If the
Requesting State accepts assistance subject to these conditions, it is
required to comply with the conditions. If the Central Authority of the
Requested State denies assistance, it is required 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. The article permits other forms of
requests in emergency situations but requires written
confirmation within ten days thereafter unless the Central
Authority of the Requested State agrees otherwise.
Article 5 requires the Central Authority of the Requested
State to execute the request promptly or to transmit it to the
authority having jurisdiction to do so. It provides that the
competent authorities of the Requested State shall do
everything in their power to execute a request, and that the
courts or other competent authorities of the Requested State
shall have authority to issue subpoenas, search and arrest
warrants, or other orders necessary to execute the request. 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.
Under Article 5(3), requests are to be executed in
accordance with the laws of the Requested State except to the
extent that the Treaty provides otherwise. However, the method
of execution specified in the request is to be followed except
insofar as it is prohibited by the laws of the Requested State.
Article 5(4) provides that if the Central Authority of the
Requested State determines that execution of the request would
interfere with an ongoing criminal investigation, prosecution,
or proceeding in that State, it may postpone execution or,
after consulting with the Central Authority of the Requesting
State, impose conditions on execution. If the Requesting State
accepts assistance subject to the conditions, it shall comply
with such conditions.
Article 5(5) further requires the Requested State, if so
requested, to use its best efforts to keep confidential a
request and its contents, and to inform the Requesting State's
Central Authority if the request cannot be executed without
breaching 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 additionally requires the Requested State's
Central Authority to respond to reasonable inquiries by the
Requesting State's Central Authority regarding the status of
the execution of a particular request; to report promptly to
the Requesting State's Central Authority the outcome of its
execution; and, if the request is denied, to inform the
Requesting State's Central Authority of the reasons for the
denial.
Article 6 apportions between the two States the costs
incurred in executing a request. It provides that the Request
State shall pay all costs, except for the following items to be
paid by the Requesting State: fees of expert witnesses, costs
of interpretation, translation and transcription, and
allowances and expenses related to travel of persons pursuant
to Articles 10 and 11. If during the execution of the request,
it becomes apparent that extraordinary expenses will be
entailed, the Central Authorities shall consult to determine
the terms and conditions under which execution may continue.
Article 7 requires the Requesting State to comply with any
request by the Central Authority of the Requested State that
information or evidence obtained under the Treaty not be used
for proceedings other than those described in the request
without its priorconsent. Further, if the Requested State's
Central Authority asks that information or evidence furnished under
this Treaty be kept confidential or be used in accordance with
specified 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 or these provisions, no
further limitations on use apply. 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 obliged to notify the
Requesting State in advance of any such proposed use or disclosure.
Article 8 provides that a person in the Requesting State
from whom testimony or evidence is requested pursuant to the
Treaty shall be compelled, if necessary, to appear and testify
or produce items, documents and records. The article requires
the Central Authority of the Requested State, upon request, 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
the presence of persons specified in the request and to permit
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 shall be taken and the claim
made known by written notification to the Central Authority of
the Requesting State for resolution by its competent
authorities. Finally, in order to ensure admissibility of
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.
Article 9 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of government departments and agencies in the
Requesting State. The Requested State may further 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 it would provide them to its own law enforcement
or judicial authorities. The Requested State has the discretion
to refuse to execute, entirely or in part, such requests for
records not publicly available. Article 9(3) provides that
records produced pursuant to this Article shall, upon request,
be certified by the appropriate form attached to the request.
Article 9(3) also provides that no further authentication shall
be necessary for admissibility into evidence in the Requesting
State of official records pursuant to this Article.
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 shall indicate the extent to
which the expenses will be paid. It also states that the
Central Authority of the Requesting State has discretion to
determine that a person appearing in the Requesting State
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 his departure from the Requested State. 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.
Article 11 provides for temporary transfer of a person in
custody in the Requested State or in a third State to the
Requesting State for purposes of assistance under the Treaty
(for example, a witness incarcerated in the Requested State may
be transferred to have his deposition taken in the presence of
the defendant), provided that the person in question and the
Central Authorities of both States agree. The article also
provides for 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 Requesting 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 agreed by
both Central Authorities. The return of the person transferred
is subject to terms and conditions agreed to by the Central
Authorities, and the sending State is not required to initiate
extradition proceedings for return of the person transferred.
The person transferred receives credit for time served in the
custody of the receiving State.
Article 12 establishes the authority of the Requested State
to authorize transit through its territory of a person held in
custody by a third State whose appearance has been requested by
the Requesting State. The Requested State further has the
authority and the obligation to keep the person in custody
during transit. The Parties retain discretion to refuse to
grant transit of their own nationals, however.
Article 13 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items specified in a 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.
Article 15 obligates the Requested State to execute
requests for search, seizure, and delivery of any item to the
Requesting State if the request includes the information
justifying such action under the laws of theappropriate. The
Central Authority of the State receiving such information is required
to inform the Central Authority that provided the information of any
action taken.
Article 17 also obligates the Contracting States to assist
each other to the extent permitted by their respective laws in
proceedings relating to forfeiture of the proceeds and
instrumentalities of offenses, restitution to victims of crime,
and collection of fines imposed as sentences in criminal
prosecutions. This may include action to temporarily immobilize
the proceeds or instrumentalities pending further proceedings.
The Contracting State having custody over proceeds or
instrumentalities of offenses is required to dispose of them in
accordance with its laws. Either Contracting State may transfer
all or part of such assets, or the proceeds of their sale, to
the extent permitted by the transferring State's laws and upon
such terms as it deems appropriate.
Article 18 states that assistance and procedures provided
in the Treaty shall not prevent either Contracting State from
granting assistance to the other Contracting State through the
provisions of other applicable international agreements or
through the provisions of its national law. The Contracting
States may also provide assistance pursuant to any bilateral
arrangement, agreement, or practice which may be applicable.
Article 19 provides that the Central Authorities of the
Contracting States shall 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 20 provides that the Treaty is subject to
ratification and the instruments shall be exchanged at
Washington as soon as possible. The Treaty enters into force
upon the exchange of instruments of ratification. Article 20
further provides that either Contracting State may terminate
the Treaty by written notice to the other Contracting State,
with termination to be effective six months following the date
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 Talbott.
Source:
Congress online
