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T.Doc.104-21 TREATY WITH AUSTRIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ...


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   104th Congress 1st            SENATE              Treaty Doc.
         Session
                                                        104-20
_______________________________________________________________________



                                     



 
   TREATY WITH HUNGARY ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  FROM

                   THE PRESIDENT OF THE UNITED STATES

                              TRANSMITTING

 THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND 
THE GOVERNMENT OF THE REPUBLIC OF HUNGARY ON MUTUAL LEGAL ASSISTANCE IN 
        CRIMINAL MATTERS, SIGNED AT BUDAPEST ON DECEMBER 1, 1994

<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


 September 6, 1995.--Treaty was read the first time and, together with 
the accompanying papers, referred to the Committee on Foreign Relations 
          and ordered to be printed for the use of the Senate
                         LETTER OF TRANSMITTAL

                              ----------                              

                                The White House, September 6, 1995.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the Treaty Between 
the Government of the United States of America and the 
Government of the Republic of Hungary on Mutual Legal 
Assistance in Criminal Matters, signed at Budapest on December 
1, 1994. 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 that the United States is negotiating 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 modern criminals, including members of 
drug cartels, ``white-collar'' criminals, and terrorists. The 
Treaty is self-executing.
    The Treaty provides for a broad range of cooperation in 
criminal matters. Mutual assistance available under the Treaty 
includes: (1) taking testimony or statements of persons; (2) 
providing documents, records, and articles of evidence; (3) 
serving documents; (4) locating or identifying persons or 
items; (5) transferring persons in custody for testimony or 
other purposes; (6) executing requests for searches and 
seizures; (7) assisting in forfeiture proceedings; and (8) 
rendering 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

                              ----------                              

                                       Department of State,
                                        Washington, August 4, 1995.
The President,
The White House.
    I have the honor to submit to you the Treaty between the 
Government of the United States of America and the Government 
of the Republic of Hungary on Mutual Legal Assistance in 
Criminal Matters (the ``Treaty''), signed at Budapest on 
December 1, 1994. 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 with Argentina, The Bahamas, Canada, Italy, 
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland, 
Thailand, Turkey, the United Kingdom (concerning the Cayman 
Islands), and Uruguay. Other similar treaties have been signed 
and ratified by the United States (but have not yet entered 
into force) with Belgium, Colombia, and Panama. In addition, 
treaties with Nigeria, Korea, and the United Kingdom have been 
transmitted to the Senate and await Senate consideration. This 
Treaty contains many provisions similar to those in the other 
treaties.
    It will enhance our ability to investigate and prosecute a 
variety of offenses, including violent crimes, drug 
trafficking, and fraud and other white-collar crimes. The 
Treaty is designed to be self-executing and will not require 
implementing legislation.
    Article 1 contains a non-exhaustive list of the major types 
of assistance to be provided under the Treaty, including taking 
the testimony or statements of persons; providing documents, 
records, and articles of evidence; serving documents; locating 
or identifying persons or items; transferring persons in 
custody for testimony or other purposes; executing requests for 
searches and seizures; assisting in forfeiture proceedings; and 
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. 
Moreover, the article declares that dual criminality is not 
required for assistance to be provided under the Treaty. In 
other words, assistance shall be provided without regard to 
whether the conduct involved would constitute an offense under 
the laws of the Requested State. The article makes it clear 
that the Treaty is designed to be utilized only by governmental 
authorities who seek evidence for use in criminal 
investigations and prosecutions. The Treaty is not intended to 
create any right in a private person to seek, suppress or 
exclude evidence.
    Article 2 provides for the establishment of Central 
Authorities and defines the 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 the Republic of Hungary, the Central Authority is 
the Minister of Justice and the Chief Public Prosecutor, or 
persons designated by them. The Central Authorities shall 
communicate directly between each other for purposes of the 
Treaty. This dual Central Authority arrangement for Hungary 
reflects the importance and independence of the Office of the 
Chief Public Prosecutor in the Hungarian criminal justice 
system. Although such an arrangement will be unique among U.S. 
treaties in the mutual assistance field, no practical problems 
with implementation of the Treaty are anticipated.
    Article 3 sets forth the circumstances under which the 
Requested State may deny assistance under the Treaty. A request 
may be denied if it relates to a political offense, or a 
military offense that would not be a crime under ordinary 
criminal law. In addition, a request may be denied if its 
execution would prejudice the sovereignty, security or similar 
essential interests of the Requested State, or if the request 
does not comply with the provisions of Article 4.
    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 it deems 
necessary. If the Requesting State accepts assistance subject 
to conditions, it shall comply with the conditions. If the 
Central Authority of the Requested State denies assistance, it 
shall 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 specifies further 
information to be provided to the extent necessary and possible 
to assist in locating individuals and effecting particular 
types of assistance. Unless otherwise agreed, all requests and 
supporting documents shall be in the language of the Requested 
State.
    Article 5 requires the Requested State to comply promptly 
with a request, or to transmit it to the authorities with 
jurisdiction to do so. The competent authorities of the 
Requested State shall do everything in their power to execute a 
request. The judicial authorities of the Requested State shall 
have the authority to issue subpoenas, search warrants, or 
other orders necessary to execute the request.
    Requests are to be executed in accordance with the laws of 
the Requested State except to the extent the Treaty provides 
otherwise. However, the method of execution specified in the 
request shall be followed except insofar as it is prohibited by 
the laws of the Requested State. If the Central Authority of 
the Requested State determines that execution of the request 
would interfere with an ongoing criminal investigation or 
proceeding, it may postpone execution or, after consultations 
with the Requesting State, impose conditions on such execution. 
If the Requesting State accepts assistance subject to such 
conditions, it shall comply with them.
    Article 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 if 
the request cannot be executed without breaching 
confidentiality.
    Article 6 apportions between the two States the costs 
incurred in executing a request. Generally, the Requested State 
pays all costs relating to the execution of the request, except 
for the fees of expert witnesses, travel and subsistence 
expenses for the travel of persons pursuant to Articles 10 or 
11, and the costs of translation, interpretation, and 
transportation.
    Article 7 provides that the Central Authority of the 
Requested State may require that any information or evidence 
obtained under the Treaty not be used for investigations, 
proceedings, or prosecutions other than those described in the 
request without the prior consent of the Requested State. If 
the Requested State requests that information or evidence 
furnished be kept confidential or be used in accordance with 
conditions specified by its Central Authority, the Requesting 
State is required to use its best efforts to comply with the 
conditions specified. Once information is made public in the 
Requesting State in accordance with the Treaty, no further 
limitations on use apply.
    Article 8 provides that the Requested State may compel, if 
necessary, the taking of testimony or production of documents 
or other evidence in its territory on behalf of the Requesting 
State. The article requires the Requested State, upon request, 
to inform the Requesting State in advance of the date and place 
of the taking of testimony.
    Article 8 also requires the Requested State to permit the 
presence of any persons specified in the request (such as the 
accused, counsel for the accused, or other interested persons) 
and to permit such persons to question the person whose 
testimony is being taken or, if such direct questioning is not 
permitted, to submit questions to the appropriate authority. 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, the testimony or 
evidence shall be taken and the claim made known to the 
Requesting State for resolution by its authorities.
    Finally, Article 8 provides a mechanism for authentication 
of documentary evidence produced pursuant to this article and 
provides that no further authentication of certification shall 
be necessary in order for such information to be admissible in 
evidence in proceedings in the Requesting State.
    Article 9 requires that the Requested State provides the 
Requesting State with copies of publicly available records or 
information of government departments or agencies. The 
Requested State may further provide copies of records or 
information in the possession of a governmental or judiciary 
authority in that State but not publicly available, to the same 
extent and under the same conditions as it would to its own law 
enforcement or judicial authorities, but the Requested State 
has the discretion to deny such requests entirely or in part. 
Article 9 provides that no further authentication is necessary 
for admissibility into evidence in the Requesting State for 
official records authenticated in accordance with the 
provisions of the Convention Abolishing the Requirement of 
Legalization for Foreign Public Documents dated October 5, 
1961.
    Article 10 provides a mechanism for the Requesting State to 
invite the voluntary appearance and testimony in its territory 
of a person located in the Requested State. The Central 
Authority of the Requested State is required to invite the 
person to appear and promptly to inform the Requesting State of 
the person's response.
    Article 11 provides for the voluntary transfer to one State 
of a person in custody in the other State for purposes of 
assistance under the Treaty, provided that the person in 
question and both States agree. The article establishes the 
express authority and the obligation of the Requesting State to 
maintain the person transferred in custody unless otherwise 
authorized by the Requested State. It further obligates the 
Requesting State to return the person to the Requested State as 
soon as circumstances permit or as otherwise agreed by both 
Central Authorities, without the need for extradition 
proceedings.
    Article 12 provides that the Central Authority of the 
Requesting State may, in its discretion, determine that a 
person appearing in the Requesting State pursuant to Article 10 
or 11 shall not be subject to service of process, or be 
detained or subjected to any restriction of personal liberty. 
This ``safe conduct'' is limited to acts or convictions that 
preceded the person's departure from the Requested State. Any 
safe conduct provided under this article shall cease 15 days 
after the person's presence is no longer required in the 
Requesting State or whenever the person voluntarily reenters 
the Requesting State after leaving it.
    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 requires the Requested State to use its best 
efforts to effect service of any documents relating to or 
forming part of a request under the Treaty. The article further 
requires that any request for the service of a document 
inviting a person to appear in the territory of the Requesting 
State be transmitted by the Requesting State a reasonable time 
before the scheduled appearance. The Requested State is 
required to return proof of service.
    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 the Requested State. 
If required by the Central Authority of the Requesting State, 
the article further provides for the certification (using Form 
B appended to the Treaty) by every official of the Requested 
State who has had custody of a seized item of the continuity of 
custody, its identity, and the integrity of its condition. No 
further certification is required under the Treaty, and any 
such certificates shall be admissible in evidence in the 
Requesting State as proof of the truth of the matters set forth 
therein. In addition, Article 15 provides that the Central 
Authority of the Requested State may impose conditions on the 
transfer of the seized items to protect third-party interests 
in the property.
    Article 16 obliges the Requesting State to return to the 
Requested State as soon as possible any documents, records, or 

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