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T.Doc.104-22 EXTRADITION TREATY WITH BOLIVIA ...
104th Congress 1st SENATE Treaty Doc. Session 104-21 _______________________________________________________________________ TREATY WITH AUSTRIA 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 AUSTRIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT VIENNA ON FEBRUARY 23, 1995 <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 Austria on Mutual Legal Assistance in Criminal Matters, signed at Vienna on February 23, 1995. I transmit also, for the information of the Senate, the report of the Department of State with respect to the Treaty. The Treaty is one of a series of modern mutual legal assistance treaties being negotiated by the United States in order to counter criminal activity more effectively. The Treaty will enhance our ability to investigate and prosecute a wide variety of offenses, including drug trafficking, violent crimes, and ``white-collar'' crimes. 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 the 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. The President: I have the honor to submit to you the Treaty between the Government of the United States of America and the Government of the Republic of Austria on Mutual Legal Assistance in Criminal Matters (the ``Treaty''), signed at Vienna on February 23, 1995. 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 Korea, Nigeria, 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 mutual legal assistance treaties. It will enhance our ability to investigate and prosecute a variety of offenses, including violent crimes, drug trafficking, 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. The scope of the Treaty includes not only criminal offenses, but also forfeiture proceedings. Moreover, the article declares that dual criminality is not required for assistance to be provided under the Treaty, except that a request may be denied when there is no dual criminality and execution of the request would require a court order for search and seizure or other coercive measures. 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, except when the Requested State exercises its discretion to deny requests in cases involving coercive measures, bearing in mind the requirement that the Requested State make every effort to approve requests necessitating coercive measures. Furthermore, Article 1 requires the Requested State to grant assistance where the facts stated in the request ``establish a reasonable suspicion that the conduct described, if it had occurred in the Requested State, would constitute an offense under its laws.'' Article 1 also provides that assistance requests in fiscal offense cases shall not be refused on the ground that the law of the Requested State does not impose the same kind of tax or duty, or does not contain tax, duty, customs or exchange regulations of the same kind as the law of the Requesting State. Finally, Article 1 makes clear that the Treaty is designed to be utilized only by governmental authorities or institutions 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 such persons as the Attorney General designates. For the Republic of Austria, the Central Authority is the Federal Minister of Justice or such persons as the Federal Minister of Justice designates. Article 2 provides that each Central Authority shall make and receive requests on behalf of authorities which by law are responsible for investigations or prosecutions related to criminal matters, that each Central Authority shall make only such requests as it considers and approves (with discretion to screen out minor cases), and that the Central Authorities shall communicate directly between each other for purposes of the Treaty. Article 3 sets forth the circumstances (in addition to those in Article 1) under which the Requested State may deny assistance under the Treaty. A request may be denied if it relates to a political offense, or 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 security or other 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 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 additional information to be provided to the extent necessary and possible to assist in locating individuals and effecting particular types of assistance. All requests and supporting documents shall be in the language of the Requested State. In urgent situations, the Central Authority of the Requested State may accept a request that is not in writing, but such requests must be confirmed in writing within ten days unless the Central Authority agrees otherwise. 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. Requests are to be executed in accordance with the laws of the Requested State except to the extent the Treaty provides otherwise, and the courts of the Requested State shall have authority to issue such orders to execute requests under the Treaty as are authorized under the law of the Requested State with respect to proceedings in domestic investigations and prosecutions. 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, jeopardize the security of a person, or impose an extraordinary burden on the resources of that State, it may postpone execution or, after consultations with the Requesting State, impose conditions on such execution. 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 5 also requires a Requested State to provide a status report on a request in progress and promptly inform the Central Authority of the Requesting State of the outcome of the request. If execution of a request is delayed or denied, the Requested State must inform the Requesting State of the reasons. Article 6 approptions between the two States the costs incurred in executing a request. Generally, the Requested State shall pay all costs, except for the following items to be paid by the Requesting State: fees of expert witnesses, travel and subsistence expenses for the travel of persons pursuant to Articles 10 and 12, and costs of translation, interpretation, and transcription. Article 7 provides that the Central Authority of the Requested State may require that any information or evidence obtained under the Treaty may not be used for investigations, proceedings, or prosecutions other than those described in the request without prior consent of the Requested State. In the case of fiscal offenses, such use shall only be made with prior consent of the Requested State, except in related customs duty, excise, and tax proceedings. If the Requested State requests that information or evidence furnished be kept confidential subject to conditions specified by its Central Authority, the Requesting State is required to use its best efforts to comply with those conditions. 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 shall compel, if necessary, the appearance, testimony or production of documents or other evidence by a person 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 either to question the person whose testimony is being taken or, if such direct questioning is not permitted, to have questions posed in accordance with applicable procedures in the Requested State. In the event that a person whose testimony or evidence is being taken asserts a basis for not testifying under the laws of the Requesting State, which was not specified in the request, 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 mechanisms for authentication of documentary evidence produced pursuant to the article (including Form A appended to the Treaty) and provides that documents so authenticated shall be admissible in evidence in proceedings in the Requesting State as proof of the truth of the matters set forth therein. Article 9 requires that the Requested State provide the Requesting State with copies of publicly available documents, records, or information recorded in any form in the possession of a governmental or judicial authority in the Requested State. The Requested State may further provide copies of records in the possession of a government department or agency that are not publicly available to the same extent and under the same conditions as it would to its 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 as proof of the truth of the matters set forth therein for official records authenticated in accordance with the provisions of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, dated 5 October 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 Requesting State shall indicate the extent to which the expenses will be paid and may, at the person's request, provide an advance of money to cover expenses through the Embassy or a consulate of the Requesting State. Article 11 provides that a person appearing in the Requesting State pursuant to the Treaty shall not be subject to any civil suit to which the person could not otherwise be subjected, but for the person's presence in the Requesting State, 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 seven days after notification to a person appearing pursuant to the Treaty that his presence is no longer required in the Requesting State or whenever the person voluntarily reenters the Requesting State after having left it. Article 12 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 Central Authorities agree. The article establishes the express authority and the obligation of the receiving State to maintain the person transferred in custody unless otherwise authorized by the sending State. It further obligates the receiving State to return the person to the sending State as soon as circumstances permit or as otherwise agreed by both Central Authorities without the need for extradition proceedings and with the person transferred given credit for time served in the custody of the receiving State. 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 services of any documents relating to or
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