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105th Congress Treaty Doc.
SENATE
1st Session 105-12
_______________________________________________________________________
MUTUAL LEGAL ASSISTANCE TREATY WITH POLAND
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE
REPUBLIC OF POLAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS,
SIGNED AT WASHINGTON ON JULY 10, 1996
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
July 8, 1997.--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, July 8, 1997.
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 Republic of Poland on
Mutual Legal Assistance in Criminal Matters, signed at
Washington on July 10, 1996. 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
should be an effective tool to assist in the prosecution of a
wide variety of crimes, including ``white-collar'' 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: taking of 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 proceedings related to immobilization and
forfeiture of assets, restitution to the victims of crime, 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
----------
Department of State,
Washington, June 18, 1997.
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 Republic of Poland
on Mutual Legal Assistance in Criminal Matters (``the
Treaty''), signed at Washington on July 10, 1996. 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 a number of other countries.
The Treaty with Poland contains all essential provisions
sought by the United States and, indeed, follows closely the
form and content of mutual legal assistance treaties recently
concluded by the United States. It will enhance our ability to
investigate and prosecute a variety of offenses, including
white collar crime and drug trafficking offenses of particular
interest to the U.S. law enforcement community with respect to
Poland. The Treaty is designed to be self-executing and will
not require implementing 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 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 proceedings related to
immobilization and forfeiture of assets, restitution to the
victims of crime 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 directly related to
criminal matters, which may be civil or administrative in
nature.
Article 1 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 is the
Attorney General or a person designated by the Attorney
General. For Poland, the Central Authority is the Minister of
Justice--Attorney General or a person designated by the
Minister of Justice--Attorney General. The article provides
that the Central Authorities shall communicate directly with
one another for the purposes of the Treaty.
Article 3(1) sets forth the limited 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 a crime under ordinary
criminal law, or if the request relates to a political offense.
In addition, a request may be denied if its execution would
prejudice the security or similar essential interests of
theRequested State, or if it is not made in conformity with the Treaty.
Before denying assistance, the Central Authority of the
Requested State is required under Article 3(2) 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 Requested State 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 under Article 3(3) 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
request in emergency situations but requires written
confirmation within ten days thereafter unless the Central
Authority of the Requested State agrees otherwise. Unless
otherwise agreed, the request shall be in the language of the
Requested State.
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
judicial or other competent authorities of the Requested State
shall have authority to issue subpoenas or other orders
necessary to execute the request. The Central Authority of the
Requested State must make all arrangements for and meet the
costs of 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.
If the Central Authority of the Requested State determines that
execution of the request would interfere with an ongoing
investigation, prosecution, or proceeding, 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 conditions, it
shall comply with them.
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.
Article 5 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 delayed or postponed, to
inform the Requesting State's Central Authority of the reasons
for the delay or postponement.
Article 6 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State shall pay all costs, except for the following items to be
paid bythe Requesting State: fees of expert witnesses, costs of
translation and interpretation, the costs of recording by private
parties of testimony or statements (or the costs of preparation by
private parties of written records or videotapes of testimony or
statements), and allowances and expenses related to travel of persons
pursuant to Articles 10 and 11.
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 prior consent. Further, if the Requested State's
Central Authority asks that information or evidence furnished
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 of these
provisions, no further limitations on use apply. Nothing in the
article prevents the use or disclosure of information to the
extent that such information is exculpatory to a defendant in a
criminal prosecution. The Requesting State is obliged to notify
the Requested State in advance of any such proposed disclosure.
Article 8 provides that a person in the Requested State
from whom testimony or evidence is requested pursuant to the
Treaty shall be compelled, if necessary, to appear and testify
or produce items and articles of evidence. 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.
Article 8(3) further requires the Requested State to permit
the presence of persons specified in the request (such as the
accused, counsel for the accused, or other interested persons)
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 right to decline to provide
testimony or evidence under the laws of the Requesting State,
Article 8(4) provides that the testimony or evidence shall be
taken and the claim made known to the Central Authority of the
Requesting State for resolution by its authorities.
Finally, in order to ensure admissibility in evidence in
the Requesting State, Article 8(5) provides, through the use of
Forms A and B appended to the Treaty, a mechanism for
authenticating evidence that is produced pursuant to or that is
the subject of testimony taken in the Requested State (or
certifying its absence or nonexistence).
Article 9 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of an executive, legislative or judicial
authority in the Requested State. The Requested State may
further provide copies of records or information that are in
the possession of an executive, legislative or judicial
authority in that State, but not publicly available, to the
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 deny such requests
pursuant to this paragraph entirely or in part. Article 9 also
provides that no further authentication shall be necessary for
admissibility into evidence in the Requesting State of official
records where the official in charge of maintaining them
authenticates the records through the use of Form C appended to
the Treaty. In like manner, the absence or nonexistence of such
records is, upon request, to be certified by the use of Form
D,which shall be admissible in evidence in the Requesting State.
Article 10(1) provides a mechanism for the Requesting State
to invite the voluntary appearance in its territory of a person
located in the Requesting State. The Requested State shall
indicate the extent to which the expenses will be paid. Article
10(2) states that a person appearing in the Requesting State
shall not be prosecuted, detained or subjected to any
restriction of personal liberty by reason of any acts or
convictions that preceded that person's departure from the
Requested State. Under Article 10(3), any safe conduct provided
for by this article ceases fifteen days from the date when the
person's presence is no longer required, and that person,
having had an opportunity to leave, has remained in the
Requesting State 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 to the Requesting State for
purposes of assistance under the Treaty (for example, a witness
incarcerated in the Requested State may be transferred to the
Requesting State 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 Requested 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 authorized
by the sending State. 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 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items specified in a request.
Article 13 obligates the Requested State to use its best
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