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T.Doc.107-10 AGREEMENT WITH RUSSIAN FEDERATION CONCERNING POLAR BEAR POPULATION ...
107th Congress Treaty Doc. SENATE 2d Session 107-9 _______________________________________________________________________ TREATY WITH IRELAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF IRELAND ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON JANUARY 18, 2001 <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT> July 11, 2002.--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 __________ U.S. GOVERNMENT PRINTING OFFICE 99-118 WASHINGTON : 2002 LETTER OF TRANSMITTAL ---------- The White House, July 11, 2002. 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 Agreement between the Government of the United States of America and the Government of Ireland on Mutual Legal Assistance in Criminal Matters, signed at Washington on January 18, 2001. 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 activities more effectively. The Treaty should be an effective tool to assist in the prosecution of a wide variety of crimes, including terrorism, drug trafficking, fraud, and other white-collar 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 the testimony or statements of persons; providing documents, records, and articles of evidence; locating or identifying persons; serving documents; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; identifying, tracing, freezing, seizing, and forfeiting the proceeds and instrumentalities of crime and assistance in related proceedings; and such other assistance as may be agreed. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification. George W. Bush. LETTER OF TRANSMITTAL ---------- Department of State, Washington, June 7, 2002. 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 Ireland on Mutual Legal Assistance in Criminal Matters (``the Treaty''), signed at Washington on January 18, 2001. 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 between the United States and a number of other countries. The Treaty with the Government of Ireland contains all essential provisions sought by the United States, and will enhance our ability to investigate and prosecute a variety of offenses, including terrorism, violent crimes, drug trafficking, and fraud and other white-collar crimes. It will also help expand the coverage of our law enforcement relationships across Europe. The Treaty is designed to be self- executing and will not require new legislation. Article 1 sets forth a non-exhaustive list of the major types of assistance to be provided under theTreaty, including taking the testimony or statements of persons; providing documents, records and articles of evidence; locating or identifying persons; serving documents; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; identifying, tracing, freezing, seizing, and forfeiting the proceeds and instrumentalities of crime and assistance in related proceedings; and such other assistance as may be agreed between the two Central Authorities. The scope of the Treaty includes not only investigation, prosecution and prevention of criminal offenses, but also proceedings related to criminal matters, which may be civil or administrative in nature. Article 1(3) states that, except when required by the laws of the Requested Party, assistance shall be provided without regard to whether the conduct involved would constitute an offense under the laws of the Requested Party. The exception is intended only to recognize that Irish law requires a different method to execute a request on the rare occasions when dual criminality does not exist, i.e. the offense is not punishable in both jurisdictions. Article 1(4) states explicitly that the Treaty does not create a right on the part of any private person 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 Ireland, the Central Authority is the Minister for Justice, Equality and Law Reform or a person designated by the Minister. 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 Party's Central Authority may deny assistance under the Treaty. A request may be denied if the Requested Party is of the opinion that the request, if granted, would impair its sovereignty, security or other essential interests, or would be contrary to important public policy; or if the request relates to an offender who, if proceeded against the law of the Requested Party for the offense for which assistance is requested, would be entitled to be discharged on the grounds of a previous acquittal or conviction. A request may also be denied if it is not made in conformity with the Treaty or relates to an offense that is regarded by the Central Authority of the Requested Party as an offense of a political character (a term the meaning of which is well-defined in the extradition context and expected to be defined on that basis in connection with mutual assistance) or as an offense under its military law that is not also an offense under its ordinary criminal law.. Before denying assistance under Article 3, the Central Authority of the Requested Party is required to consult with its counterpart in the Requesting Party to consider whether 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 these conditions, it must comply with them. Article 4 prescribes the form and content of written requests under the Treaty, specifying in detail the information required in each request. A request for assistance must be in writing, except that a request may be accepted in another form in emergency situations but would require written confirmation within ten days thereafter unless the Central Authority of the Requested Party agrees otherwise. Article 5 concerns execution of requests. Article 5(1) requires the Central Authority of the Requested Party to take whatever steps it deems necessary to execute requests promptly, as empowered by the Treaty or national law, or in accordance with national practice. It provides that Courts of the Requested Party shall have the authority to issue subpoenas, search warrants, or other orders necessary to execute the request. Pursuant to Article 5(2), the Central Authority of the Requested Party must make all necessary arrangements for representation in its territory of the Requesting Party in any proceedings arising out of an assistance request. Under Article 5(3), the method of execution specified in the request shall be followed except to the extent that it is incompatible with the laws and practices of the Requested Party.Under Article 5(4), if the Central Authority of the Requested Party determines that execution of the request would interfere with an ongoing criminal investigation, prosecution, or proceeding under the laws of that Party, or prejudice the safety of any person, it may postpone execution or make execution subject to conditions determined to be necessary after consultations with the Central Authority of the Requesting Party. If the Requesting Party accepts assistance subject to conditions, it must comply with them. Article 5(5) requires the Central Authority of the Requested Party to facilitate the presence in the execution of the request of persons specified in it, in accordance with its national law and practice. Article 5(6) further requires the Requested Party, upon request, to keep confidential any information which might indicate that a request has been made or responded to and to inform the Requesting Party if the request cannot be executed without breaching confidentiality so that the Requesting party can determine the extent to which it wishes the request to be executed. This article also requires the Requested Party's Central Authority to respond to reasonable inquiries by the Requesting Party's Central Authority concerning progress toward execution of a particular request and to inform the latter of any circumstances that are likely to cause a significant delay in responding to the request, the outcome of a request's execution, and the basis for the denial of any request. The article authorizes the Central Authority of the Requested Party to ask the Requesting Party's Central Authority to provide information to enable execution of the request or the undertaking of any steps necessary under its laws and practices to give effect to the request and requires the Central Authority of the Requesting Party to promptly inform the Requested Party's Central Authority of any circumstances that make it inappropriate to proceed with the execution of the request or which require modification of the action requested. Article 6 apportions between the two States the costs incurred in executing a request. It provides that the Requested Party must pay all costs relating to the execution of a request, including the costs of representation, except for the following items to be paid by the Requesting Party: fees of expert witnesses; costs of translation, interpretation and transcription; and allowances and expenses related to travel of persons pursuant to Articles 10 and 11. If, during the execution of a request, it becomes apparent that complete execution will entail expenses of an extraordinary nature, the Central Authorities are to consult to determine the terms and conditions under which execution may continue. Article 7 requires the Requesting Party not to use or disclose information or evidence obtained under the Treaty for any purposes other than those stated in the request without the prior consent of the Requested Party. Article 7(2), however, states that nothing in the Article shall preclude the use or disclosure of information to the extent that there is an obligation to do so under the Constitution of the Requesting Party in a criminal prosecution. The Requesting Party is required to notify the Requested Party in advance of any such proposed disclosure. Article 8 provides that a person in the Requested Party from whom testimony or evidence is requested may be compelled, if necessary, to appear and testify or produce items, including documents, records and articles of evidence. The Central Authority of the Requested Party must, upon request, 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 Party in accordance with its laws and practice to permit the presence of persons specified in the request (such as the accused, counsel for the accused, or other interested persons) during the execution of the request and to allow them to question the person giving the testimony or evidence, either directly or through a legal representative qualified to appear before the courts of the Requested Party. 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 8(4) provides that the testimony or evidence shall be taken and theclaim made known to the Central Authority of the Requesting Party for resolution by the authorities of that Party. Finally, in order to ensure admissibility in evidence in the Requesting Party, Article 8(5) provides a mechanism for authenticating evidence that is produced pursuant to or that is the subject of testimony taken under this Article (or certifying the absence or nonexistence of such evidence) through the use of Forms A and B appended to the Treaty or pursuant to such other form or manner as may be prescribed from time to time by either Central Authority. Article 9 requires the Requested Party to provide the Requesting Party with copies of publicly available records in the possession of government departments and agencies in the Requested Party. The Requested Party may also 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 such copies would be available to its own law enforcement or judicial authorities. The Requested Party has the discretion to deny requests for such non-public documents, entirely or in part. Article 9 also provides that no further authentication shall be necessary for admissibility into evidence in the Requesting Party of official records provided pursuant to this Article if, upon request, the records are authenticated under the provisions of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, or by an official competent to do so through the use of Form C appended to the Treaty, or pursuant to such other form or manner as may be prescribed from time to time by either Central Authority. The absence or nonexistence of such records is, upon request, to be certified by the use of Form D, which must also be admissible in evidence in the Requesting Party. Article 10(1) provides a mechanism for the Requesting Party to invite the voluntary appearance in its territory of a person located in the Requested Party. The Requesting Party must indicate the extent to which the expenses will be paid. Article 10(2) provides that the Central Authority of the Requesting Party has the discretion to determine that a person appearing in the Requesting Party 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 the person's departure from the Requested Party. Under Article 10(3), any safe conduct provided for by this Article ceases seven days after the Central Authority of the Requesting Party has notified the Central
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