| Home > 107th Congressional Documents > T.Doc.107-13 TREATY WITH BELIZE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ...
T.Doc.107-13 TREATY WITH BELIZE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ...
107th Congress Treaty Doc. SENATE 2d Session 107-12 _______________________________________________________________________ TREATY WITH SWEDEN 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 KINGDOM OF SWEDEN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT STOCKHOLM ON DECEMBER 17, 2001 <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT> July 15, 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 15, 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 Treaty Between the Government of the United States of America and the Government of the Kingdom of Sweden on Mutual Legal Assistance in Criminal Matters, signed at Stockholm on December 17, 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, and 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: locating or identifying persons or items; serving documents; taking the testimony or statements of persons; transferring persons in custody for testimony or other purposes; providing documents, records, and items; executing requests for searches and seizures; assisting in proceedings related to immobilization and forfeiture of assets and restitution; initiating criminal proceedings in the Requested State; and any other form of assistance consistent with the purposes of this Treaty and not prohibited by the laws of the State from whom the assistance is requested. 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 SUBMITTAL ---------- Department of State, Washington, June 10, 2002. The President, The White House. Mr. 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 Kingdom of Sweden on Mutual Legal Assistance in Criminal Matters (``the Treaty''), signed at Stockholm on December 17, 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. This Treaty contains many provisions similar to those in the other treaties and all of the essential provisions sought by the United States. It will enhance our ability to investigate and prosecute a variety of offenses, including terrorism and drug-trafficking offenses, of particular interest of the U.S. law enforcement community. 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 implementing legislation. Article 1 sets out the scope of assistance available under the Treaty. Article 1(2) contains a non-exhaustive list of the major types of assistance to be provided under the Treaty, including locating or identifying persons or items; serving documents; taking the testimony or statements of persons; transferring persons in custody for testimony or other purposes; providing documents, records and items; executing requests for searches and seizures; assisting in proceedings related to immobilization and forfeiture of assets and restitution; initiating criminal proceedings in the Requested State; and any other form of assistance consistent with purposes of this Treaty and not prohibited by the laws of the Requested State. The scope of the Treaty includes not only assistance provided in connection with the investigation and prosecution of offenses, but also in proceedings related to the 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. However, before executing a request that requires transfer of persons in custody pursuant to Article 12, search and seizure pursuant to Article 16, or assistance in forfeiture proceedings pursuant to Article 18, the Requested State may require that the subject offense by punishable under its pedal or administrative laws. 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 which, for the United States is the Attorney General or a person designated by a Attorney General and for Sweden is the Ministry of Justice. Article 2(3) provides that the Central Authority shall make requests on behalf of authorities that by law are responsible for investigations, prosecutions, or proceedings related to criminal matters and lists such authorities for each State. The Article also provides that the Central Authorities are to communicate directly with one another for 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: (a) it relates to an offense under military law that would not be an offense under ordinary criminal law; (b) it relates to a political offense (a term the meaning of which is well-defined in the extradition context and expected to the defined on that basis in connection with mutual assistance); (c) it relates to an offense for which the penalty in the Requesting State is deprivation of liberty for a period of a year or less; (d) its execution would prejudice the security or other essential interests (``ordre public'') of the Requested State; or (e) 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 ofthe Requested State deems necessary. If the Requesting State accepts assistance subject to such conditions, it must comply with them. 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. A request for assistance must be in writing, except that a request may be accepted in another form in urgent situations but would require written confirmation within ten days unless the Central Authority of the Requested State agrees otherwise. The request must be in the language of the Requested State or accompanied by a translation into that language unless agreed otherwise. Article 5 concerns execution of requests. Article 5(1) requires the Central Authority of the Requested State to execute the request promptly or, when appropriate, to transmit it to the authority having jurisdiction to do so. It provides that the competent authorities of the Requested State must do everything in their power to execute a request, and that the courts of the Requested State have authority to issue subpoenas, search warrants, or other orders necessary to execute the request. Under Article 5(2) the Central Authority of the Requested State must make all necessary arrangements for and meet the costs of representation of the Requesting State in the Requested State in any proceedings arising out of an assistance request. Article 5(3) provides that requests are to be executed in accordance with the laws of the Requested State, except to the extent the Treaty provides otherwise. 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. Under Article 5(4), 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, make execution subject to conditions determined to be necessary. If the Requesting State accepts assistance subject to such conditions, it must comply with them. Article 5 additionally requires the Requested State's Central Authority to respond to reasonable inquiries concerning progress toward executing a request; to promptly inform the Requesting State's Central Authority of the outcome of its execution; and, if the request cannot successfully be executed, to inform the Requesting State's Central Authority of the reasons therefor. Article 6 apportions between the two States the costs incurred in executing a request. It provides that the Requested State must pay all costs relating to the execution of a request, except for the following items to be paid by the Requesting State: fees of experts; costs of translation, interpretation and transcription; and the allowances and expenses related to travel of persons either in the Requested State for the convenience of the Requesting State or pursuant to Articles 11, 12 or 13. If, during the execution of a request, it becomes apparent that complete execution will entrail expenses of an extraordinary nature, the Central Authorities must consult to determine the terms and conditions under which execution may continue. Under Article 7, the Requested State may make the execution of a request dependent on the condition that, without the prior consent of its Central Authority, the information or evidence obtained will not be used or transmitted by the authorities of the Requesting State for investigations or proceedings other than those specified in the request. Article 7(2) provides that nothing in the Article precludes the disclosure or use of information or evidence in a criminal proceeding to the extent that there is an obligation to do so under the constitution of the Requesting State. The Requesting State must notify the Requested State in advance of any such use or disclosure. Information or evidence that has been made public in the Requesting State in the normal course of the proceeding for which it was provided or has been disclosed in accordance with Article 7(2) may thereafter be used for any purpose. Article 8 requires the Requested State, if so requested by the Central Authority of the Requesting State, to use its best efforts to keep confidential arequest and its contents. The Central Authority of the Requested State must inform the Central Authority of the Requesting State if the request cannot be executed without breaching such confidentiality. This provides the Requesting State an opportunity to decide whether to pursue the request or to withdraw it in order to maintain confidentiality Further, under Article 8(2), if the Requested State's Central Authority requests that information or evidence furnished under this Treaty be kept confidential or be disclosed only subject to specified conditions, and the Requesting State accepts the information or evidence subject to such conditions, the Requesting State must use its best efforts to comply with them. Article 9 provides that a person in the Requested State from whom evidence is requested pursuant to the Treaty must be compelled, if necessary, to appear and be questioned or give testimony or produce items, including, but not limited to, documents, records, and articles of evidence. A person who gives false testimony, or makes a false certification during the execution of a request, is subject to prosecution and punishment in the Requested State in accordance with the criminal laws of that State. Upon request, the Central Authority of the Requested State is required to furnish information in advance about the date and place of the taking of testimony or evidence pursuant to this Article. Article 9(3) further requires the Requested State to permit the presence of persons designated in the request (such as the accused, counsel for the accused, or other interested persons) during execution of the request and to allow them to question or present questions to be posed to the person giving the testimony or evidence. Pursuant to Article 9(4), a person giving testimony or evidence may assert such claims of immunity, incapacity or privilege as are available under the laws of either State. If a person asserts such a claim under the laws of the Requesting State, the Requested State must rely on the representation of the Central Authority of the Requesting State as evidence of the existence of the immunity, incapacity, or privilege. Where the person's testimony or evidence has been taken in the Requested State, that person may reassert the claim for consideration by the judicial authorities in the Requesting State. Article 9(5) provides that the Requesting State may request that items produced in the Requested State pursuant to Article 9 or Article 16, or that are the subject of testimony taken pursuant to Article 9, be authenticated by an attestation and also that the absence of such items be certified by an attestation. Where such items are business records, the attestation may be (a) by a certificate such as Form A or A-1 appended to the Treaty; (b) by a written summary of testimony containing the essential information sought in Form A or A-1, or (c) by a document containing the essential information required by the Requesting State. Records so authenticated in Sweden, or documentation so attesting to the absence of such records, shall be admissible in evidence in the United States as proof of the truth of the matters set forth therein. Article 10 requires the Requested State to provide the Requesting State with copies of publicly available records in the possession of public authorities in the Requested State. The Requested State may also provide copies of any records, including documents or information in any form, in the possession of public authorities in that State, but not
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