[Senate Treaty Document 106-18]
[From the U.S. Government Publishing Office]
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106th Congress Treaty Doc.
2d Session SENATE 106-18
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TREATY WITH THE HELLENIC REPUBLIC 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 THE HELLENIC REPUBLIC ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS, SIGNED AT WASHINGTON ON MAY 25, 1999
February 1, 2000.--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
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U.S. GOVERNMENT PRINTING OFFICE
79-118 WASHINGTON : 2000
LETTER OF TRANSMITTAL
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The White House, February 1, 2000.
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 Hellenic Republic of Mutual Legal Assistance
in Criminal Matters, signed at Washington on May 26, 1999.
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 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
including taking testimony or statements of persons; providing
documents, records, and other items; locating and identifying
persons or items; serving documents; transferring persons in
custody for testimony or other purposes; executing requests for
searches and seizures; assisting in proceedings relating to
immobilization and forfeiture of assets, restitution, 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
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Department of State,
Washington, December 10, 1999.
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 Hellenic Republic on Mutual Legal Assistance
in Criminal Matters (the ``Treaty''), signed at Washington on
May 26, 1999. 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 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 to the United
States law enforcement community with respect to Greece.
The Treaty is designed to be self-executing and will not
require new legislation.
Article 1(2) 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 other items; locating or identifying
persons or items; serving documents; 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, and
collection of fines; 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.
Article 1(3) states that, except as otherwise provided in
the Treaty, assistance shall be provided without regard to
whether the conduct that is the subject of the investigation,
prosecution, or proceeding in the Requesting State 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 of 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 Greece, the Central Authority is the Ministry of
Justice or a person designated by the Minister of Justice. The
Article also provides that the Central Authorities shall
communicate directly with one another for the purposes of the
Treaty.
Article 3(1) sets forth the circumstances under which a
Requested State's Central Authority may deny assistance under
the Treaty. A request may be denied if: (i) it relates to a
political offense or an offense under military law that would
not be an offense under ordinary criminal law, (ii) its
execution would prejudice the security or similar essential
interests of the Requested State, or (iii) 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 such
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 requests under
the Treaty, which must be in writing, and specifies in detail
the information required in each request. In urgent situations,
the Article permits requests to be transmitted by the most
rapid available means. The request shall be confirmed in twenty
days, if necessary. Unless otherwise agreed, the request must
be in the language of the Requested State.
Article 5 requires the Central Authority of the Requested
State to execute the request promptly or, where 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 competent judicial or other authorities of the Requested
State shall have power to issue subpoenas, search warrants, or
other orders necessary to execute the request. The Central
Authority of the Requested State is required to make all
necessaryarrangements for the execution of a request for
assistance on behalf of the Requesting State.
Under Article 5(3), requests are to be executed in
accordance with the laws and procedures of the Requested State
except to the extent that the Treaty provides otherwise.
Procedures specified in the request are to be followed except
to the extent that those procedures cannot lawfully be followed
in the Requested State. Where neither the Treaty nor the
request specifies a particular procedure, the request shall be
executed in accordance with the appropriate procedure under the
laws applicable for criminal investigation or proceedings in
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, impose conditions on execution. If the Requesting State
accepts assistance subject to such 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 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.
Article 5(6) 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 request. Article 5(7) requires the Requested
State's Central Authority to report promptly to the Requesting
State's Central Authority the outcome of its execution and, if
execution of the request is denied, delayed or postponed, to
inform the Requesting State's Central Authority of the reasons
for the denial, 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, including the costs of
representation, except for the following items to be paid by
the Requesting State: fees of expert witnesses, costs of
translation, interpretation, and transcription, and the
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 any investigation, prosecution, or proceeding other than
that 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, and the
Requesting State accepts the information subject to such
conditions, the Requesting State must use its best efforts to
comply with the conditions. The Article does not preclude the
use or disclosure of information or evidence to the extent that
there is an obligation to do so under the constitution of the
Requesting State in a criminal prosecution. The Requesting
State is obliged to notify the Requested State in advance of
any such proposed use or disclosure. Once information is made
public in the Requesting State in accordance with the
provisions of the article, no further limitations on use apply.
Article 8(1) provides that a person in the Requested State
from whom testimony or evidence is requested shall be
compelled, if necessary, to appear and testify or produce
items, including documents, records, and other articles of
evidence.
Article 8(2) 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 pursuant to this Article.
Article 8(3) further requires the Requested State to permit
the presence of persons specified in the request and to permit
them to question the person giving the testimony or evidence.
Specifically, the persons permitted to pose questions are: (i)
two representatives of the Requesting State; (ii) all parties
to the criminal proceeding that is the basis for the request;
(iii) attorneys for the parties; and (iv) support personnel
necessary to the proceeding.
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, Article 8(4)
provides that the testimony or evidence may nonetheless be
taken and the claim made known to the Central Authority of the
Requesting State for resolution by its authorities as soon as
possible.
Finally, in order to ensure admissibility in evidence in
the Requesting State, Article 8(5)provides a mechanism, through
the use of Forms A and B appended to the Treaty, 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 government departments and agencies in the
Requested State. The Requested State may further provide copies
of records or information in any form in the possession of a
government department or agency in that State, but not publicly
available, to the same 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 entirely or in part.
Article 9(3) also provides that, upon request, no further
authentication shall be necessary for admissibility into
evidence in the Requesting State of official records where the
records are authenticated under the provisions of the
Convention Abolishing the Requirement of Legalisation for
Foreign Public Documents of October 5, 1961, or through the use
of Form C appended to the Treaty by the official in charge of
maintaining the records. In like manner, the absence or
nonexistence of such records is, upon request, to be certified
by an official responsible for maintaining similar records
through the use of Form D, which is also appended to the
Treaty. Records authenticated under Article 9(3), Form C, or
Form D shall be admissible in evidence in the Requesting State.
Article 10 provides a mechanism for the Requesting State to
invite the voluntary appearance in its territory of a person
located in the Requested State. Article 10(2) requires the
Requesting State to indicate the extent to which the person's
expenses will be paid. A person who agrees to appear may ask
that the Requesting State advance money to cover these
expenses. This advance may be provided through the Embassy or a
consulate of the Requesting State. Article 10(3) provides that
a person appearing in the Requesting State pursuant to this
Article shall not be subject to service of process, detained,
or subject to any restriction of personal liberty by reason of
any acts or convictions that preceded the person's departure
from the Requested State. Under Article 10(4), any safe conduct
provided for by this Article ceases seven days after the
Central Authority of the Requesting State has notified the
Central Authority of the Requested State that the person's
presence is no longer required, or when the person having left,
has voluntarily returned. The Central Authority of the
Requesting State may extend this safe conduct period for up to
fifteen days if it determines that there is good cause to do
so.
Article 11 provides that a person who is in the custody of
the Requested State and whose presence outside of the Requested
State is sought for purposes of assistance under the Treaty,
shall be transferred from the Requested State for that purpose
if the person consents and the Central Authorities of both
State agree. Under this Article, for example, a witness
incarcerated in the Requested State could be transferred to the
Requesting State to have his deposition taken in the presence
of the defendant.
Article 11(2) provides that a person in the custody of the
Requesting State whose presence in the Requested State is
sought for purposes of assistance under the Treaty may be
transferred from the Requesting State to the Requested State
for that purpose if the person consents and the Central
Authorities of both States agree. For example, a defendant in
the Requesting State could be transferred to attend a witness
deposition in the Requested State.
Article 11(3) further establishes both the express
authority and the obligation of the receiving State of 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 service of the
sentence imposed in the sending State for time served in the
custody of the receiving State.
Article 12 states that the Requested State may authorize
the transit through its territory of a person held in custody,
by the Requesting State or a third State, whose personal
appearance has been requested by the Requesting State in an
investigation, prosecution, or proceeding. The Requested State
shall have the authority and the obligation to keep the person
in custody during transit.
Article 13 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items in the Requested State specified in a request.
Article 14 obligates the Requested State to use its best
efforts to effect service of anydocument relating, in whole or
in part, to a request under the Treaty. A request for the service of a
document requiring a person to appear in the Requesting State must be
transmitted a reasonable time before the scheduled appearance. Proof of
service is to be provided in the manner specified in the request.
Article 15 obligates the Requested State to execute
requests for search, seizure, and transfer of any item to the
Requesting State if the request justifies such action under the
laws of the Requested State. The Article provides that, upon
request, every official who has custody of a seized item is
required to certify, through the use of Form E appended to the
Treaty, the identity of the item, the continuity of the item's
custody and any changes in its condition. No further
certification is required and the Form is admissible in
evidence in the Requesting State. Article 15(3) further
provides that the Central Authority of the Requesting State may
impose upon the Requesting State terms and conditions deemed to
be necessary to protect third-party interests in items to be
transferred.
Article 16 requires the Requesting State's Central
Authority, upon request of its counterpart in the Requested
State, to return, as soon as possible, documents, records or
other articles of evidence obtained in the execution of a
request under the Treaty.
Article 17(1) provides that, if the Central Authority of
one Party becomes aware of proceeds or instrumentalities of
offenses that are located in the other Party and may be
forfeitable or otherwise subject to seizure under the laws of
that Party, it may so inform the Central Authority of that
other Party. If the Party receiving such information has
jurisdiction, it may present this information to its
authorities for a determination as to whether any action is
appropriate. The Central Authority of the Party receiving such
information is required to inform the Central Authority of the
Party that provided the information of the action taken.
Article 17(2) obligates the Parties to assist each other to
the extent permitted by their respective laws in proceedings
relating to forfeiture of proceeds and instrumentalities of
offenses, restitution to victims of crime, and collection of
fines imposed as sentences in criminal prosecutions. Under
Article 17(3), the Contracting Party having custody over
proceeds or instrumentalities of offenses is required to
dispose of them in accordance with its laws. Either Party may
share all or part of such forfeited assets, or the proceeds of
their sale, with the other Contracting party, to the extent not
prohibited by the transferring Party's laws and upon such terms
as it deems appropriate.
Article 18 states that assistance and procedures provided
in the Treaty shall not prevent either Party from granting
assistance to the other Party through the provisions of other
applicable international agreements or through the provisions
of its national laws. The Parties may also provide assistance
pursuant to any bilateral arrangement or practice that may be
applicable.
Article 19 provides that the Central Authorities shall
consult, at times mutually agreed, to promote the most
effective use of the Treaty, and may agree upon such practical
measures as may be necessary to facilitate the Treaty's
implementation.
Article 20 provides that the Treaty is subject to
ratification and will enter into force sixty days after the
exchange of the instruments of ratification. Article 20(3)
provides that the Treaty applies to requests presented after
the date of its entry into force, whether the relevant acts or
omission occurred prior to or after that date. Article 20(4)
further provides that either Party may terminate the Treaty by
written notice to the other Party, with suchtermination to take
effect one year following the date of receipt of the notification.
A Technical Analysis explaining in detail the provisions of
the Treaty is being prepared by the United States negotiating
delegation, consisting of representatives from the Departments
of Justice and State, and will be transmitted separately to the
Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate as soon as
possible.
Respectfully submitted.
Strobe Talbot.