[Senate Treaty Document 107-9]
[From the U.S. Government Publishing Office]
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
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
Authority of the Requested Party that the person's presence is
no longer required, or if the person has left the Requesting
Party and voluntarily returns to it. The Requesting Party's
Central Authority has the discretion to extend the period for
up to fifteen days for good cause.
Article 11 provides for temporary transfer of a person in
custody in one Party to the other Party for purposes of
assistance under the Treaty, on the condition that the person
in question and the Central Authorities of both parties
consent. Under this Article, for example, a witness
incarcerated in the Requested Party may be transferred to the
Requesting Party to have his deposition taken in the presence
of the defendant or a defendant in the Requesting Party may be
transferred for purposes of attending a witness deposition in
the Requested Party. Article 11(2) further establishes both the
express authority and the obligation of the receiving Party to
maintain the person transferred in custody unless otherwise
authorized by the sending Party. The person transferred must be
returned to the custody of the sending Party as soon as
circumstances permit and in any event no later than the date
upon which the person would have been released from custody in
the territory of the sending Party, unless otherwise agreed by
the Central Authorities and the person transferred. The
receiving Party may not require the sending Party to initiate
extradition proceedings for return of the person transferred.
The person transferred also receives credit for time served in
the custody of the receiving Party.
Article 12 requires the Requested Party to use its best
efforts to ascertain the location or identity of persons or
items specified in the request.
Article 13 obligates the Requested Party to use its best
efforts to effect service of any document relating, in whole or
in part, to any request for assistance under the Treaty.
Article 13(2) states that service under this Article shall not
impose any obligation under the law of the Requested Party to
comply withit. A request for service of a document requiring a
person to appear in the Requesting Party 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 14 obligates the Requested Party to execute
requests for search, seizure, and delivery of any item to the
Requesting Party if the request includes the information
justifying such action under the laws of the Requested Party
and it is carried out in accordance with the laws of that
Party. Although dual criminality for exercise of requests is
not generally provided for in the Treaty, Article 14(2) states
that the request may be refused if it relates to conduct in
respect of which powers of search and seizure would not be
exercisable in the territory of the Requested Party in similar
circumstances. This recognizes that Irish law will require a
different method to execute a request on the rare occasion that
dual criminality does not exist. The Article requires, upon
request, that every official who has custody of a seized item
must certify, through the use of Form E appended to the Treaty,
the continuity of custody, the identify of the item, and the
integrity of its condition. No further certification is to be
required and the certificate must be admissible in evidence in
the Requesting Party. Certification may also be provided in any
other form or manner as may be prescribed from time to time by
either Central Authority. Article 14(4) further provides that
the Central Authority of the Requested Party may impose upon
the Requesting Party terms and conditions deemed necessary to
protect third party interests in the item to be transferred.
Article 15 requires Central Authority of the Requesting
Party to return items, including documents, records, or
articles of evidence furnished to it in the execution of a
request as soon as possible unless the Central Authority of the
Requested Party waives their return.
Article 16(1) provides that, if the Central Authority of
one Contracting Party becomes aware that proceeds or
instrumentalities of offenses that may be forfeitable or
otherwise subject to seizure are located in the other 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
whether any action is appropriate in accordance with the laws
of that country. The Central Authority of the Party receiving
such information is required to inform the Central Authority
that provided the information of any action taken.
Article 16(2) obligates the Parties to assist each other to
the extent permitted by their respective laws in proceedings
relating to the forfeiture of the proceeds and
instrumentalities of offenses, which may include action to
temporarily freeze proceeds and instrumentalities pending
further proceedings. Under Article 16(3), the 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 assets, or the proceeds of
their sale, with the other Party, to the extent permitted by
the transferring Party's laws and upon such terms as it deems
appropriate.
Article 17 provides that assistance and procedures provided
in the Treaty do 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, agreement, or practice
that may be applicable.
Article 18 provides that the Central Authorities must
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 19 provides that the Treaty is subject to
ratification and the instruments of ratification are to be
exchanged as soon as possible, whereupon the Treaty enters into
force. Article 19(3) provides that the Treaty applies to
requests presented after the date of its entry into force,
whether the relevant acts or omissions occurred prior to or
after that date. Article 19(4) further provides that either
Party may terminate the Treaty by written notice to the other
Party, termination to take effect six months after the date of
notification. Ongoing proceedings at the time of termination
must nonetheless be completed in accordance with the provisions
of the Treaty.
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,
Colin L. Powell.