U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON :

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79–118

SENATE" !106TH CONGRESS

1st SessionTREATY DOC.

1999

106–16

TREATY WITH UKRAINE ON MUTUAL LEGALASSISTANCE IN CRIMINAL MATTERS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATESTRANSMITTING

TREATY BETWEEN THE UNITED STATES OF AMERICA ANDUKRAINE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MAT-TERS WITH ANNEX, SIGNED AT KIEV ON JULY 22, 1998, ANDWITH AN EXCHANGE OF NOTES SIGNED ON SEPTEMBER 30,1999, WHICH PROVIDES FOR ITS PROVISIONAL APPLICATION

NOVEMBER 10, 1999.—Treaty was read the first time, and together withthe accompanying papers, referred to the Committee on Foreign Rela-tions and ordered to be printed for the use of the Senate.

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LETTER OF TRANSMITTAL

THE WHITE HOUSE, November 10, 1999.To the Senate of the United States:

With a view to receiving the advice and consent of the Senate toratification, I transmit herewith the Treaty Between the UnitedStates of America and Ukraine on Mutual Legal Assistance inCriminal Matters with Annex, signed at Kiev on July 22, 1998. Itransmit also, for the information of the Senate, an exchange ofnotes which was signed on September 30, 1999, which provides forits provisional application, as well as the report of the Departmentof State with respect to the Treaty.

The Treaty is one of a series of modern mutual legal assistancetreaties being negotiated by the United States in order to countercriminal activities more effectively. The Treaty should be an effec-tive tool to assist in the prosecution of a wide variety of crimes, in-cluding drug trafficking offenses. The Treaty is self-executing. Itprovides for a broad range of cooperation in criminal matters. Mu-tual assistance available under the Treaty includes: taking of testi-mony or statements of persons; providing documents, records, andarticles of evidence; serving documents; locating or identifying per-sons; transferring persons in custody for testimony or other pur-poses; executing requests for searches and seizures; assisting inproceedings related to restraint, confiscation, forfeiture of assets,restitution, and collection of fines; and any other form of assistancenot prohibited by the laws of the requested state.

I recommend that the Senate give early and favorable consider-ation to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

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LETTER OF SUBMITTAL

DEPARTMENT OF STATE,Washington, October 19, 1999.

The PRESIDENT,The White House.

THE PRESIDENT: I have the honor to submit to you the Treaty Be-tween the United States of America and Ukraine on Mutual LegalAssistance in Criminal Matters with Annex (‘‘the Treaty’’), signedat Kiev on July 22, 1998. I recommend that the Treaty be trans-mitted to the Senate for its advice and consent to ratification.

Also enclosed, for the information of the Senate, is an exchangeof notes under which the Treaty is being provisionally applied tothe extent possible under our respective domestic laws, in order toprovide a basis for immediate mutual assistance in criminal mat-ters. Provisional application would cease upon entry into force ofthe Treaty.

The Treaty covers mutual legal assistance in criminal matters.In recent years, similar bilateral treaties have entered into forcewith a number of other countries. The Treaty with Ukraine con-tains all essential provisions sought by the United States. It willenhance our ability to investigate and prosecute a range of of-fenses. The Treaty is designed to be self-executing and will not re-quire new legislation.

Article 1 sets forth a non-exclusive list of the major types of as-sistance to be provided under the Treaty, including taking the tes-timony or statements of persons; providing documents, records andother items of evidence; locating or identifying persons or items;serving documents; transferring persons in custody for testimony orother purposes; executing requests for searches and seizures; as-sisting in proceedings related to immobilization and forfeiture ofassets, restitution, and collection of fines; and, rendering any otherform of assistance not prohibited by the laws of the RequestedState. The scope of the Treaty includes not only criminal offenses,but also proceedings related to criminal matters, which may becivil or administrative in nature.

Article 1(3) states that assistance shall be provided without re-gard to whether the conduct involved would constitute an offenseunder the laws of the Requested State.

Article 1(4) states explicitly that the Treaty is not intended tocreate rights in private parties to obtain, suppress, or exclude anyevidence, or to impede the execution of a request.

Article 2 provides for the establishment of Central Authoritiesand defines Central Authorities for purposes of the Treaty. For theUnited States, the Central Authority shall be the Attorney General

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or a person designated by the Attorney General. For Ukraine, theCentral Authority shall be the Ministry of Justice and the Officeof the Prosecutor General. The article provides that the CentralAuthorities shall communicate directly with one another for thepurposes of the Treaty.

Article 3 sets forth the circumstances under which a RequestedState’s Central Authority may deny assistance under the Treaty. Arequest may be denied if it relates to a military offense that wouldnot be an offense under ordinary criminal law. A further ground fordenial is that the request relates to a political offense (a term ex-pected to be defined on the basis of that term’s usage in extraditiontreaties). In addition, a request may be denied if its executionwould prejudice the security or similar essential interests of theRequested State, or if it is not made in conformity with the Treaty.

Before denying assistance under Article 3, the Central Authorityof the Requested State is required to consult with its counterpartin the Requesting State to consider whether assistance can begiven subject to such conditions as the Central Authority of the Re-quested State deems necessary. If the Requesting State accepts as-sistance subject to these conditions, it is required to comply withthe conditions. If the Central Authority of the Requested State de-nies assistance, it is required to inform the Central Authority ofthe Requesting State of the reasons for the denial.

Article 4 prescribes the form and content of written requestsunder the Treaty, specifying in detail the information required ineach request. The article permits other forms of requests in emer-gency situations but requires written confirmation within ten daysthereafter unless the Central Authority of the Requested Stateagrees otherwise.

Article 5 requires the Central Authority of the Requested Stateto execute the request promptly or to transmit it to the authorityhaving jurisdiction to do so. It provides that the competent authori-ties of the Requested State shall do everything in their power toexecute a request, and that the courts or other competent authori-ties of the Requested State shall have authority to issue subpoenas,search and arrest warrants, or other orders necessary to executethe request. The Central Authority of the Requested State mustmake all arrangements for representation of the Requesting Statein any proceedings arising out of an assistance request.

Under Article 5(3), requests are to be executed in accordancewith the laws of the Requested State except to the extent that theTreaty provides otherwise. However, the method of execution speci-fied in the request is to be followed except insofar as it is prohib-ited by the laws of the Requested State.

Article 5(4) provides that if the Central Authority of the Re-quested State determines that execution of the request would inter-fere with an ongoing criminal investigation, prosecution, or pro-ceeding in that State, it may postpone execution or, after con-sulting with the Central Authority of the Requesting State, imposeconditions on execution. If the Requesting State accepts assistancesubject to the conditions, it shall comply with such conditions.

Article 5(5) further requires the Requested State, if so requested,to use its best efforts to keep confidential a request and its con-tents, and to inform the Requesting State’s Central Authority if the

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request cannot be executed without breaching confidentiality. Thisprovides the Requesting State an opportunity to decide whether topursue the request or to withdraw it in order to maintain confiden-tiality.

This article additionally requires the Requested State’s CentralAuthority to respond to reasonable inquiries by the RequestingState’s Central Authority regarding the status of the execution ofa particular request; to report promptly to the Requesting State’sCentral Authority the outcome of its execution; and, if the requestis denied, to inform the Requesting State’s Central Authority of thereasons for the denial.

Article 6 apportions between the two States the costs incurred inexecuting a request. It provides that the Request State shall payall costs, except for the following items to be paid by the Request-ing State: fees of expert witnesses, costs of interpretation, trans-lation and transcription, and allowances and expenses related totravel of persons pursuant to Articles 10 and 11. If during the exe-cution of the request, it becomes apparent that extraordinary ex-penses will be entailed, the Central Authorities shall consult to de-termine the terms and conditions under which execution may con-tinue.

Article 7 requires the Requesting State to comply with any re-quest by the Central Authority of the Requested State that infor-mation or evidence obtained under the Treaty not be used for pro-ceedings other than those described in the request without its priorconsent. Further, if the Requested State’s Central Authority asksthat information or evidence furnished under this Treaty be keptconfidential or be used in accordance with specified conditions, theRequesting State must use its best efforts to comply with the condi-tions. Once information is made public in the Requesting State inaccordance with either or these provisions, no further limitationson use apply. Nothing in the article prevents the use or disclosureof information to the extent that there is an obligation to do sounder the Constitution of the Requesting State in a criminal pros-ecution. The Requesting State is obliged to notify the RequestingState in advance of any such proposed use or disclosure.

Article 8 provides that a person in the Requesting State fromwhom testimony or evidence is requested pursuant to the Treatyshall be compelled, if necessary, to appear and testify or produceitems, documents and records. The article requires the Central Au-thority of the Requested State, upon request, to furnish informa-tion in advance about the date and place of the taking of testimonyor evidence pursuant to this Article.

Article 8(3) further requires the Requested State to permit thepresence of persons specified in the request and to permit them toquestion the person giving the testimony or evidence. In the eventthat a person whose testimony or evidence is being taken assertsa claim of immunity, incapacity, or privilege under the laws of theRequesting State, Article 8(4) provides that the testimony or evi-dence shall be taken and the claim made known by written notifi-cation to the Central Authority of the Requesting State for resolu-tion by its competent authorities. Finally, in order to ensure admis-sibility of evidence in the Requesting State, Article 8(5) provides a

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mechanism for authenticating evidence that is produced pursuantto or that is the subject of testimony taken in the Requested State.

Article 9 requires that the Requested State provide the Request-ing State with copies of publicly available records in the possessionof government departments and agencies in the Requesting State.The Requested State may further provide copies of any documents,records or information in the possession of a government depart-ment or agency, but not publicly available, to the same extent andunder the same conditions as it would provide them to its own lawenforcement or judicial authorities. The Requested State has thediscretion to refuse to execute, entirely or in part, such requests forrecords not publicly available. Article 9(3) provides that recordsproduced pursuant to this Article shall, upon request, be certifiedby the appropriate form attached to the request. Article 9(3) alsoprovides that no further authentication shall be necessary for ad-missibility into evidence in the Requesting State of official recordspursuant to this Article.

Article 10 provides a mechanism for the Requesting State to in-vite the voluntary appearance in its territory of a person locatedin the Requested State shall indicate the extent to which the ex-penses will be paid. It also states that the Central Authority of theRequesting State has discretion to determine that a person appear-ing in the Requesting State pursuant to this Article shall not besubject to service of process or be detained or subjected to any re-striction of personal liberty by reason of any acts or convictionsthat preceded his departure from the Requested State. Any safeconduct provided for by this article ceases seven days after theCentral Authority of the Requesting State has notified the CentralAuthority of the Requested State that the person’s presence is nolonger required, or if the person has left the Requesting State andvoluntarily returns to it.

Article 11 provides for temporary transfer of a person in custodyin the Requested State or in a third State to the Requesting Statefor purposes of assistance under the Treaty (for example, a witnessincarcerated in the Requested State may be transferred to have hisdeposition taken in the presence of the defendant), provided thatthe person in question and the Central Authorities of both Statesagree. The article also provides for voluntary transfer of a personin the custody of the Requesting State to the Requested State forpurposes of assistance under the Treaty (for example, a defendantin the Requesting State may be transferred for purposes of attend-ing a witness deposition in the Requesting State), if the person con-sents and if the Central Authorities of both States agree.

Article 11(3) further establishes both the express authority andthe obligation of the receiving State to maintain the person trans-ferred in custody unless otherwise agreed by both Central Authori-ties. The return of the person transferred is subject to terms andconditions agreed to by the Central Authorities, and the sendingState is not required to initiate extradition proceedings for returnof the person transferred. The person transferred receives credit fortime served in the custody of the receiving State.

Article 12 establishes the authority of the Requested State to au-thorize transit through its territory of a person held in custody bya third State whose appearance has been requested by the Re-

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questing State. The Requested State further has the authority andthe obligation to keep the person in custody during transit. TheParties retain discretion to refuse to grant transit of their own na-tionals, however.

Article 13 requires the Requested State to use its best efforts toascertain the location or identity of persons or items specified in arequest.

Article 14 obligates the Requested State to use its best efforts toeffect service of any document relating, in whole or in part, to anyrequest for assistance under the Treaty. A request for the serviceof a document requiring a person to appear in the Requesting Statemust be transmitted a reasonable time before the scheduled ap-pearance. Proof of service is to be provided in the manner specifiedin the request.

Article 15 obligates the Requested State to execute requests forsearch, seizure, and delivery of any item to the Requesting Stateif the request includes the information justifying such action underthe laws of the appropriate. The Central Authority of the State re-ceiving such information is required to inform the Central Author-ity that provided the information of any action taken.

Article 17 also obligates the Contracting States to assist eachother to the extent permitted by their respective laws in pro-ceedings relating to forfeiture of the proceeds and instrumentalitiesof offenses, restitution to victims of crime, and collection of finesimposed as sentences in criminal prosecutions. This may includeaction to temporarily immobilize the proceeds or instrumentalitiespending further proceedings. The Contracting State having custodyover proceeds or instrumentalities of offenses is required to disposeof them in accordance with its laws. Either Contracting State maytransfer all or part of such assets, or the proceeds of their sale, tothe extent permitted by the transferring State’s laws and uponsuch terms as it deems appropriate.

Article 18 states that assistance and procedures provided in theTreaty shall not prevent either Contracting State from granting as-sistance to the other Contracting State through the provisions ofother applicable international agreements or through the provi-sions of its national law. The Contracting States may also provideassistance pursuant to any bilateral arrangement, agreement, orpractice which may be applicable.

Article 19 provides that the Central Authorities of the Con-tracting States shall consult, at times mutually agreed, to promotethe most effective use of the Treaty, and may agree upon suchpractical measures as may be necessary to facilitate the Treaty’simplementation.

Article 20 provides that the Treaty is subject to ratification andthe instruments shall be exchanged at Washington as soon as pos-sible. The Treaty enters into force upon the exchange of instru-ments of ratification. Article 20 further provides that either Con-tracting State may terminate the Treaty by written notice to theother Contracting State, with termination to be effective sixmonths following the date of notification.

A Technical Analysis explaining in detail the provisions of theTreaty is being prepared by the United States negotiating delega-tion, consisting of representatives from the Departments of Justice

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and State, and will be transmitted separately to the Senate Com-mittee on Foreign Relations.

The Department of Justice joins the Department of State in fa-voring approval of this Treaty by the Senate as soon as possible.

Respectfully submitted,STROBE TALBOTT.

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