U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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79–118

" ! SENATE 106TH CONGRESS

2d Session

TREATY DOC.

2000

106–17

TREATY WITH FRANCE 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 FRANCE ON MUTUAL

LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT PARIS

ON DECEMBER 10, 1998

JANUARY 31, 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

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, January 31, 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

France on Mutual Legal Assistance in Criminal Matters, signed at

Paris on December 10, 1998. I transmit also, for the Senate’s information, an explanatory note agreed between the Parties regarding

the application of certain provisions. The report of the Department

of State with respect to the Treaty is enclosed.

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 selfexecuting.

The Treaty provides for a broad range of cooperation in criminal

matters. Mutual assistance available under the Treaty includes: obtaining the testimony or statements of persons; providing documents, records, and items of evidence; 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 rendering 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.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, December 14, 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 France on Mutual Legal Assistance in Criminal

Matters (the ‘‘Treaty’’), signed at Paris on December 10, 1998. I recommend that the Treaty be transmitted to the Senate for its advice

and consent to ratification. Accompanying the Treaty is an explanatory note between the Parties regarding the application of certain

provisions. I recommend that this note be transmitted for the information of the Senate.

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 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

U.S. law enforcement community with respect to France. The Treaty is designed to be self-executing and will not require new legislation.

Article 1(1) establishes the Parties’ obligation to afford each

other the widest measure of mutual assistance in criminal investigations or proceedings. Article 1(2) limits the scope of the treaty,

setting forth the circumstances under which the Treaty does not

apply. These circumstances include: the execution of requests for

provisional arrest and extradition, the enforcement of criminal

judgments except for forfeiture decisions referred to in Article 11,

or offenses under military law that do not constitute offenses under

ordinary criminal law.

Article 1(3) states explicitly that the Treaty is not intended to affect the exercise of rights otherwise available to private persons

under the laws of the State presented with a claim based on rights.

In the explanatory note on the Treaty, the Parties agreed that, for

the United States, the Treaty does not create a new right for private persons to obtain assistance, to suppress or exclude any testimony or evidence, or to impede the execution of a request.

Article 2(1) 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 France, the Central Authority is the Ministry of Justice. The Central Authorities
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shall communicate directly with one another for the purposes of the

Treaty.

Article 2(2) states that the Central Authorities are obligated to

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, in particular those related to the implementation of Article 9.

Under Article 2(3), the Central Authorities are required to provide each other with information regarding the execution of requests, and to respond to inquiries regarding progress toward execution of specific requests.

Article 3 provides that the requests from Central Authorities

shall emanate from competent authorities. For the United States,

the competent authorities are prosecutors and authorities with

statutory or regulatory responsibility for investigations of criminal

offenses, including the referral of matters to proseuctors for criminal prosecution. During the negotiation of Article 3, the Parties

agreed not to attempt to list exhaustively in the Treaty the numerous state and federal authorities in the United States that fall

under the definition of ‘‘competent authorities,’’ particularly because the inadvertent omission of one from the list could diminish

the value of the Treaty to the United States. The explanatory note

does set forth an illustrative short list of such authorities, however.

To facilitate the identification of competent authorities of the

United States by France, Article 3 provides that the presentation

by the U.S. Central Authority of a request coming from a competent authority establishes the competence of those authorities.

Article 3 further states that the competent authorities for France

are the judicial authorities including the public prosecutor.

Article 4 prescribes the form and content of requests under the

Treaty, specifying in detail the information required in each request. Requests for assistance shall be in writing. Where appropriate, the Requesting State may indicate any time limit within

which the assistance should be provided.

Article 5 establishes a mechanism for transmission of requests.

The Central Authority of the Requesting State is required to send

requests to the Central Authority of the Requested State. The results of execution shall be returned through the same channel unless the Central Authorities agree otherwise. In urgent situations,

an advance copy of a request may be transmitted by any means,

including Interpol. Thereafter, the Central Authority of the Requesting State is required to transmit the original request to the

Central Authority of the Requested State.

Article 6(1) sets forth the circumstances under which the Requested State may deny legal assistance. A request may be denied

if: (i) the offense to which the request relates is a political offense

or an offense related to a political offense; or (ii) execution of the

request would prejudice its sovereignty, security, public order, or

other essential interests.

Before denying assistance, 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 of the Requested State

deems necessary. If the Central Authority of the Requested State
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denies assistance, it is required under Article 6(3) to inform the

Central Authority of the Requesting State of the reason for denial.

Under Article 7, if the Central Authority of the Requested State

determines that execution of the request would interfere with an

ongoing criminal investigation or proceeding in that State, it may,

after consulting with the Central Authority of the Requesting

State, postpone execution or impose conditions on it. If the Requesting State accepts assistance subject to the conditions, it shall

comply with them.

Article 8 establishes a mechanism for execution of requests,

which, in accordance with Article 8(1), is to occur in accordance

with the provisions of the Treaty and the laws of the Requested

State. Article 8(2) states that the Central Authority of the Requested State is required to make all necessary arrangements for

a request to be presented to its competent administrative and judicial authorities for execution. Administrative and judicial authorities charged with the execution of a request are obligated to use

all necessary measures available under the laws of the Requested

State to provide necessary or useful forms of assistance that are

not prohibited by its laws.

Article 8(3) provides that a person giving testimony or evidence

in the Requested State may assert such claims of immunity, incapacity, or privilege as are available under the Requested State’s

laws. The testimony of a person who asserts a claim under the laws

of the Requesting State shall be taken and the claim recorded and

preserved for consideration by the judicial authorities of the Requesting State. If, within a reasonable time prior to giving testimony or evidence, the person notifies the executing authority of the

Requested State of the intention to assert such a claim, the Central

Authorities may consult with respect to it.

Under Article 8(4), a person who gives false testimony in the execution of a request shall be subject to prosecution and punishment

in the Requested State in accordance with its laws.

Article 9(1) provides that, if the Requesting State requests, the

Requested State shall inform it of the dates and places of the execution of the request. It further provides that the Requested State

may permit the authorities and persons designated by the Requesting State to be present at, and assist in, the execution of the request, including the taking of depositions for use in a judicial proceeding in the Requesting State, subject to Articles 6 and 7.

According to the explanatory note on the Treaty, Article 9(1) sets

forth the principle that, with the consent of the Requested State,

persons designated by the Requesting State are allowed to travel

to the territory of the Requested State to be present and to assist

during the execution of a request. The request for legal assistance

should request the presence of these persons. This paragraph also

commits the two Parties to accommodate such a request so that the

deposition obtained in the Requested State may be used in the Requesting State in compliance with its internal procedure. This commitment does not preclude that, in certain cases, which in practice

shall be most exceptional, the authority entrusted with the execution of the request may determine that the presence and assistance

of the designated persons are not possible in a specific case.
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Article 9(2) sets forth in detail certain procedures for execution

of a request, which are to be carried out as outlined in the request

insofar as they are not contrary to the fundamental principles of

a judicial proceeding in the Requested State. Article 9(3) states

that, upon request by the Requesting State, the Requested State

shall transmit original documents or records to the extent possible;

otherwise, the Requested State shall transmit true copies. Article

9(4) provides that business records shall be produced together with

a certificate or proce`s-verbal following the requirements of Form A

appended to the Treaty, and that such records shall be admissible

in evidence in the Requesting State.

Article 10 obligates the Requested State to execute requests for

the search, seizure, and delivery of any item to the Requesting

State if the request includes the information justifying such action

under the laws of the Requested State. It provides that, if the Requesting State requests, a competent authority in the Requested

State shall provide a certificate or proce`s-verbal that: (i) identifies

the item seized; (ii) identifies every official who has had custody of

the item seized; and (iii) describes the circumstances of custody.

Article 10 further provides that if, after seizure, any transfer of

custody of or material change in the item seized occurs, the competent authority in the Requested State is required to provide an

additional certificate or proce`s-verbal that describes the circumstances of such transfer of custody or material change. No further proof of the identity of the item, the continuity of custody, or

the integrity of its condition is required. The certificates or proce`sverbaux shall be admissible in evidence in the Requesting State as

proof thereof.

Article 11 establishes a mechanism for providing assistance for

proceedings related to the forfeiture of proceeds or instrumentalities of criminal offenses. Article 11(2) provides that, upon the request of the Requesting State, the Requested State is obligated to

take appropriate measures to locate and identify proceeds or instrumentalities of offenses within the Requested State. The request

must specify the reasons for believing that proceeds or instrumentalities are within the Requested State. The Requested State is required to inform the Requesting State of the results of its inquiry.

Article 11(3) states that, at the request of the Requesting State, the

Requested State may take protective measures to immobilize temporarily proceeds or instrumentalities to ensure their availability

for forfeiture. Article 11(4) provides that, at the request of the Requesting State, the Requested State may execute a final decision

of forfeiture pronounced by judicial authorities of the Requesting

State. The execution of such a request shall be in accordance with

the laws of the Requested State.

Under Article 11(5), the Requested State that executes a final

forfeiture decision shall dispose of the forfeited proceeds and instrumentalities in accordance with its laws. As it determines appropriate, the Requested State also may transfer all or part of such

assets, or the proceeds of their sale, to the Requesting State. Article 11 further provides that, insofar as cooperation between the two

States contributed to a final forfeiting decision, the forfeiture State,

to the extent permitted by its laws and upon such terms as
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it deems to be appropriate, may transfer all or part of such assets,

or the proceeds of their sale, to the other State.

Article 12 permanently transfers to the Requesting State articles

of evidence, including original documents and records, that are

transmitted pursuant to a request, unless the Requested State asks

at the time of transmission for their return. Article 12 provides further that the Requested State may require that the Requesting

State agree to terms and conditions for the care and return of articles of evidence deemed to be necessary to protect third-party interests.

Article 13 obligates the States to assist each other to facilitate

restitution to the extent permitted by their respective laws.

Article 14(1) requires the Requested State to use its best efforts

to keep confidential a request and its contents if such confidentiality is requested by the Central Authority of the Requesting

State. If the request cannot be executed without a breach of confidentiality, the Central Authority of the Requested State shall inform the Central Authority of the Requesting State, which will

then determine whether the request should nevertheless be executed.

Under Article 14(2), the Central Authority of the Requested

State may request that information or evidence furnished under

the Treaty be kept confidential or be used only subject to terms

and conditions it may specify. If the Requesting State accepts the

information or evidence subject to such conditions, the Requesting

State must use its best efforts to comply with the conditions.

Article 14(3) further permits the Central Authority of the Requested State to request that the Requesting State not use any information or evidence obtained under this Treaty in any investigation or proceeding other than that described in the request without

the prior consent of the Requested State. Under such circumstances, the Requesting State shall comply with the condition.

Article 14(4) states that nothing in Article 14 shall preclude the

use or disclosure of information or evidence to the extent that an

obligation to do so in a criminal proceeding exists, for the United

States under its Constitution or for France under its Constitution

and general principles of its law having Constitutional value. To

the extent possible, the Requesting State shall notify the Requested

State in advance of any such use or disclosure.

Under Article 14(5), information and evidence obtained under the

conditions referred to in Articles 14(2) or 14(3) may be used for any

purpose if they have been made public within the framework of the

proceeding for which they were transmitted to the Requesting

State.

Article 15 establishes a mechanism for service of procedural documents and judicial decisions. Under Article 15(2), service may be

effected by simple transmission of the document or decision to its

addressee. If the Requesting State requests, the Requested State

shall serve the document using a method provided by or compatible

with its laws. Article 15(3) provides that proof of service consists

of a receipt dated and signed by the addressee or a statement by

the Requested State noting the fact, the method, and the date of

service. Either of these documents shall be sent immediately to the
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Requesting State. If service could not be effected, the Requested

State shall inform the Requesting State immediately of the reason.

Article 15(4) further requires the Central Authority of the Requesting State to transmit a document requiring the appearance of

a person in the Requesting State to the Central Authority of the

Requested State at least 50 days before the date of the scheduled

appearance. Upon the request of the Requesting State, the Central

Authority of the Requested State may waive this requirement for

persons other than defendants.

Article 16(1) provides a mechanism for inviting the voluntary appearance of a person in the Requested State’s territory. Article

16(2) requires such a request to mention the approximate amount

of the invited person’s travel and subsistence costs to be reimbursed. Upon the person’s request, the Requesting State may advance part or all of the funds to pay those expenses through its diplomatic or consular missions in the Requested State. Article 16(3)

states that a witness or expert who has been served and who fails

to comply with a document requiring an appearance in the Requesting State shall not be subjected to any sanction or measure

of restraint, unless the person subsequently travels voluntarily to

the Requesting State, is duly served, and again fails to comply.

Article 17(1) provides that a witness or expert appearing in the

Requesting State in response to a request shall not be subject to

service of process, prosecuted, detained, or subjected to any other

restriction of personal liberty in that State based on any prior acts

or convictions unless the Requesting State’s Central Authority limits such safe conduct. Any such limitation of safe conduct shall be

communicated to the witness or expert at the time the witness or

expert is invited to appear.

Under Article 17(2), a person appearing in the Requesting State

in response to a document served to answer for acts for which that

person is the subject of a criminal investigation or prosecution,

shall not be prosecuted, detained, or subjected to any other restriction of personal liberty for any prior acts or convictions.

Article 17(3) provides that the safe conduct provided for by this

Article ceases if the person, being free to leave, has not left the Requesting State within a period of fifteen consecutive days after

being officially advised that the person’s presence was no longer

necessary, or, having left, has returned.

Article 18 provides that, upon the request of either State, a person who is in custody in either State may be temporarily transferred to the receiving State to give testimony or evidence or other

assistance in investigations or proceedings in relation to a criminal

matter. Article 18(2) sets forth the circumstances under which a

transfer may be denied: (i) if the person in custody does not consent; (ii) if the person’s period of detention might be thereby extended; (iii) if the person’s presence is required for ongoing criminal

proceedings; or (iv) for reasons of safety, security, or other imperative concerns. Article 18(3) establishes both the express obligation

and the authority of the receiving State to maintain the person

transferred in custody unless the sending State authorizes the person’s release.

Article 18(4) provides that the receiving State shall require no

proceeding to effect the return to the sending State of the person
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transferred. The return is required to occur by the date specified

by the sending State. This period may be extended by agreement

between both States. Article 18(5) obligates the sending State to

deduct from the transferred person’s sentence any time that the

person serves in the custody of the receiving State. Article 18(6)

provides that a person appearing in either State pursuant to Article 18 may receive the safe conduct authorized under Article 17.

Article 19 provides that, upon the request of the Requesting

State, 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 to give testimony or evidence or otherwise provide assistance in investigations or proceedings in relation to a

criminal matter. The Requested State shall have the obligation and

the authority to keep the person in custody during transit.

Article 20(1) requires that the Requested State, upon request,

provide copies of records that are in the possession of its judicial

or government authorities and that are accessible to the public.

Under Article 20(2), the Requested State may provide copies of

records that are in the possession of its judicial authorities or government departments or agencies but that are not accessible to the

public, to the same extent and under the same conditions that

would apply to its own competent authorities in obtaining such copies. The Requested State has discretion to deny a request with respect to the latter category entirely or in part.

Article 20(3) further provides that official records produced pursuant to this Article and certified by a competent authority of the

Requested State as official records or copies shall be admissible in

evidence in the Requesting State. No further authentication shall

be necessary.

Article 21 obligates the Requesting State to translate the request

and any supporting documents into the language of the Requested

State.

Under Article 22, except as otherwise provided by the Treaty,

evidence, in whatever form, transmitted pursuant to the Treaty

shall be exempt from all legalization formalities.

Article 23 apportions between the two States the costs incurred

in executing a request. It requires the Requested State to meet the

costs of executing requests except for: (i) the allowances and expenses related to travel of witnesses and experts pursuant to Article 16 and the travel of persons in custody pursuant to Articles 18

and 19; (ii) the costs of interpretation and translation; (iii) the costs

of services provided by private parties at the request of the Requesting State; (iv) and the fees of experts needed to fulfill a request. If during the execution of a request it becomes apparent that

execution will entail expenses of an extraordinary nature, the Central Authorities are obligated to consult to determine the terms and

conditions according to which execution may continue.

According to the explanatory note on the Treaty, in order to minimize the expense of obtaining depositions in the United States, the

United States Government will arrange and pay for audio recordings of depositions requested by French authorities and their transmission to French authorities. On the other hand, the costs of services furnished by private parties, such as those resulting from the
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transcription of depositions by a court reporter, will be paid by

French authorities.

Under Article 24, each State may provide to the other State information and evidence relating to criminal acts and may request

that the other State submit the information and evidence to its

competent authorities for criminal investigation and prosecution

where both States have jurisdiction to investigate and prosecute

those acts. Such requests shall be transmitted through the respective Central Authorities. The Requested State shall consider initiating an investigation or prosecution as appropriate under its laws.

The Requested State is required to notify the Requesting State of

any action taken pursuant to the request and to transmit a copy

of any decision rendered.

Article 25 states that each State shall notify the other of the

completion of the procedures required for the entry into force of the

Treaty. The Treaty shall enter into force on the first day of the second month following the date of receipt of the latter of these notifications.

Article 26 provides that either State may terminate the Treaty

at any time by forwarding through the diplomatic channel written

notice of termination. Termination takes effect six months after receipt of 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,

MADELEINE ALBRIGHT.
(1)
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