U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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99–118

" SENATE ! 104TH CONGRESS

1st Session

TREATY DOC.

1995

104–21

TREATY WITH AUSTRIA ON MUTUAL

LEGAL ASSISTANCE IN CRIMINAL MATTERS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED

STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC

OF AUSTRIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL

MATTERS, SIGNED AT VIENNA ON FEBRUARY 23, 1995

SEPTEMBER 6, 1995.—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, September 6, 1995.

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

Republic of Austria on Mutual Legal Assistance in Criminal Matters, signed at Vienna on February 23, 1995. 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 activity more effectively. The Treaty will enhance our ability to investigate and prosecute a wide variety of offenses, including drug trafficking, violent crimes, and ‘‘white-collar’’ crimes. The

Treaty is self-executing.

The Treaty provides for a broad range of cooperation in criminal

matters. Mutual assistance available under the Treaty includes; (1)

taking the testimony or statements of persons; (2) providing documents, records, and articles of evidence; (3) serving documents; (4)

locating or identifying persons or items; (5) transferring persons in

custody for testimony or other purposes; (6) executing requests for

searches and seizures; (7) assisting in forfeiture proceedings; and

(8) 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, August 4, 1995.

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 Republic of Austria on Mutual Legal Assistance

in Criminal Matters (the ‘‘Treaty’’), signed at Vienna on February

23, 1995. 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 Argentina, The Bahamas, Canada, Italy, Jamaica, Mexico,

Morocco, the Netherlands, Spain, Switzerland, Thailand, Turkey,

the United Kingdom (concerning the Cayman Islands), and Uruguay. Other similar treaties have been signed and ratified by the

United States (but have not yet entered into force) with Belgium

Colombia, and Panama. In addition, treaties with Korea, Nigeria,

and the United Kingdom have been transmitted to the Senate and

await Senate consideration.

This Treaty contains many provisions similar to those in the

other mutual legal assistance treaties. It will enhance our ability

to investigate and prosecute a variety of offenses, including violent

crimes, drug trafficking, fraud and other white-collar crimes. The

Treaty is designed to be self-executing and will not require implementing legislation.

Article 1 contains a non-exhaustive list of the major types of assistance to be provided under the Treaty. The scope of the Treaty

includes not only criminal offenses, but also forfeiture proceedings.

Moreover, the article declares that dual criminality is not required

for assistance to be provided under the Treaty, except that a request may be denied when there is no dual criminality and execution of the request would require a court order for search and seizure or other coercive measures. In other words, assistance shall be

provided without regard to whether the conduct involved would

constitute an offense under the laws of the Requested State, except

when the Requested State exercises its discretion to deny requests

in cases involving coercive measures, bearing in mind the requirement that the Requested State make every effort to approve requests necessitating coercive measures. Furthermore, Article 1 requires the Requested State to grant assistance where the facts stated in the request ‘‘establish a reasonable suspicion that the conduct
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described, if it had occurred in the Requested State, would constitute an offense under its laws.’’

Article 1 also provides that assistance requests in fiscal offense

cases shall not be refused on the ground that the law of the Requested State does not impose the same kind of tax or duty, or does

not contain tax, duty, customs or exchange regulations of the same

kind as the law of the Requesting State. Finally, Article 1 makes

clear that the Treaty is designed to be utilized only by governmental authorities or institutions who seek evidence for use in

criminal investigations and prosecutions. The Treaty is not intended to create any right in a private person to seek, suppress or

exclude evidence.

Article 2 provides for the establishment of Central Authorities

and defines the Central Authorities for purposes of the Treaty. For

the United States, the Central Authority is the Attorney General

or such persons as the Attorney General designates. For the Republic of Austria, the Central Authority is the Federal Minister of

Justice or such persons as the Federal Minister of Justice designates. Article 2 provides that each Central Authority shall make

and receive requests on behalf of authorities which by law are responsible for investigations or prosecutions related to criminal matters, that each Central Authority shall make only such requests as

it considers and approves (with discretion to screen out minor

cases), and that the Central Authorities shall communicate directly

between each other for purposes of the Treaty. Article 3 sets forth the circumstances (in addition to those in Article 1) under which the Requested State may deny assistance

under the Treaty. A request may be denied if it relates to a political offense, or military offense that would not be a crime under ordinary criminal law. In addition, a request may be denied if its execution would prejudice the security or other essential interests of

the Requested State, or if the request does not comply with the

provisions of Article 4.

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 it deems necessary. If the

Central Authority of the Requested State denies assistance, it shall

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. The article specifies additional information to be provided to the extent necessary and possible to assist in locating individuals and effecting particular types of assistance. All requests

and supporting documents shall be in the language of the Requested State. In urgent situations, the Central Authority of the

Requested State may accept a request that is not in writing, but

such requests must be confirmed in writing within ten days unless

the Central Authority agrees otherwise.

Article 5 requires the Requested State to comply promptly with

a request, or to transmit it to the authorities with jurisdiction to

do so. The competent authorities of the Requested State shall do

everything in their power to execute a request. Requests are to be
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executed in accordance with the laws of the Requested State except

to the extent the Treaty provides otherwise, and the courts of the

Requested State shall have authority to issue such orders to execute requests under the Treaty as are authorized under the law of

the Requested State with respect to proceedings in domestic investigations and prosecutions. The method of execution specified in the

request shall be followed except insofar as it is prohibited by the

laws of the Requested State.

If the Central Authority of the Requested State determines that

execution of the request would interfere with an ongoing criminal

investigation or proceeding, jeopardize the security of a person, or

impose an extraordinary burden on the resources of that State, it

may postpone execution or, after consultations with the Requesting

State, impose conditions on such execution.

Article 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 if the request cannot be executed without breaching confidentiality.

Article 5 also requires a Requested State to provide a status report on a request in progress and promptly inform the Central Authority of the Requesting State of the outcome of the request. If

execution of a request is delayed or denied, the Requested State

must inform the Requesting State of the reasons.

Article 6 approptions between the two States the costs incurred

in executing a request. Generally, the Requested State shall pay all

costs, except for the following items to be paid by the Requesting

State: fees of expert witnesses, travel and subsistence expenses for

the travel of persons pursuant to Articles 10 and 12, and costs of

translation, interpretation, and transcription.

Article 7 provides that the Central Authority of the Requested

State may require that any information or evidence obtained under

the Treaty may not be used for investigations, proceedings, or prosecutions other than those described in the request without prior

consent of the Requested State. In the case of fiscal offenses, such

use shall only be made with prior consent of the Requested State,

except in related customs duty, excise, and tax proceedings. If the

Requested State requests that information or evidence furnished be

kept confidential subject to conditions specified by its Central Authority, the Requesting State is required to use its best efforts to

comply with those conditions. Once information is made public in

the Requesting State in accordance with the Treaty, no further limitations on use apply.

Article 8 provides that the Requested State shall compel, if necessary, the appearance, testimony or production of documents or

other evidence by a person in its territory on behalf of the Requesting State. The article requires the Requested State, upon request,

to inform the Requesting State in advance of the date and place of

the taking of testimony.

Article 8 also requires the Requested State to permit the presence of any persons specified in the request (such as the accused,

counsel for the accused, or other interested persons) and to permit

such persons either to question the person whose testimony is

being taken or, if such direct questioning is not permitted, to have

questions posed in accordance with applicable procedures in the
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Requested State. In the event that a person whose testimony or

evidence is being taken asserts a basis for not testifying under the

laws of the Requesting State, which was not specified in the request, the testimony or evidence shall be taken and the claim made

known to the Requesting State for resolution by its authorities.

Finally, Article 8 provides mechanisms for authentication of doc- umentary evidence produced pursuant to the article (including

Form A appended to the Treaty) and provides that documents so

authenticated shall be admissible in evidence in proceedings in the

Requesting State as proof of the truth of the matters set forth

therein.

Article 9 requires that the Requested State provide the Requesting State with copies of publicly available documents, records, or

information recorded in any form in the possession of a governmental or judicial authority in the Requested State. The Requested

State may further provide copies of records in the possession of a

government department or agency that are not publicly available

to the same extent and under the same conditions as it would to

its authorities, but the Requested State has the discretion to deny

such requests entirely or in part. Article 9 provides that no further

authentication is necessary for admissibility into evidence in the

Requesting State as proof of the truth of the matters set forth

therein for official records authenticated in accordance with the

provisions of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents, dated 5 October 1961.

Article 10 provides a mechanism for the Requesting State to invite the voluntary appearance and testimony in its territory of a

person located in the Requested State. The Requesting State shall

indicate the extent to which the expenses will be paid and may, at

the person’s request, provide an advance of money to cover expenses through the Embassy or a consulate of the Requesting

State.

Article 11 provides that a person appearing in the Requesting

State pursuant to the Treaty shall not be subject to any civil suit

to which the person could not otherwise be subjected, but for the

person’s presence in the Requesting State, or be detained or subjected to any restriction of personal liberty. This ‘‘safe conduct’’ is

limited to acts or convictions that preceded the person’s departure

from the Requested State. Any safe conduct provided under this article shall cease seven days after notification to a person appearing

pursuant to the Treaty that his presence is no longer required in

the Requesting State or whenever the person voluntarily reenters

the Requesting State after having left it.

Article 12 provides for the voluntary transfer to one State of a

person in custody in the other State for purposes of assistance

under the Treaty, provided that the person in question and both

Central Authorities agree. The article establishes the express authority and the obligation of the receiving State to maintain the

person transferred in custody unless otherwise authorized by the

sending State. It further obligates the receiving State to return the

person to the sending State as soon as circumstances permit or as

otherwise agreed by both Central Authorities without the need for

extradition proceedings and with the person transferred given credit for time served in the custody of the receiving State.
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Article 13 requires the Requested State to use its best efforts to

ascertain the location or identity of persons or items specified in a

request.

Article 14 requires the Requested State to use its best efforts to

effect services of any documents relating to or forming part of a request under the Treaty. The article further requires that any request for the service of document inviting a person to appear in the

territory of the Requesting State be transmitted by the Requesting

State a reasonable time before the scheduled appearance. The Requested State is required to return proof of service. The article also

declares that a person who is a national of the Requested State or

has equal status and who does not answer a summons to appear

in the Requesting State as a witness or expert pursuant to the

Treaty shall not be liable to any penalty or be subject to any coercive measures.

Article 15 obligates the Requested State to execute requests for

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. That information shall also include a statement that an appropriate authority in the Requesting

State could compel production of the items in question if they were

located in that State. The article further provides, upon request for

the Central Authority of the Requesting State, for the certification

by every official of the Requested State who has had custody of a

seized item of the continuity of custody, its identity, and the integrity of its condition. The certification shall be by means of Form B

appended to the Treaty or a document containing the essential information required by the Requesting State. No further certification is required under the Treaty, and any such certificates shall

be admissible in evidence in the Requesting State as proof of the

truth of the matters set forth therein. In addition, Article 15 provides that the Central Authority of the Requested State may impose conditions on the transfer of the seized items to protect thirdparty interests in the property.

Article 16 obliges the Requesting State to return to the Requested State as soon as possible any documents, records, or articles of evidence furnished under the Treaty, if the Requested State

so requests.

Article 17 provides that a Central Authority of one Party which

becomes aware of proceeds or instrumentalities of crime located in

the territory of the other Party that may be forfeitable or otherwise

subject to seizure under the laws of that Party may inform the

Central Authority of that Party. If the Party so informed has jurisdiction in this regard, it is free to take appropriate action. It shall

report to the Central Authority of the first Party on any action

taken. Article 17 further obligates the Parties to assist one another

to the extent permitted by their respective laws in proceedings involving the forfeiture of the proceeds and instrumentalities of offenses, restitution to the victims of crime, and the collection of fines

imposed as sentences in criminal prosecutions. The article further

permits a Requested State in control of forfeited assets to dispose

of them in accordance with its law, and permits either Party to

transfer to the other Party forfeited assets, or the proceeds of their
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sale, to the extent permitted by applicable laws and upon such

terms as the Parties deem appropriate.

Article 18 states that assistance and procedures provided in the

Treaty shall not prevent a Party from granting assistance under

any other international agreement to which it may be a party, or

through the provisions of its national laws. The article also states

that the Treaty shall not prevent the granting of assistance available under any bilateral arrangement, agreement, or practice

which may be applicable.

Article 19 provides that the Central Authorities of the two Parties shall consult, at times mutually agreed upon, concerning the

most effective use to be made of the Treaty.

Article 20 declares that the Treaty is subject to ratification, the

instruments of ratification shall be exchanged as soon as possible,

and the Treaty shall enter into force on the first day of the third

month following the month of the exchange of the instruments. The

article also states that the Treaty applies to requests whether or

not the relevant offenses occurred prior to the entry into force of

the Treaty. In addition, Article 20 allows either Party to terminate

the Treaty by means of written notice to the other Party which

takes effect six months following the date of 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 recommending approval of this Treaty by the Senate as soon as possible.

Respectfully submitted.

PETER TARNOFF.
(1)
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