U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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59–118

" ! SENATE 105TH CONGRESS

2d Session

TREATY DOC.

1998

105–34

TREATY WITH LATVIA ON MUTUAL LEGAL

ASSISTANCE IN CRIMINAL MATTER

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE

REPUBLIC OF LATVIA ON MUTUAL LEGAL ASSISTANCE IN

CRIMINAL MATTERS, SIGNED AT WASHINGTON ON JUNE 13,

1997

JANUARY 28, 1998.—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 28, 1998.

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 United

States of America and the Republic of Latvia on Mutual Legal Assistance in Criminal Matters, signed at Washington on June 13,

1997. I transmit also, for the information of the Senate, an exchange of notes that was signed the same date as the Treaty and

that provides for its provisional application, as well as 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 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 includes: taking

of testimony or statements of persons; providing documents,

records, and articles of evidence; serving documents; locating or

identifying person; transferring persons in custody for testimony or

other purposes; executing requests for searches and seizures; assisting in proceedings related to restraint, confiscation, 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.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, December 30, 1997.

The PRESIDENT, The White House.

THE PRESIDENT: I have the honor to submit to you the Treaty Between United States of America and the Republic of Latvia on Mutual Legal Assistance in Criminal Matters (‘‘the Treaty’’), signed at

Washington on June 13, 1997. I recommend that the Treaty be

transmitted to the Senate for its advice and consent to ratification.

Also enclosed, for the information of the Senate, is an exchange

of notes done at the time of signature of the Treaty. After consultation with Senate staff, the United States proposed and Latvia

agreed to provisionally apply the terms of the Treaty, to the extent

possible under our respective domestic laws, in order to provide a

basis for immediate mutual assistance in criminal matters. Provisional application would cease upon entry into force of the Treaty.

The Treaty covers mutual legal assistance in criminal matters.

In recent years, similar bilateral treaties have entered into force

with a number of other countries. The Treaty with Latvia contains

all essential provisions sought by the United States. It will enhance

our ability to investigate and prosecute a range of offenses. The

Treaty is designed to be self-executing and will not require new

legislation.

Article 1 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 of evidence; serving documents; locating or identifying

persons; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; assisting in

proceedings related to restraint, confiscation, forfeiture of assets,

restitution, and collection of fines; and rendering 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 assistance shall be provided without regard to whether the conduct involved 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 in 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
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person designated by the Attorney General. For Latvia, the Central

Authority is the Prosecutor General or a person designated by the

Prosecutor General. 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 State’s Central Authority may deny assistance under

the Treaty. A request may be denied if it relates to a military offense that would not be an offense under ordinary criminal law. A

further ground for denial is that the request relates to a political

offense (a term expected to be defined on the basis of that term’s

usage in extradition treaties). In addition, a request may be denied

if its execution would prejudice the security or similar essential interests of the Requested State, or if it is not made in conformity

with the Treaty.

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 the Central Authority of the Requested State deems necessary. If the Requesting State accepts assistance subject to these conditions, it is required to comply with

the conditions. If the Central Authority of the Requesting State denies assistance, it is required to 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 permits other forms of requests in emergency situations but requires written confirmation within ten days

thereafter unless the Central Authority of the Requesting State

agrees otherwise.

Article 5 requires the Central Authority of the Requesting State

to execute the request promptly or to transmit it to the authority

having jurisdiction to do so. It provides that the competent authorities of the Requesting State shall do everything in their power to

execute a request, and that the courts or other competent authorities of the Requesting State shall have authority to issue subpoenas, search warrants, or other orders necessary to execute the request. The Central Authority of the Requesting State must make

all arrangements for and meet the costs of representation of the

Requesting State in any proceedings arising out of an assistance

request.

Under Article 5(3), requesters are to be executed in accordance

with the laws of the Requesting State except to the extent that the

Treaty provides otherwise. However, the method of execution specified in the request is to be followed except insofar as it is prohibited by the laws of the Requesting State. Article 5(4) provides that

if the Central Authority of the Requesting 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 conditions, it shall

comply with them.

Article 5(5) further requires the Requesting State, if so requested, to use its best efforts to keep confidential a request and
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its contents, and to inform the Requesting State’s Central Authority if the request cannot be executed without breaching confidentiality. This provides the Requesting State an opportunity to decide

whether to pursue the request or to withdraw it in order to maintain confidentiality.

This article additionally requires the Requesting State’s Central

Authority to respond to reasonable inquiries by the Requesting

State’s Central Authority regarding the status of the execution of

a particular request; to report promptly to the Requesting State’s

Central Authority the outcome of its execution; and, if the request

is denied, to inform the Requesting State’s Central Authority of the

reasons for the denial.

Article 6 apportions between the two States the costs incurred in

executing a request. It provides that the Requested State shall pay

all costs, except for the following items to be paid by the Requesting State: 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.

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 proceedings other than those described in the request without its prior

consent. Further, if the Requested State’s Central Authority asks

that information or evidence furnished under this Treaty be kept

confidential or be used in accordance with specified conditions, the

Requesting State must use its best efforts to comply with the conditions. Once information is made public in the Requesting State in

accordance with either of these provisions, no further limitations on

use apply. Nothing in the article prevents the use or disclosure of

information 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.

Article 8 provides that a person in the Requested State from

whom testimony or evidence is requested pursuant to the Treaty

shall be compelled, if necessary, to appear and testify or produce

items and articles of evidence. The article 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. 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 shall be taken and the claim made known to the Central Authority of the Requesting State for resolution by its authorities. Finally, in order to ensure admissibility in evidence in the Requesting State, Article 8(5) provides a mechanism for authenticating evidence that is produced pursuant to or that is the subject of testimony taken in the Requested State.

Article 9 requires that the Requested State provide the Requesting State with copies of publicly available records in the possession
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of government departments and agencies in the Requested State.

The Requested State may further 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 it would provide them to its own law

enforcement or judicial authorities. The Requested State has the

discretion to deny such requests pursuant to this paragraph, entirely or in part, Article 9(3) provides that records produced pursuant to this Article shall, upon request, and without cost to the Requesting State, be authenticated under the provisions of the Convention Abolishing the Requirement of Legalization for Foreign

Public Documents, dated October 5, 1961. The absence or non-existence of such records shall, upon request, be certified by an official responsible for maintaining them through the use of Form C.

Article 9(3) also provides that no further authentication shall be

necessary for admissibility into evidence in the Requesting State of

official records pursuant to this article where the official in charge

of maintaining them authenticates the records through the use of

Form C appended to this Treaty.

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 or in a third State. The Requesting State

shall indicate the extent to which the expenses will be paid. It also

states that the Central Authority of the Requesting State has discretion to determine that a person appearing in the Requesting

State 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 his departure

from the Requested State. Any safe conduct provided for by this article ceases seven days after the Central Authority of the Requested States that the person’s presence is no longer required, or

if the person has left the Requesting State and voluntarily returns

to it.

Article 11 provides for temporary transfer of a person in custody

in the Requested State or in a third State to the Requesting State

for purposes of assistance under the Treaty (for example, a witness

incarcerated in the Requested State may be transferred to have his

deposition taken in the presence of the defendant), provided that

the person in question and the Central Authorities of both States

agree. The article also provides for voluntary transfer of a person

in the custody of the Requesting State to the Requested State for

purposes of assistance under the Treaty (for example, a defendant

in the Requesting State may be transferred for purposes of attending a witness deposition in the Requested State), if the person consents and if the Central Authorities of both States agree.

Article 11(e) further establishes both the express authority and

the obligation of the receiving State to maintain the person transferred in custody unless otherwise agreed by both Central Authorities. 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

time served in the custody of the receiving State. Where the receiv-
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ing State is a third State, the Requesting State shall make all arrangements necessary to meet the requirements of this paragraph.

Article 12 establishes the authority of the Requested State to authorize transit through its territory of a person held in custody by

a third State whose appearance has been requested by the Requesting State. The Requested State further has the authority and

the obligation to keep the person in custody during transit. The

Parties retain discretion to refuse to grant transit of their own nationals, however.

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 obligates the Requested State 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. 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 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, upon request,

every official who has custody of a seized item is required to certify,

through the use of Form D appended to the Treaty, the continuity

of custody, the identity of the item, and any changes in its condition. No further certification is required. The certificate is admissible in evidence in the Requesting State. The article further provides that the Central Authority of the Requested State may impose terms and conditions deemed necessary to protect bona fide

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

any items, including documents and records, furnished to it in execution of a request as soon as possible.

Article 17 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 the other Party. If the Party receiving such

information has jurisdiction in this regard, it may present this information to its authorities for a determination whether any action

is appropriate. 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 17 also obligates the Parties to assist each other to the

extent permitted by their respective laws in proceedings relating to

forfeiture of the proceeds and instrumentalities of offenses, restitution to victims of crime, and collection of fines imposed as sentences in criminal prosecutions. This may include action to temporarily immobilize the proceeds or instrumentalities pending further

proceedings. The Party having custody over proceeds or instrumentalities of offenses is required to dispose of them in accordance with

its laws. Either party may transfer all or part of such assets, or the
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proceeds of their sale, to the extent permitted 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 Contracting 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 which 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

the instruments shall be exchanged as soon as possible. The Treaty

enters into force upon the exchange of instruments of ratification.

Article 20 further provides that either party may terminate the

Treaty by written notice to the other party, termination to be effective six months following the date 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,

STROBE TALBOT.
(1)
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