U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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99–118

" SENATE ! 104TH CONGRESS

1st Session

TREATY DOC.

1995

104–20

TREATY WITH HUNGARY 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 HUNGARY ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL

MATTERS, SIGNED AT BUDAPEST ON DECEMBER 1, 1994

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 Hungary on Mutual Legal Assistance in Criminal Matters, signed at Budapest on December 1, 1994. 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 that the United States is negotiating 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 modern

criminals, including members of drug cartels, ‘‘white-collar’’ criminals, and terrorists. 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 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.

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 Hungary on Mutual Legal Assistance in Criminal

Matters (the ‘‘Treaty’’), signed at Budapest on December 1, 1994.

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 Nigeria, Korea,

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 treaties.

It will enhance our ability to investigate and prosecute a variety

of offenses, including violent crimes, drug trafficking, and 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, including taking the testimony or statements of persons; providing documents, records, and

articles of evidence; serving documents; locating or identifying persons or items; transferring persons in custody for testimony or

other purposes; executing requests for searches and seizures; assisting in forfeiture proceedings; and 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. Moreover, the article declares that dual criminality is not

required for assistance to be provided under the Treaty. 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. The article makes it clear that the Treaty is designed to be utilized only by governmental authorities who seek

evidence for use in criminal investigations and prosecutions. The
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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 a person designated by the Attorney General. For the Republic

of Hungary, the Central Authority is the Minister of Justice and

the Chief Public Prosecutor, or persons designated by them. The

Central Authorities shall communicate directly between each other

for purposes of the Treaty. This dual Central Authority arrangement for Hungary reflects the importance and independence of the

Office of the Chief Public Prosecutor in the Hungarian criminal justice system. Although such an arrangement will be unique among

U.S. treaties in the mutual assistance field, no practical problems

with implementation of the Treaty are anticipated.

Article 3 sets forth the circumstances under which the Requested

State may deny assistance under the Treaty. A request may be denied if it relates to a political offense, or a 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 sovereignty, security or similar 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 Requesting State accepts assistance subject to conditions, it shall

comply with the conditions. 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 further information to be provided to the extent necessary and possible to assist in locating individuals and effecting particular types of assistance. Unless otherwise agreed, all requests and supporting documents shall be in the

language of the Requested State.

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. The judicial authorities of the Requested State shall have the authority to issue

subpoenas, search warrants, or other orders necessary to execute

the request.

Requests are to be executed in accordance with the laws of the

Requested State except to the extent the Treaty provides otherwise.

However, 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, it may postpone execution or, after consultations with the Requesting State, impose con-
VII

ditions on such execution. If the Requesting State accepts assistance subject to such conditions, it shall comply with them.

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 6 apportions between the two States the costs incurred in

executing a request. Generally, the Requested State pays all costs

relating to the execution of the request, except for the fees of expert

witnesses, travel and subsistence expenses for the travel of persons

pursuant to Articles 10 or 11, and the costs of translation, interpretation, and transportation.

Article 7 provides that the Central Authority of the Requested

State may require that any information or evidence obtained under

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

consent of the Requested State. If the Requested State requests

that information or evidence furnished be kept confidential or be

used in accordance with conditions specified by its Central Authority, the Requesting State is required to use its best efforts to comply with the conditions specified. 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 may compel, if necessary, the taking of testimony or production of documents or other

evidence 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 to question the person whose testimony is being taken

or, if such direct questioning is not permitted, to submit questions

to the appropriate authority. 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, 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 a mechanism for authentication of documentary evidence produced pursuant to this article and provides

that no further authentication of certification shall be necessary in

order for such information to be admissible in evidence in proceedings in the Requesting State.

Article 9 requires that the Requested State provides the Requesting State with copies of publicly available records or information of

government departments or agencies. The Requested State may

further provide copies of records or information in the possession

of a governmental or judiciary authority in that State but not publicly available, to the same extent and under the same conditions

as it would to its own law enforcement or judicial 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
VIII

for official records authenticated in accordance with the provisions

of the Convention Abolishing the Requirement of Legalization for

Foreign Public Documents dated October 5, 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 Central Authority of

the Requested State is required to invite the person to appear and

promptly to inform the Requesting State of the person’s response.

Article 11 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

States agree. The article establishes the express authority and the

obligation of the Requesting State to maintain the person transferred in custody unless otherwise authorized by the Requested

State. It further obligates the Requesting State to return the person to the Requested State as soon as circumstances permit or as

otherwise agreed by both Central Authorities, without the need for

extradition proceedings.

Article 12 provides that the Central Authority of the Requesting

State may, in its discretion, determine that a person appearing in

the Requesting State pursuant to Article 10 or 11 shall not be subject to service of process, 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 15 days after the person’s presence is no longer required in

the Requesting State or whenever the person voluntarily reenters

the Requesting State after leaving it.

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 service 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 a 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.

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. If required by the Central Authority of the Requesting State, the article further provides for the certification (using Form B appended to the Treaty) 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.

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 third-party interests in the property.

Article 16 obliges the Requesting State to return to the Requested State as soon as possible any documents, records, or arti-
IX

cles of evidence furnished under the Treaty, if the Requested State

so requests.

Article 17 provides that, if one State becomes aware of proceeds

or instrumentalities of offenses that are located in the territory of

the other State and may be forfeitable or otherwise subject to seizure under the laws of the other State, it may so inform the other

State. Article 17 also obligates the States to assist one another to

the extent permitted by their respective laws in proceedings involving the forfeiture of the proceeds and instrumentalities of crime,

restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions. The article further

permits the States to agree to share forfeited assets, or the proceeds of their sale, to the extent permitted by applicable laws and

upon such terms as they deem appropriate.

Article 18 states that assistance and procedures provided in the

Treaty shall not prevent the granting of assistance under any other

international agreement between the two States, or through the

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

Treaty shall not prevent the granting of assistance pursuant to any

bilateral arrangement, agreement, or practice which may be applicable.

Article 19 provides that the Central Authorities of the Contracting Parties shall consult, at times mutually agreed upon, concerning the most effective means to implement the provisions of the

Treaty.

Article 20 provides that the Treaty shall be ratified and shall

enter into force upon the exchange of instruments of ratification.

In addition, Article 20 allows either Contracting Party to terminate

the Treaty with six months written notice to the other Party.

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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