U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

39–118

" ! SENATE 105TH CONGRESS

1st Session

TREATY DOC.

1997

105–23

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

WITH BARBADOS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES

OF AMERICA AND THE GOVERNMENT OF BARBADOS ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT

BRIDGETOWN ON FEBRUARY 28, 1996

SEPTEMBER 3, 1997.—Agreement 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 3, 1997.

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 Barbados on Mutual Legal Assistance in Criminal Matters, signed at

Bridgetown on February 28, 1996. 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 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 persons; transferring persons in custody for testimony

or other purposes; executing requests for searches and seizures; assisting in proceedings related to 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, June 18, 1997.

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 Barbados on Mutual Legal Assistance in Criminal

Matters (‘‘the Treaty’’), signed at Bridgetown on February 28, 1996.

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 a number of other countries. This Treaty contains many provisions similar to those in the other treaties.

The Treaty with Barbados contains all essential provisions

sought by the United States. It will enhance our ability to investigate and prosecute a variety of offenses, including white collar

crime and drug trafficking offenses of particular interest to the

U.S. law enforcement community with respect to Barbados. 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

articles 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 immobilization and forfeiture of assets, restitution and the 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 states that, except as otherwise provided in the Treaty,

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
VI

person designated by the Attorney General. For Barbados, the

Central Authority is the Attorney General or a person designated

by the Attorney 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. In addition, a request may be denied if its execution would prejudice the security

or similar essential public interests of the Requested State, or if it

is not made in conformity with the Treaty. Further grounds for denial are 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) or that execution of the request would be contrary to the

Constitution of the Requested State. This latter provision is similar

to clauses in other United States mutual legal assistance treaties,

e.g., Jamaica.

A final ground for denial of assistance is that the request is

made pursuant to provisions of the treaty governing search and seizure (Article 14) or asset forfeiture (Article 16) and relates to conduct which would not be an offense if it had occurred in the Requested State. Thus, while ‘‘dual criminality’’ in general is not a

prerequisite for assistance under this treaty, the Requested State

does retain discretion to deny a request relating to assistance

sought under Article 14 or 16.

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 Requested 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 request in emergency situations but requires written confirmation within ten days

thereafter unless the Central Authority of the Requested State

agrees otherwise.

Article 5 requires the Central Authority of the Requested 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 Requested State shall do everything in their power to

execute a request, and that the judicial or other competent authorities of the Requested State shall have authority to issue subpoenas,

search warrants, or other orders necessary to execute the request.

The Central Authority of the Requested 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), requests are to be executed in accordance

with the laws of the Requested State except to the extent that the
VII

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 Requested State. If the Central Authority

of the Requested 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 Requested State, if so requested,

to use its best efforts to keep confidential a request and 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 Requested State’s Central

Authority to respond to reasonable inquiries by the Requesting

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

a 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 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 items and articles of evidence.

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
VIII

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 through the use

of Form A appended to the Treaty 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

of government departments and agencies in the Requested State.

The Requested State may further provide copies of records or information in the possession of a government department or agency,

but not publicly available, to the 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 entirely or in part. Article 9 also provides that no

further authentication shall be necessary for admissibility into evidence in the Requesting State of official records where the official

in charge of maintaining them authenticates the records through

the use of Form B 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. 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 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 Requesting State has notified the Central

Authority of the Requested State that the person’s presence is no

longer required, or if the person has left the Requesting State and

voluntarily returns to it. An extension of up to fifteen days for good

cause may be granted by the Requesting State’s Central Authority

in its discretion.

Article 11 provides for temporary transfer of a person in custody

in the Requested 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 the Requesting State 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(3) further establishes both the express authority and

the obligation of the receiving State to maintain the person transferred in custody unless otherwise authorized by the sending State.
IX

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 service of the sentence imposed in the sending State for time served in

the custody of the receiving State.

Article 12 requires the Requested State to use its best efforts to

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

request.

Article 13 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 14 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 C appended to the Treaty, the continuity

of custody, the identity of the item and the integrity of 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 upon the Requesting State terms and conditions deemed necessary to protect third party interests in items to be transferred.

Article 15 requires the Requesting State’s Central Authority,

upon request of its counterpart in the Requested State, to return

documents, records or articles of evidence obtained in the execution

of a request under the Treaty as soon as possible.

Article 16 provides that, if the Central Authority of one Contracting 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 that other Party. If the Party

receiving such information has jurisdiction, 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 of the

Party that provided the information of the action taken.

Article 16 also obligates the Contracting Parties to assist each

other to the extent permitted by their respective laws in proceedings relating to forfeiture of 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 share all or part of

such forfeited assets or the proceeds of their sale with the other

Party, to the extent not prohibited by the transferring party’s laws

and upon such terms as it deems appropriate.
X

Article 17 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 18 provides that the Central Authorities of the Contracting Parties 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 19 provides that the Treaty shall be subject to ratification

and the instruments shall be exchanged at Washington, whereupon

the Treaty shall enter into force. Article 19(3) provides that the

treaty shall apply to requests presented after the date of its entry

into force whether the relevant acts or omissions occurred prior to

or after that date. Article 19 further provides that either party may

terminate the Treaty by written notice to the other party, termination to take effect six months following the date of receipt of

such notice.

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)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26