U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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79–118

" ! SENATE 106TH CONGRESS

2d Session

TREATY DOC.

2000

106–19

TREATY WITH EGYPT 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 THE ARAB REPUBLIC

OF EGYPT ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT CAIRO ON MAY 3, 1998 AND A RELATED EXCHANGE OF DIPLOMATIC NOTES

FEBRUARY 2, 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, February 2, 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 the

Arab Republic of Egypt on Mutual Legal Assistance in Criminal

Matters, signed at Cairo on May 3, 1998. I transmit also a related

exchange of diplomatic notes for the information of the Senate. 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

taking 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 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, November 23, 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 the Arab Republic of Egypt on Mutual Legal Assistance in Criminal Matters (the ‘‘Treaty’’), signed at Cairo on May

3, 1998. I recommend that the Treaty be transmitted to the Senate

for its advice and consent to ratification. Accompanying the Treaty

is a related exchange of diplomatic notes. I recommend that these

notes 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 many provisions

similar to those in the other treaties and 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 Egypt. The Treaty is designed to be self-executing and will not require new legislation.

Article 1(2) 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 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 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 in connection

with any conduct that is the subject of an investigation, prosecution, or proceeding under the laws of the Requesting State.

Article 1(4) states explicitly that the Treaty is not intended to

create rights of 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

person designated by the Attorney General. For Egypt, the Central
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Authority is the Minister of Justice or a person designated by the

Minister of Justice.

The article also provides that the Central Authorities shall communicate directly with one another for the purposes of the Treaty.

Article 3(1) sets forth the circumstances under which a Requested State’s Central Authority may deny assistance under the

Treaty. A request may be denied if: (i) it relates to an offense under

military law that would not be an offense under ordinary criminal

law, (ii) its execution would prejudice the security or similar essential interests of the Requested State, or (iii) it is not made in conformity with the Treaty. In a diplomatic note dated April 22, 1998,

the United States restated the understanding of the negotiating

delegations that the ‘‘security or similar essential interests’’ provision in Article 3(1) provided an adequate basis upon which to deny

assistance requests in cases the United States would consider political offenses. A reply note from Egypt acknowledges the Parties’

understanding on this issue.

Before denying assistance, the Central Authority of the Requested State is required under Article 3(2) 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 such conditions, it is required to comply

with the conditions. If the Central Authority of the Requested State

denies assistance, it is required under Article 3(3) to inform the

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

Article 4 prescribes the form and content of requests under the

Treaty, specifying in detail the information required in each request. The Article permits requests to be made in other forms in

urgent situations but requires written confirmation within ten days

unless the Central Authority of the Requested State agrees otherwise. Unless otherwise agreed, the request must be in the language

of the Requested State.

Article 5 requires the Central Authority of the Requested State

to execute the request promptly or, where appropriate, to transmit

it to the authority having jurisdiction to do so. It provides that the

competent authorities of the Requested State must do everything

in their power to execute a request, and that the courts of the Requested State shall have authority to issue orders necessary to execute the request. The Central Authority of the Requested State is

required to make all necessary arrangements for and meet the

costs of representation of the Requesting State in any proceedings

arising out of a request for assistance.

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

with the laws of the Requested 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 Requested State. Under Article 5(4), 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
VII

State accepts assistance subject to such 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 such confidentiality.

This provides the Requesting State an opportunity to decide whether to pursue the request or to withdraw it in order to maintain confidentiality.

Article 5(6) 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 execution of the request

is denied, delayed or postponed, to inform the Requesting State’s

Central Authority of the reasons for the denial, delay or postponement.

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 the 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 of evidence obtained under the Treaty not be used for any

investigation, prosecution, or proceeding other than that 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, and the Requesting State accepts the information subject to such conditions, the Requesting State must use its best efforts to comply with the conditions. 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 Requested State

in a criminal prosecution. The Requesting State is obliged to notify

the Requested State in advance of any such proposed use or disclosure. Once information is made public in the Requesting State in

accordance with the provisions of the article, no further limitations

on use apply.

Article 8(1) 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, including documents, records, and other 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, except when the presence of such persons would be prohibited under the laws of the Requested State, and to permit them to question directly or indirectly

the person giving the testimony or evidence. The Egyptian negotiating delegation confirmed that Egyptian law authorized the pres-
VIII

ence of the defendant during the taking of testimony and that

Egyptian authorities would permit a U.S. prosecutor or other official to be present during the taking of such evidence or testimony

in Egypt when such official could provide information relevant to

the execution of the request. 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, through the use

of Forms A and B append to the Treaty, for authenticating evidence that is produced pursuant to or that is the subject of testimony taken in the Requested State (or certifying its absence or

nonexistence).

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 in

that State, 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 C appended to the Treaty. In like manner,

the absence or nonexistence of such records is, upon request, to be

certified by the use of Form D, which shall be admissible in evidence in the Requesting State.

Article 10(1) 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. Article 10(2) provides 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 the person’s departure

from the Requested State. Under Article 10(3), any safe conduct

provided for by this article ceases seven days after the Central Authority of the Requesting State has notified the person appearing

in the Requesting State that their presence is no longer required,

and the person being free to leave has not left, or having left, has

voluntarily returned. The Central Authority may extend this safe

conduct period for up to fifteen days if it determines that there is

good cause to do so.

Article 11 provides that a person who is in the custody of a Contracting Party and whose presence is requested in the State of the

other Contracting Party for purposes of assistance under the Treaty, shall be transferred to that State if the person consents and the

Central Authorities of both States agree. Under this article, for ex-
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ample, a witness incarcerated in the Requested State could be

transferred to the Requesting State to have his deposition taken in

the presence of the defendant or a defendant in the Requesting

State could be transferred to attend a witness deposition in the Requested State.

Article 11(2) 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

States. 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 in the Requested State 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 a

request 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 by

the Central Authority of the Requesting State, every official who

has custody of a seized item is required to certify, through the use

of Form E appended to the Treaty, the identity of the item, the continuity of the item’s custody and any changes in its condition. No

further certification is required and the certificate is admissible in

evidence in the Requesting State. Article 14(3) 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 other articles of evidence obtained in the

execution of a request under the Treaty as soon as possible.

Article 16(1) provides that, if the Central Authority of one Contracting Party becomes aware of proceeds or instrumentalities of offenses that are located in the other Contracting 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

Contracting Party receiving such information is required to inform

the Central Authority of the Contracting Party that provided the

information of the action taken.

Article 16(2) also obligates the Contracting Parties to assist each

other to the extent permitted by their respective laws in pro-
X

ceedings relating to forfeiture of proceeds and instrumentalities of

offenses, restitution to victims of crime, and collection of fines imposed as sentences in criminal prosecutions. Under Article 16(3),

the Contracting Party having custody over proceeds or instrumentalities of offenses is required to dispose of them in accordance with

its laws. Either Contracting Party may share all or part of such

forfeited assets, or the proceeds of their sale, with the other Contracting party, to the extent not prohibited by the transferring Contracting Party’s laws and upon such terms as it deems appropriate.

Article 17 states that assistance and procedures provided in the

Treaty shall not prevent either Contracting Party from granting assistance to the other Contracting Party through the provisions of

other applicable international agreements or through the provisions of its national laws. The Contracting Parties may also provide

assistance pursuant to any bilateral arrangement, agreement or

practice that may be applicable.

Article 18 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 19 provides that the Treaty and its Appendices, which are

integral parts of the Treaty, are subject to ratification. Article 19(3)

provides that the Treaty applies to requests presented after the

date of its entry into force, whether the relevant acts or omission

occurred prior to or after that date. Article 19 further provides that

either Contracting Party may terminate the Treaty by written notice to the other Contracting Party, termination to take effect 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 TALBOTT.
(1)
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