U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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59–118

" ! SENATE 105TH CONGRESS

2d Session

TREATY DOC.

1998

105–37

TREATY WITH SAINT KITTS AND NEVIS 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 SAINT KITTS AND

NEVIS ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS,

SIGNED AT BASSETERRE ON SEPTEMBER 18, 1997, AND A RELATED EXCHANGE OF NOTES SIGNED AT BRIDGETOWN ON OCTOBER 29, 1997, AND FEBRUARY 4, 1998

MARCH 20, 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, March 20, 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 Government of the United States of America and the Government of Saint

Kitts and Nevis on Mutual Legal Assistance in Criminal Matters,

signed at Basseterre on September 18, 1997, and a related exchange of notes signed at Bridgetown on October 29, 1997, and

February 4, 1998. 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 immobilization and forfeiture of

assets; restitution; 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 related exchange of notes, and gives its advice and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, March 3, 1998.

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 Saint Kitts and Nevis on Mutual Legal Assistance

in Criminal Matters (‘‘the Treaty’’), signed at Basseterre on September 18, 1997, and a related exchange of notes signed at Bridgetown on October 29, 1997, and February 4, 1998. 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.

The Treaty with Saint Kitts and Nevis contains all essential provisions sought by the United States. It will enhance our ability to

investigate and prosecute a variety of offenses, including drug-trafficking offenses of particular interest to the United States law enforcement community. 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; 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 without regard to whether the conduct involved would

constitute an offense under the laws of the Requested State.

This Treaty, like the MLAT with Antigua and Barbuda, includes

an exchange of diplomatic notes which confirms that assistance

under the Treaty includes criminal tax matters, notwithstanding

that Saint Kitts and Nevis has no income tax legislation at this

time. The United States stated in its note that it does not intend

to seek assistance under the Treaty for civil and administrative income tax matters that are unrelated to any criminal matter. This

merely restates what is in any event true by virtue of Article 1(1),
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which is a standard MLAT provision. The exchange of notes is an

integral part of the Treaty.

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, and likewise for St. Kitts and Nevis, 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 other 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 the

meaning of which is well-defined in the extradition context and expected to be defined on that basis in connection with mutual assistance) or that execution of the request would be contrary to the

Constitution of the Requested State. This latter provision is similar

to clauses in United States mutual legal assistance treaties with

other countries in the region, 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 has 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 on this basis under Articles

14 and 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 must do everything in their power to

execute a request, and that courts of the Requested State must
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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

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 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 not to use information or

evidence obtained under the Treaty for proceedings other than

those described in the request without the prior consent of the Requested State. 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 Au-
VIII

thority 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 (such as the accused,

counsel for the accused, or other interested persons) 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

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 also provides that no further authentication shall be

necessary for admissibility into evidence in the Requesting State of

official records provided pursuant to this Article where the official

in charge of maintaining them authenticates the records through

the use of Form B appended to this Treaty.

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) 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. 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 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
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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.

The person transferred must be returned to the sending State as

soon as possible and as 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.

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. 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

items, including documents, records, or articles of evidence furnished to it in the execution of a request 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 Party and may be forfeitable

or otherwise subject to seizure, 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 that provided the information of any

action taken.

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

other to the extent permitted by their respective laws in proceedings relating to restraint, forfeiture of the proceeds and instrumentalities of offenses, restitution to victims of crime, and collection of
X

fines imposed as sentences in criminal prosecutions. Under Article

16(3), 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 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. To the extent permitted by law, a conviction in the Requesting State may serve as a basis for forfeiture in the Requested

State.

Article 17 states that assistance and procedures provided in the

Treaty will 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, including training and technical assistance, as may be

necessary to facilitate the Treaty’s implementation.

Article 19 provides that the Treaty is subject to ratification and

the instruments are to be exchanged at Washington, whereupon

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

applies 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(4) further provides that either party may terminate the Treaty by written notice of the other party, termination

to be effective six months after 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 and related exchange of notes by the

Senate as soon as possible.

Respectfully submitted,

MADELEINE ALBRIGHT.
(1)
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