U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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79–118

" ! SENATE 106TH CONGRESS

2d Session

TREATY DOC.

2000

106–20

TREATY WITH ROMANIA 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 ROMANIA ON MUTUAL

LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON MAY 26, 1999

FEBRUARY 3, 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

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LETTER OF TRANSMITTAL

THE WHITE HOUSE, February 3, 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 Romania on Mutual Legal Assistance in Criminal Matters, signed at

Washington on May 26, 1999. 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 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.

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LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, December 10, 1999.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Treaty Between the United States of America and Romania on Mutual Legal

Assistance in Criminal Matters (the ‘‘Treaty’’), signed at Washington on May 26, 1999. 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 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 money-laundering and drug-trafficking offenses of particular interest to the

U.S. 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 other items; locating or identifying persons or items;

serving documents; transferring persons in custody for testimony or

other purposes; executing 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, except as otherwise provided in the Treaty, assistance shall be provided without

regard to whether the conduct that is the subject of an investigation, prosecution, or proceeding in the Requesting State 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 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 Romania, the Central Authority is the Minister of Justice. The article also provides
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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: (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, (iii) the request relates to an offense

which is considered by the Requested State to be 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 (iv) it is not made in conformity with the

Treaty.

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. Under Article 3(4), the Requested State cannot refuse to execute a request on the ground of bank secrecy.

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 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. The request must also be translated into the language of the Requested State, unless otherwise agreed. Any supporting documentation must be translated into the language of the

Requested State, if necessary, upon request of the Requested State.

Article 5(1) 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 the competent judicial or

other authorities of the Requested State must have power to issue

subpoenas, search warrants, or other orders necessary to execute

the request. Under Article 5(2), the Central Authority of the Requested State must make all necessary arrangements for representation of the Central Authority of the Requesting State in the execution of a request for assistance in the Requested State.

Under Article 5(3), requests are to be executed according to the

laws and procedures of the Requested State except to the extent

that the Treaty provides otherwise. However, procedures specified

in the request are to be followed except to the extent that those

procedures cannot lawfully be followed in 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 execu-
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tion. If the Requesting 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, prior

to the execution of the request, 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 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 therefor.

Article 6 apportions between the two States the costs incurred in

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

all costs, including the costs of representation, except for the following items to be paid by the Requesting State: fees of experts,

costs of translation, interpretation, and transcription, and the allowances and expenses related to travel of persons pursuant to Articles 10, 11 and 12. If during the execution of a request it becomes

apparent that complete execution will entail expenses of an extraordinary nature, the Central Authorities shall consult to determine the terms and conditions under which execution may continue.

Article 7(1) 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 any

investigation, prosecution, or proceeding other than that described

in the request without its prior consent. Further, under Article

7(2), 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. Article 7(3)

provides that nothing in this article prevents the use or disclosure

of information or evidence 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 Article 7(1) or 7(2), no further limitations on use apply.

Article 8(1) provides that a person in the Requested State from

whom testimony or evidence is requested shall be compelled, if necessary, to appear, testify, or produce items, including documents,

records, and other articles of evidence. Article 8(2) 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.

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
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them to question directly or indirectly the person giving the testimony or evidence. The persons present at the execution of a request shall be permitted to make a verbatim record of the proceedings. The use of technical means to make such a verbatim

record shall be permitted.

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, but not under the laws of the Requested 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, which are appended to the Treaty, for certifying

evidence, including business records, 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(1) requires that the Requested State provide the Requesting State with copies of publicly available records in the possession of a governmental or judicial authority in the Requested

State. Under Article 9(2), the Requested State may further provide

copies of records or information in any form in the possession of a

governmental or judicial authority in that State, but not publicly

available, to the same extent and under the same conditions as it

would provide them to its own governmental or judicial authorities.

The Requested State has the discretion to deny such requests entirely or in part. Article 9(3) provides that no further certification

shall be necessary for admissibility into evidence in the Requesting

State of official records where the official in charge of maintaining

them certifies 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 or in a third State for the purpose of assistance under the Treaty. If necessary, the Requesting State shall be

responsible for obtaining authorization from a third State. Article

10(2) provides that the Requesting State shall indicate the extent

to which the person’s expenses will be paid.

Article 10(3) 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(4), 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 when the person having left, has

voluntarily returned. The Central Authority of the Requesting

State may extend this safe conduct period for up to fifteen days if

it determines that there is good cause to do so.
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Article 11 provides for temporary transfer of a person in custody

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

purposes of assistance under the Treaty (for example, a witness incarcerated in the Requested State may be transferred to the Requesting State or to a third 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. If necessary,

the Requesting State shall be responsible for obtaining any authorization from a third State. The article also provides for voluntary

transfer of a person in the custody of the Requesting State to the

Requested State for purposes of assisting 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

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(1) provides that a Requested State may authorize the

transit through its territory of a person held in custody by the Requesting State or a third State, whose appearance has been requested in an investigation, prosecution, or proceeding in the Requesting State. Article 12(2) establishes the authority and obligation of the Requested State to maintain the person transferred in

custody.

If the Requesting State seeks the location or identity of persons

or items in the Requested State, Article 13 requires the Requested

State to use its best efforts to ascertain the location or identity of

such persons or items.

Article 14 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 15 obligates the Requested State to execute requests for

search, seizure, and transfer of any item to the Requesting State

if the request includes the information justifying such action under

the laws of the Requested State. The Article also provides that,

upon request, every official who has custody of a seized item 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 Forms are admissible in evidence in the Requested State. Article 15(3) further provides that the Central Authority of the Requested State may impose upon the Requesting State terms and
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conditions deemed necessary to protect 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

documents, records or other articles of evidence obtained in the

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

Article 17(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 Contracting 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 17(2) also obligates the Central 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. Under Article 17(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 18 states that assistance and procedures provided in the

Treaty will 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 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(1) provides that the Treaty is subject to ratification

and the Treaty will enter into force upon the exchange of instruments of ratification. Article 20(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 20(4) 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.
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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.

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