U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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79–118 ★ ★ (STAR PRINT)

" ! SENATE 106th Congress

2d Session

TREATY DOC.

2000

106–35

TREATY WITH CYPRUS 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 REPUBLIC OF CYPRUS ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS,

SIGNED AT NICOSIA ON DECEMBER 20, 1999

JULY 13, 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, July 13, 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

Republic of Cyprus on Mutual Legal Assistance in Criminal Matters, signed at Nicosia on December 20, 1999. 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. Together with the Extradition

Treaty Between the Government of the United States of America

and the Government of the Republic of Cyprus, which entered into

force September 14, 1999, this Treaty will, upon entry into force,

provide an effective tool to assist in the prosecution of a wide variety of offenses, including organized crime, terrorism, drug-trafficking offenses, and other violent crimes as well as money laundering and other white collar crimes of particular interest to the

U.S. law enforcement community. 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 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.

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 15, 2000.

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 Cyprus on Mutual Legal Assistance in Criminal

Matters (the ‘‘Treaty’’), signed at Nicosia on December 20, 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 other 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 organized crime, terrorism, drug trafficking, and other violent crimes as

well as money laundering and other forms of white collar crime, 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 out the scope of assistance available under the

Treaty. Article 1(2) includes 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 assistance provided in connection with the investigation, prosecution, and prevention of offenses, but also in 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 that is the subject of the 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 intended solely for

mutual legal assistance between the Parties and does not give rise

to a right on the part of any private person 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

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person designated by the Attorney General. For Cyprus, the Central Authority is the Attorney General or a person designated by

the Attorney General. For Cyprus, the Central Authority is the

Minister of Justice and Public Order or a person designated by the

Minister. The article also provides that the Central Authorities

shall communicate directly with one another for the purposes of the

Treaty. In cases of urgency, the Treaty provides that the Central

Authorities may transmit requests through Interpol.

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 political offense (a term expected to be defined on the basis of the term’s usage in extradition

treaties) or an offense under military law that would not be a offense under ordinary criminal law or if it is not made in conformity

with the Treaty. In addition, a request may be denied if its execution would prejudice the security or similar essential interests of

the Requested State or if it would violate the Constitution of the

Requested State or the obligations of the Requested State under

any international multilateral treaty relating to human rights.

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 such conditions, it is required to comply with

them. 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 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 is to be in the language of the Requesting State accompanied by a translation in the language of the

Requested State unless otherwise agreed.

Article 5 concerns the execution of requests. Article 5(1) requires

the Central Authority of the Requested State to execute the request

promptly or, when appropriate, 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 competent judicial and other authorities of the Requested State shall 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

Requesting State in the execution of a request for assistance in the

Requested State.

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

with the internal laws and procedures of the Requested State except to the extent that the Treaty provides otherwise. Procedures

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

they cannot lawfully be followed in the Requested State.

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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 make execution subject to

conditions determined to be necessary after consultations with the

Central Authority of the Requesting State. 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 Central Authority of the Requesting State

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.

Article 5(6) and (7) additionally require the Requested State’s

Central Authority to respond to reasonable inquiries concerning

progress toward executing a request; to inform the Requesting

State’s Central Authority promptly of the outcome of its execution;

and, if execution 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 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 allowances and

expenses related to travel of persons pursuant to Articles 10 and

11. If, during the execution of a request, it becomes apparent that

fulfillment of the request will entail expenses of an extraordinary

nature, the Central Authorities must consult to determine the

terms and conditions under which execution may continue.

Article 7 requires the Requesting State to comply with any request by the Central Authority of the Requested State that any information or evidence obtained under the Treaty not be used in any

investigation, prosecution, or proceeding other than that described

in the request without the prior consent of the Central Authority

of the Requested State. Further, if the Requested State’s Central

Authority requests that information or evidence furnished under

this Treaty be kept confidential or be used in accordance with specified conditions, and the Requesting State accepts the information

or evidence subject to such conditions, it must use its best efforts

to comply with them.

Article 7(3) provides that nothing in Article 7 precludes 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 use or disclosure. Finally, Article 7 provides that once information or evidence is made public

in the Requesting State in a manner consistent with these provisions, it may thereafter be used for any purpose.

Article 8 describes the procedures for obtaining testimony or evidence in the Requested State. 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

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appear and testify or produce items, including documents and

records and 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 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 Requested State, the claim is to be resolved in accordance

with the laws of the Requested State. However, if a claim of immunity, incapacity, or privilege is made 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 of evidence in the Requesting State, Article 8(5) provides a mechanism for authenticating evidence that is produced pursuant to this article or that

is the subject of testimony taken in the Requested State, using

Form A appended to the Treaty, as well as certifications of the absence or nonexistence of such evidence using Form B.

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.

Under Article 9(2), the Requested State may also provide copies of

any documents, records, or information that are in the possession

of a government department or agency in that State, but which are

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 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 such official records where the official in

charge of maintaining them authenticates the records through the

use of Form C appended to the Treaty. Certification on Form D of

the absence or nonexistence of such records by an official responsible for maintaining similar records shall also be admissible.

Article 10 provides a mechanism for the Requesting State to invite the voluntary appearance outside the Requested State of a person located in the Requested State, indicating the extent to which

the expenses will be paid. The Requested State is to inform the

Central Authority of the Requesting State promptly of the person’s

response. 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 will 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

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that the person’s presence is no longer required, or the person, having left the Requesting State, voluntarily returns. The Central Authority of the Requesting State may, in its discretion, 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 in the custody of either State,

whose presence for purposes of assistance under the Treaty is

sought, may be transferred from the custody of one State to the

custody of the other State provided that the person concerned consents and both Central Authorities agree. 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, or a defendant in the Requesting State may be transferred for purposes of attending a witness deposition in the Requested State. Article 11(3) further establishes both the express authority and the obligation of the receiving State to keep the person

transferred in custody unless otherwise authorized by the sending

State; to return the person transferred to the custody of the sending State as soon as circumstances permit or as otherwise agreed

by both Central Authorities; and not to require the sending State

to initiate extradition or any other proceedings for return of the

person transferred. Article 11(3) also provides that the person

transferred receives credit for time served in the custody of the receiving State. Where the receiving State is a third State, the Requesting State must make all arrangements necessary to meet the

requirements of this paragraph.

Article 12 provides that the Requested State may, subject to any

constitutional limitations, 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 by the Requesting

State in an investigation, prosecution or proceeding. It also establishes the authority and obligation of the Requested State to keep

the person in custody during transit.

Article 13 obligates the Requested State to use its best efforts to

ascertain the location or identity in the Requested State of persons

or items specified in a request.

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 for assistance made by the Requesting State under the

Treaty. A request for the service of a document requring a person

to appear before an authority in the Requesting State must be

transmitted a reasonable time before the scheduledd appearance.

Proof of service is to be provided by the Requested State in the

manner specified in the request.

Article 15 obligates the Requested State, to the extent permitted

by its law, 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. It provides that, upon request, every official who has custody

of a seized item must certify, through use of Form E appended to

the Treaty, the identity of the item, the continuity of custody, and

any changes in condition. No further certification is required and

the Form will be admissible in evidence in the Requesting State.

The article further provides that the Central Authority of the ReVerDate 11-MAY-2000 20:08 Aug 30, 2000 Jkt 079118 PO 00000 Frm 00009 Fmt 7633 Sfmt 7633 E:\HR\OC\TD035.XXX pfrm08 PsN: TD035
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quested State may impose upon the Requesting State terms and

conditions deemed necessary to protect third-party interests in

items to be transferred.

Article 16 provides that the Central Authority of the Requested

State may require its counterpart in the Requesting State to return

any items furnished to it in execution of a request under the Treaty

as soon as possible.

Article 17 provides that, if the Central Authority of one 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 the other

Party. If the Party receiving such information has jurisdiction in

this regard, it may present this information to its authorities for

a determination whether any action is appropriate and in accordance with the laws of their country. The Central Authority of the

Party receiving such information is required to inform the Central

Authority of the Party that provided the information of any action

taken. Article 17 also obligates the Parties to assist each other to

the extent permitted by their respective laws in proceedings relating to forfeiture of the proceeds and instrumentalities of offenses,

restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions. Article 17(3) obligates

the Party having custody over proceeds or instrumentalities of offenses to dispose of them in accordance with its laws. Either Party

may transfer to the other Party all or part of such assets, or the

proceeds of their sale, to the extent not prohibited by the transferring Party’s laws and upon such terms as it deems appropriate.

Article 18 states that assistance and procedures provided in the

Treaty shall not prevent either 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 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 that they may agree upon such practical measures as

may be necessary to facilitate the Treaty’s implementation. Article

19 further provides that any dispute arising out of the interpretation, application or implementation of the Treaty is to be resolved

by the Central Authorities, or failing their agreement, through diplomatic channels.

Article 20 provides that the Treaty shall be subject to ratification

and shall enter into force upon exchange of instruments of ratification, which shall be exchanged as soon as possible. It further provides that the Treaty shall apply to any request presented after the

date of the Treaty’s entry into force whether the relevant acts or

omissions occurred prior to or after that date. 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 the

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

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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,

MADELINE ALBRIGHT.

(1)

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