U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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59–118

" ! SENATE 105TH CONGRESS

2d Session

TREATY DOC.

1998

105–47

TREATY WITH CZECH REPUBLIC ON MUTUAL

LEGAL ASSISTANCE IN CRIMINAL MATTERS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE

CZECH REPUBLIC ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL

MATTERS, SIGNED AT WASHINGTON ON FEBRUARY 4, 1998

MAY 22, 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, May 22, 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 United

States of America and the Czech Republic on Mutual Legal Assistance in Criminal Matters, signed at Washington on 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 terrorism, other violent crimes, drug trafficking, money

laundering, and other ‘‘white-collar’’ crime. The Treaty is self-executing.

The Treaty provides for a broad range of cooperation in criminal

matters. Mutual assistance available under the Treaty includes: locating or identifying persons or items; serving documents; taking

testimony or statements of persons; transferring persons in custody

for testimony or other purposes; providing documents, records, and

articles of evidence; executing requests for searches and seizures;

immobilizing assets; assisting in proceedings related to forfeiture of

assets, restitution, and criminal fines; and providing any other assistance consistent with 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, April 14, 1998.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Treaty between the United States of America and the Czech Republic on Mutual Legal Assistance in Criminal Matters (the ‘‘Treaty’’) signed at

Washington on 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 countries.

The Treaty with the Czech Republic 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, terrorism, other violent crime, and money laundering and

other white collar crime. The Treaty is designed to be self-executing and will not require implementing legislation.

Article 1 sets forth a non-exclusive list of the major types of assistance to be provided under the Treaty, including locating or

identifying persons or items; serving documents; taking the testimony or statements of persons; transferring persons in custody for

testimony or other purposes; providing documents, records, and articles of evidence; executing requests for searches and seizures; immobilizing assets; assisting in proceedings related to forfeiture of

assets, restitution, and criminal fines; and rendering any other assistance consistent with the laws of the Requested State. The scope

of the Treaty includes not only criminal offenses, but also forfeiture

and other proceedings related to criminal offenses, which may be

civil or administrative in nature.

Article 1 states that assistance shall be provided without regard

to whether the conduct involved would constitute an offense under

the laws of the Requested State, except that the Requested State

may refuse to comply in whole or in part with a request to the extent that the conduct would not constitute an offense under its

laws and the execution of the request would require a court order.

The Requested State must make every effort to approve a request

for assistance requiring such a court order and grant assistance

where the request establishes a reasonable suspicion that the conduct, had it occurred in that state, would constitute an offense

under its laws. Article 1(4) states explicitly that the Treaty is not

intended to create rights on the part of any private person to ob-
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tain, 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

such persons in the Department of Justice as the Attorney General

designates. For the Czech Republic, the Central Authority is the

Office of the Prosecutor General and the Ministry of Justice. This

dual Central Authority arrangement for the Czech Republic reflects

the importance and independence of the Office of the Prosecutor

General in the Czech Republic’s criminal justice system. Although

such an arrangement is very rare among U.S. treaties in the mutual assistance field, no practical problems with implementation of

the Treaty are anticipated.

Article 2 specifies on whose behalf each Central Authority will

make requests and it provides that the Central Authorities will

communicate directly with one another for purposes of the Treaty.

Article 2 also requires each Central Authority to use its best efforts to ensure that a request is not made where, in its view, the

offense does not have serious consequences or the extent of assistance requested is unreasonable in view of the sentence expected

upon conviction.

Article 3 sets forth the limited circumstances under which the

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 applicable generally or to a political offense (a term expected to be defined on the basis of its usage in extradition treaties). In addition,

a request may be denied if its execution would prejudice the sovereignty, security, order public, or similar essential interests of the

Requested State, or if the request is not made in conformity with

the Treaty.

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. Unless otherwise agreed, a request, including

any attachments, shall be in the language of the Requested State.

The Requested State has no obligation to translate the response,

including any attachments.

Article 5 requires that the Central Authority of the Requested

State execute the request promptly or transmit it to the authority

having jurisdiction to do so. It provides that the competent authorities of the Requested State, including courts, must have the au-
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thority to issue such orders to execute a request under the Treaty

as are authorized under the laws of the Requested State with respect to domestic proceedings and must do everything in their

power to execute the request.

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

with the laws of the Requested State except to the extent 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 proceeding in that State, it may postpone execution or, after consulting with the Central Authority of

the Requesting State, impose conditions on such execution. 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 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) requires the Central Authority of the Requested

State to respond to reasonable inquiries by the Central Authority

of the Requesting State regarding the status of the execution of a

request. Article 5(7) requires the Central Authority of the Requested State to report promptly to the Central Authority of the

Requesting State on the outcome of the execution of a request and,

if the request is delayed or postponed, to inform the Requesting

State’s Central Authority of the reasons therefor.

Article 6 apportions between the two States the cost incurred in

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

all costs relating to the execution of the request, except for the following items to be paid by the Requesting State: fees of experts,

the costs of translation, interpretation, and transcription, and allowances and expenses related to the travel of persons travelling

either in the Requested State for the convenience of the Requesting

State or pursuant to Articles 11, 12, and 13. If complete execution

will entail expenses of an extraordinary nature, the Central Authorities are to 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 information or evidence obtained under the Treaty not be used other

than in the proceeding described in the request without its prior

consent.

Article 8 establishes a procedure for consultation between Central Authorities in situations where a condition imposed by the Requested State conflicts with a constitutional obligation in the requesting State to disclose information. The Central Authority of the

Requested State is required to use its best efforts to permit disclosures; with respect to a condition imposed pursuant to Article 7, it

is required to permit disclosure unless prohibited by its law.
VIII

While Articles 7 and 8 vary from the U.S. model text, which permits disclosure to meet constitutional obligations, the flexibility

they afford in allowing initial production of information is viewed

as benefiting U.S. interests overall. The Department of State understands that the only circumstance in which Czech law would not

permit release is when information is obtained from use of a wiretap. In that situation, federal and state prosecutors in the U.S. in

principle would face limitations in their ability to pursue prosecution with respect to a defendant who is denied access to the information obtained from the Czech Republic.

Article 8(2) provides that information or evidence that has been

made public in the course of being used appropriately in the proceeding for which it was provided may be used thereafter for any

purpose.

Article 9 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 provide a

statement, 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 9(3) further requires the Requested State to allow the

presence of persons specified in the request and to allow them to

specify questions to be posed to the person giving the testimony or

statement or producing the 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 9(4) provides that the testimony, statement, or other

evidence shall be taken and provided, together with the claim, to

the Central Authority of the Requesting State for resolution by

competent authorities of that State.

Finally, in order to ensure admissibility in evidence in the Requesting State, Article 9(5) provides a mechanism, through the use

of Form A appended to the Treaty, for authenticating evidence that

is produced pursuant to this Article or that is the subject of testimony taken in the Requested State, as well as a mechanism for attesting to the absence of such records through the use of Form B

appended to the Treaty.

Article 10 requires that the Requested State provide the Requesting State with copies of publicly available records in the possession

of a government department or agency or a court in the Requested

State. The Requested State may further provide copies of records

or information in the possession of a government department or

agency or a court in that State, 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 entirely or

in part. Article 10(3) 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 or the

absence of such records through use of Form D appended to the

Treaty.
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Article 11 provides a mechanism for the Requesting State to invite the voluntary appearance in the Requesting State or in a third

State of a person located in the Requested State. The Requesting

State shall indicate the extent to which the expenses will be paid.

Article 11 further provides that an invited person may not be

prosecuted, detained, or subjected to any restriction of personal liberty in the Requesting State by reason of acts or convictions that

preceded the person’s departure from the Requested State. The

Central Authority of the Requesting State has discretion to extend

safe conduct to the effects of service of process or to limit the application of the safe conduct. Any such extension or limitation of safe

conduct is required to be communicated to the invited person before the person travels to the Requesting State. Any safe conduct

provided for by this Article ceases seven days after the person has

been notified that the person’s presence is no longer required, or

when the person has left the Requesting State and voluntarily returns to it.

Article 12 provides for the temporary transfer of a person in custody in the Requested State to the Requesting State or to 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 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. Article 12(3) establishes

both the express authority and the obligation of the receiving State

to maintain the person transferred in custody unless otherwise

agreed by the Central Authorities of both 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 13 facilitates transit through the Requested State’s territory of a person held in custody in a third State whose personal

appearance has been requested by the Requesting State to give testimony or evidence or otherwise provide assistance in criminal proceedings or other proceedings related to criminal offenses. Article

13(3) also provides that the Requested State has both the authority

and the obligation to keep the person in custody during transit.

Each Contracting State may refuse to grant transit of its nationals.

Article 14 requires the Requested State to use its best efforts to

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

request.

Article 15 requires 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 under the Treaty. Any request for the service

of a document inviting 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 includes a description of two acceptable

means of providing service, but does not preclude use of other

means.
X

Article 16 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. It provides that upon request by

the Central Authority of the Requesting State, every person who

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

of Form E appended to the Treaty, the continuity of custody, the

identity of the item and the integrity of its condition. The certificate is admissible in evidence in the Requesting State. Article 16

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 the item to be

transferred.

Article 17 provides that, at or before the time of transfer, the

Central Authority of the Requested State may require that the Requesting State return as soon as possible any item furnished under

the Treaty. A request for return not made until after the transfer

shall be complied with to the extent feasible.

Article 18 requires the Requested State, upon request, to use its

best efforts to ascertain whether proceeds or instrumentalities of

an offense, potentially forfeitable or otherwise subject to seizure

under either State’s laws, are located in the Requested State. To

the extent permitted by its laws, the Requested State may take

protective measures, including seizure and temporary immobilization, to ensure that such proceeds or instrumentalities are available for forfeiture, and may give effect to a final forfeiture determination in the Requesting State or initiate its own legal action for

the forfeiture of such assets. A Contracting State that enforces a

final legal determination regarding such assets shall dispose of

them in accordance with its laws. Either Contracting State may

share all or part of such forfeited assets, or the proceeds of their

sale, with the other State to the extent permitted by the transferring State’s laws and upon such terms as it deems appropriate, giving due consideration to relevant factors including the extent of cooperation provided by the other Contracting State.

Article 19 obligates the Contracting States to assist each other

to the extent permitted by their respective laws to facilitate restitution, including transfer of items obtained through criminal activity.

Article 20 obligates the States to assist each other to the extent

permitted by their respective laws in proceedings regarding criminal fines, excluding collection of such fines.

Article 21 states that the Treaty is not intended to prevent the

Contracting States from seeking and granting assistance to each

other through provisions of other international agreements or domestic laws.

Article 22 provides that the Central Authorities of the Contracting States shall consult, at times mutually agreed, to promote the

most effective use of the Treaty and to agree on practical measures

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

Article 23 provides that the Treaty shall be subject to ratification

and that the instruments of ratification shall be exchanged at

Prague. The Treaty shall enter into force two months after the exchange of instruments of ratification. Article 23(3) provides that

the Treaty shall apply to requests presented after its entry into
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force even if the relevant acts or omissions occurred before that

date. In addition, Article 23 allows either Contracting State to terminate the Treaty with six months written notice to the other Contracting State, 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 recommending approval of this Treaty by the Senate as soon as possible.

Respectfully submitted.

MADELEINE ALBRIGHT.
(1)
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