U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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79–118

" ! SENATE 106TH CONGRESS

1st Session

TREATY DOC.

1999

106–16

TREATY WITH UKRAINE ON MUTUAL LEGAL

ASSISTANCE IN CRIMINAL MATTERS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

TREATY BETWEEN THE UNITED STATES OF AMERICA AND

UKRAINE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS WITH ANNEX, SIGNED AT KIEV ON JULY 22, 1998, AND

WITH AN EXCHANGE OF NOTES SIGNED ON SEPTEMBER 30,

1999, WHICH PROVIDES FOR ITS PROVISIONAL APPLICATION

NOVEMBER 10, 1999.—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, November 10, 1999.

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 Ukraine on Mutual Legal Assistance in

Criminal Matters with Annex, signed at Kiev on July 22, 1998. I

transmit also, for the information of the Senate, an exchange of

notes which was signed on September 30, 1999, which provides for

its provisional application, as well as 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. It

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 restraint, confiscation, 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, October 19, 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 Ukraine on Mutual Legal

Assistance in Criminal Matters with Annex (‘‘the Treaty’’), signed

at Kiev on July 22, 1998. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification.

Also enclosed, for the information of the Senate, is an exchange

of notes under which the Treaty is being provisionally applied to

the extent possible under our respective domestic laws, in order to

provide a basis for immediate mutual assistance in criminal matters. Provisional application would cease upon entry into force of

the Treaty.

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 Ukraine contains all essential provisions sought by the United States. It will

enhance our ability to investigate and prosecute a range of offenses. 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 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, rendering 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.

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, the Central Authority shall be the Attorney General
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or a person designated by the Attorney General. For Ukraine, the

Central Authority shall be the Ministry of Justice and the Office

of the Prosecutor 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. A further ground for

denial is that the request relates to a political offense (a term expected to be defined on the basis of that term’s usage in extradition

treaties). 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 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 requests 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 shall do everything in their power to

execute a request, and that the courts or other competent authorities of the Requested State shall have authority to issue subpoenas,

search and arrest warrants, or other orders necessary to execute

the request. The Central Authority of the Requested State must

make all arrangements for 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.

Article 5(4) provides that 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 the conditions, it shall comply with such conditions.

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
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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 Request State shall pay

all costs, except for the following items to be paid by the Requesting State: fees of expert witnesses, costs of interpretation, translation and transcription, and allowances and expenses related to

travel of persons pursuant to Articles 10 and 11. If during the execution of the request, it becomes apparent that extraordinary expenses will be entailed, the Central Authorities shall 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 for proceedings other than those described in the request without its prior

consent. 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 or 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 Requesting

State in advance of any such proposed use or disclosure.

Article 8 provides that a person in the Requesting State from

whom testimony or evidence is requested pursuant to the Treaty

shall be compelled, if necessary, to appear and testify or produce

items, documents and records. 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 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 by written notification to the Central Authority of the Requesting State for resolution by its competent authorities. Finally, in order to ensure admissibility of evidence in the Requesting State, Article 8(5) provides a
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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 Requesting 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 refuse to execute, entirely or in part, such requests for

records not publicly available. Article 9(3) provides that records

produced pursuant to this Article shall, upon request, be certified

by the appropriate form attached to the request. Article 9(3) also

provides that no further authentication shall be necessary for admissibility into evidence in the Requesting State of official records

pursuant to this Article.

Article 10 provides a mechanism for the Requesting State to invite the voluntary appearance in its territory of a person located

in the Requested State shall indicate the extent to which the expenses will be paid. It also 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. 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.

Article 11 provides for temporary transfer of a person in custody

in the Requested State or in a third 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 have his

deposition taken in the presence of the defendant), provided that

the person in question and the Central Authorities of 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 Requesting 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 agreed by both Central Authorities. 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

time served in the custody of the receiving State.

Article 12 establishes the authority of the Requested State to authorize transit through its territory of a person held in custody by

a third State whose appearance has been requested by the Re-
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questing State. The Requested State further has the authority and

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

Parties retain discretion to refuse to grant transit of their own nationals, however.

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

ascertain the location or identity 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 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 15 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 appropriate. The Central Authority of the State receiving such information is required to inform the Central Authority that provided the information of any action taken.

Article 17 also obligates the Contracting States 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 victims of crime, and collection of fines

imposed as sentences in criminal prosecutions. This may include

action to temporarily immobilize the proceeds or instrumentalities

pending further proceedings. The Contracting State having custody

over proceeds or instrumentalities of offenses is required to dispose

of them in accordance with its laws. Either Contracting State may

transfer all or part of such assets, or the proceeds of their sale, to

the extent permitted by the transferring State’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 Contracting State from granting assistance to the other Contracting State through the provisions of

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

assistance pursuant to any bilateral arrangement, agreement, or

practice which may be applicable.

Article 19 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 may agree upon such

practical measures as may be necessary to facilitate the Treaty’s

implementation.

Article 20 provides that the Treaty is subject to ratification and

the instruments shall be exchanged at Washington as soon as possible. The Treaty enters into force upon the exchange of instruments of ratification. Article 20 further provides that either Contracting State may terminate the Treaty by written notice to the

other Contracting State, with termination to be effective 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
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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,

STROBE TALBOTT.
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