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[Senate Executive Report 107-3]
[From the U.S. Government Publishing Office]

107th Congress                                               Exec. Rpt.
                                 SENATE
 1st Session                                                      107-3

======================================================================

 
   TREATY WITH THE RUSSIAN FEDERATION ON MUTUAL LEGAL ASSISTANCE IN 
                            CRIMINAL MATTERS

                                _______
                                

               December 14, 2001.--Ordered to be printed

                                _______
                                

           Mr. Biden from the Committee on Foreign Relations
                        submitted the following

                              R E P O R T

                   [To accompany Treaty Doc. 106-22]

    The Committee on Foreign Relations, to which was referred 
the Treaty Between the United States of America and the Russian 
Federation on Mutual Legal Assistance in Criminal Matters 
(Treaty Doc. 106-22), having considered the same, reports 
favorably thereon, with three conditions indicated in the 
resolution of advice and consent, and recommends that the 
Senate give its advice and consent to the ratification thereof 
as set forth in this report and the accompanying resolution of 
advice and consent to ratification.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Background.......................................................1
III. Entry Into Force and Termination.................................2
 IV. Committee Action.................................................2
  V. Committee Recommendation and Comments............................2
 VI. Explanation of Proposed Treaty...................................3
VII. Text of Resolution of Advice and Consent to Ratification........21
VIII.Appendix........................................................23

                               I. Purpose

    The purpose of the Treaty is to establish a formal, treaty-
based means for cooperation on law enforcement matters with the 
Russian Federation.

                             II. Background

    The United States is currently party to 45 bilateral 
treaties on mutual legal assistance (MLATs). These treaties 
have proven to be important legal mechanisms for international 
cooperation against crime, which increasingly involves cross-
border activity. In the 106th Congress, the Senate gave its 
advice and consent to ratification of such treaties with 
Cyprus, Egypt, France, Greece, Nigeria, Romania, South Africa 
and Ukraine. The Treaty with Russia was signed on June 17, 
1999, and submitted to the Senate on February 10, 2000. It 
follows a standard form for such mutual legal assistance 
treaties.
    Although submitted by President Clinton, the Bush 
Administration has expressed its support for the advice and 
consent to ratification of the Treaty. On December 11, 2001, 
Secretary of State Powell wrote to the Committee Chairman and 
Ranking Member to urge that the Senate act on the Treaty (see 
appendix).

                 III. Entry Into Force and Termination

    The Treaty enters into force upon the exchange of the 
instruments of ratification. The Committee has been informed by 
the Department of State that the Government of the Russian 
Federation has completed the ratification process and is ready 
to exchange the instrument with the United States.
    Either Party may terminate the Treaty by means of written 
notice to the other Party. Termination takes effect six months 
following the date of receipt of such notification.

                          IV. Committee Action

    The Committee conducted a public hearing on the Treaty on 
September 12, 2000 (S. Hrg. 106-660), taking testimony from the 
Departments of State and Justice. On December 12, 2001, the 
Committee considered the Treaty, and ordered it favorably 
reported by voice vote, with the recommendation that the Senate 
give its advice and consent to the ratification of the Treaty, 
subject to the conditions set forth in the resolution of advice 
and consent to ratification, below in Section VII.

                V. Committee Recommendation and Comments

    The Committee recommends that the Senate advise and consent 
to ratification of the Mutual Legal Assistance Treaty with 
Russia. Prior to September 11, U.S. law enforcement already was 
engaged in many highly important investigations involving 
Russian organized crime, money laundering and corruption. Since 
September 11, the United States and Russia have been engaged in 
close cooperation to counter the threat of international 
terrorism. The Treaty will be an important means for fostering 
cooperation with Russia in fighting crime and international 
terrorism.
    The United States and Russia already have a similar 
agreement in place. The pending Treaty would replace an 
existing executive agreement between the United States and 
Russia which was signed in June 1995. That agreement, a mutual 
legal assistance agreement, is more limited than the pending 
Treaty in an important respect. The executive agreement applies 
only to a limited set of criminal offenses set forth in the 
annex of the agreement. The Treaty before the Senate provides a 
broader, and more flexible, ``dual criminality'' provision, 
which obligates each Party to provide assistance in any case 
where the conduct that is the subject of the request 
constitutes a crime under the laws of both Parties. The MLAT 
will therefore be useful to U.S. law enforcement interests by 
expanding the possible scope of bilateral cooperation.
    The Executive Branch has indicated that the record of 
cooperation under the existing agreement has been not fully 
satisfactory. This is hardly unusual; the process of building a 
cooperative relationship between national law enforcement 
institutions is often a slow one, particularly given the 
differences between the U.S. and Russian legal systems. One 
problem in implementation of the agreement, however, is due not 
to the Russian legal system but to the operation of the 
government itself: there has been a lack of continuity on the 
Russian side in the designation of the point of contact in the 
Central Authority.
    The Executive Branch representatives have indicated to the 
Committee that the entry into force of the MLAT will make law 
enforcement cooperation with Russia more reliable. For a 
variety of reasons, according to testimony before the 
Committee, the Russian government ``looks upon the treaty 
obligation'' imposed by the MLAT as being ``binding on more 
government agencies'' than the executive agreement now in 
place. The Committee expects that entry into force of this 
Treaty will lead the Russian government to fully review and 
fully implement all aspects of the Central Authority 
arrangement required by the Treaty.
    The Committee recognizes that cooperation and trust between 
the two governments will be an evolutionary process; that is 
hardly surprising after decades of antagonism. The Committee 
expects, however, that the pledges of an enhanced law 
enforcement relationship will result in concrete improvements 
in bilateral cooperation. Both the United States and Russia 
should devote the necessary resources, and political 
commitment, to ensure that the Treaty is effectively utilized. 
The Committee is encouraged by Secretary of State Powell's 
report to the Committee on his recent discussions with Foreign 
Minister Ivanov about the Treaty (see appendix). Secretary 
Powell stated that his Russian counterpart indicated that the 
Russian Federation would ``work closely with the United States 
to ensure the effective implementation of this treaty.'' The 
Committee looks forward to, and intends to monitor, the 
implementation of the Treaty.

                   VI. Explanation of Proposed Treaty

    The following is an article-by-article technical analysis 
provided by the Departments of State and Justice regarding the 
Treaty.
    On June 17, 1999, the United States signed a Treaty Between 
the United States of America and the Russian Federation (``the 
Treaty''). In recent years, the United States has signed 
similar treaties with a number of countries as part of a highly 
successful effort to modernize the legal tools available to law 
enforcement authorities in need of foreign evidence for use in 
criminal cases.
    The Treaty is expected to be a valuable weapon for the 
United States in its efforts to combat organized crime, 
transnational terrorism, and international drug trafficking, 
and other offenses.
    It is anticipated that the Treaty will be implemented in 
the United States largely pursuant to the procedural framework 
provided by Title 28, United States Code, Section 1782. Russia 
does not have a law specifically dealing with mutual legal 
assistance.
    The following technical analysis of the Treaty was prepared 
by the Office of International Affairs, United States 
Department of Justice, and the Office of the Legal Adviser, 
United States Department of State, based upon the negotiating 
history. The technical analysis includes a discussion of U.S. 
law and relevant practice as of the date of its preparation, 
which are, of course, subject to change. Foreign law 
discussions reflect the current state of that law, to the best 
of the drafters' knowledge.

                     Article 1--Scope of Assistance

    Paragraph 1 requires the Parties to provide ``comprehensive 
mutual legal assistance in criminal matters.'' Paragraph 2 
defines that term as meaning assistance provided in connection 
with the prevention, suppression, and investigation of crimes; 
criminal prosecutions; and other proceedings related to such 
criminal matters.
    The negotiators specifically agreed that the phrase 
``investigation of crimes'' includes grand jury proceedings in 
the United States and preliminary investigation proceedings in 
Russia, and other legal measures taken prior to the filing of 
formal charges in either State.\1\ The term ``criminal 
prosecutions'' was intended to cover the full range of 
proceedings in a criminal case, including such matters as bail 
and sentencing hearings.\2\ For Russia, this term generally 
represents the final stage of the ``preliminary investigation'' 
phase. It was also agreed that since the phrase ``proceedings 
related to such criminal matters'' is broader than the 
prevention, suppression, and investigation of crimes, as well 
as criminal prosecutions or the sentencing process itself, 
proceedings covered by the Treaty need not be strictly criminal 
in nature. For example, proceedings to forfeit to the 
government the proceeds of illegal drug trafficking may be 
civil in nature,\3\ but such proceedings are covered by the 
Treaty.
---------------------------------------------------------------------------
    \1\ The requirement that assistance be provided under the Treaty at 
the pre-indictment stage is critical to the United States, as our 
investigators and prosecutors often need to obtain evidence from 
foreign countries in order to determine whether or not to file criminal 
charges. This obligation is a reciprocal one; the United States must 
assist Russia under the Treaty in connection with investigations prior 
to charges being filed in Russia.
    \2\ One U.S. court has interpreted Title 28, United States Code, 
Section 1782, as permitting the execution of a request for assistance 
from a foreign country only if the evidence sought is for use in 
proceedings before an adjudicatory ``tribunal'' in the foreign country. 
In Re Letters Rogatory Issued by the Director of Inspection of the 
Gov't of India, 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal, 
620 F.2d 322 (2d Cir. 1980). This rule poses an unnecessary obstacle to 
the execution of requests concerning matters which are at the 
investigatory stage, or which are customarily handled by administrative 
officials in the Requesting State. Since this paragraph of the Treaty 
specifically permits requests to be made in connection with matters not 
within the jurisdiction of an adjudicatory ``tribunal'' in the 
Requesting State, this paragraph accords the courts broader authority 
to execute requests than does Title 28, United States Code, Section 
1782, as interpreted in the India and Fonseca cases.
    \3\ See, Title 21, United States Code, Section 881; Title 18, 
United States Code, Section 1964.
---------------------------------------------------------------------------
    Paragraph 3 conditions cooperation upon a showing of ``dual 
criminality'', i.e., proof that the facts underlying the 
offense charged in the Requesting Party would also constitute 
an offense had they occurred in the Requested Party. During the 
negotiations, the Russian delegation gave assurances that 
assistance would be available under the Treaty to the United 
States in investigations of major crimes such as conspiracy; 
drug trafficking, including operating a continuing criminal 
enterprise (Title 21, United States Code, Section 848); 
offenses under the racketeering statutes (Title 18, United 
States Code, Section 1961-1968); money laundering; Export 
Control Act violations; criminal tax; securities fraud and 
insider trading, environmental protection, and antitrust 
offenses.
    The second sentence of paragraph 3 provides that even when 
dual criminality does not exist, a Requested Party may, in its 
discretion, provide legal assistance.
    Paragraph 4 contains a standard provision in United States 
mutual legal assistance treaties,\4\ which states that the 
Treaty is intended solely for government-to-government mutual 
legal assistance. The Treaty is not intended to provide to 
private persons a means of evidence gathering, or to extend 
generally to civil matters. Private litigants in the United 
States may continue to obtain evidence from Russia by letters 
rogatory, an avenue of international assistance that the Treaty 
leaves undisturbed. Similarly, the paragraph provides that the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence provided pursuant to the 
Treaty, or to impede the execution of a request.
---------------------------------------------------------------------------
    \4\ See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), 
cert. denied, 469 U.S. 1075 (1984).
---------------------------------------------------------------------------
    Paragraph 5 of this article defines the term ``person'' as 
used in articles 1(4), 2(4), 5(3) subparagraphs 1-5, 10(1), 14, 
and 15(2) as both individuals and legal entities, consistent 
with usage in U.S. law.

                  Article 2--Scope of Legal Assistance

    This article lists the major types of assistance 
specifically considered by the Treaty negotiators. Most of the 
items listed are described in detail in subsequent articles. 
The list is not intended to be exhaustive, a fact that is 
signaled by the word ``include'' in the opening clause of the 
paragraph and reinforced by the final subparagraph.

    Article 3--Central Authorities and Procedures for Communications

    This article requires that each Party implement the 
provisions of the Treaty, including the making and receiving of 
requests, through its Central Authority. The Central Authority 
of the United States will make all requests to Russia on behalf 
of federal agencies, state agencies, and local law enforcement 
authorities in the United States. Likewise, the Central 
Authority of Russia will make all requests emanating from 
appropriate law enforcement authorities in Russia.
    The Central Authority for the Requesting Party will 
exercise discretion as to the form and content of requests, and 
the number and priority of requests. The Central Authority of 
the Requested Party also is responsible for receiving each 
request, transmitting it to the proper federal or state agency, 
court, or other authority for execution, and ensuring that a 
timely response is made.
    Paragraph 2 provides that the Attorney General or persons 
designated by the Attorney General will be the Central 
Authority for the United States. The Attorney General has 
delegated the authority to handle the duties of Central 
Authority under mutual assistance treaties to the Assistant 
Attorney General in charge of the Criminal Division.\5\ Article 
3(2) of the Treaty also states that the Office of the 
Procurator General of the Russian Federation or persons 
designated by the Procurator General will serve as the Central 
Authority for Russia.
---------------------------------------------------------------------------
    \5\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the 
Criminal Division has in turn delegated this authority to the Deputy 
Assistant Attorneys General and the Director of the Criminal Division's 
Office of International Affairs, in accordance with the regulation. 
Directive No. 81, 45 Fed. Reg. 79,758 (1980), as corrected at 48 Fed. 
Reg. 54,595 (1983). That delegation was subsequently extended to the 
Deputy Directors of the Office of International Affairs. 59 Fed. Reg. 
42,160 (1994).
---------------------------------------------------------------------------
    Paragraph 3 states that the Central Authorities shall 
communicate directly with one another for the purposes of the 
Treaty and may agree upon such practical measures as may be 
deemed necessary to facilitate the implementation of the 
Treaty. It is anticipated that such communication will be 
accomplished by telephone, telefax or any other means, at the 
option of the Central Authorities themselves.

                 Article 4--Denial of Legal Assistance

    This article specifies the limited classes of cases in 
which assistance may be denied under the Treaty. These 
restrictions are similar to those found in other mutual legal 
assistance treaties.
    Paragraph (1)(1) permits denial of a request if it relates 
to an offense under military law that would not be an offense 
under general criminal law.
    Paragraph (1)(2) permits the Central Authority of the 
Requested Party to deny a request if execution of the request 
would prejudice the security or other essential interests of 
that Party. All U.S. mutual legal assistance treaties contain 
provisions allowing the Requested Party to decline to execute a 
request if execution would prejudice its essential interests.
    The delegations agreed that the word ``security'' would 
include cases in which assistance might involve disclosure of 
information that is classified for national security reasons. 
It is anticipated that the U.S. Department of Justice, as 
Central Authority for the United States, would work closely 
with the Department of State and other government agencies to 
determine whether to execute a request that might fall in this 
category.
    The negotiators also agreed that ``other essential 
interests'' could include interests related to the fundamental 
purposes of the Treaty. For example, one fundamental purpose of 
the Treaty is to enhance law enforcement cooperation, and 
attaining that purpose would be hampered if sensitive law 
enforcement available under the Treaty were to fall into the 
wrong hands. Therefore, the U.S. Central Authority may invoke 
paragraph 1(2) to decline to provide information pursuant to a 
request under this Treaty if it determines, after appropriate 
consultation with law enforcement, intelligence, and foreign 
policy agencies, that a senior foreign government official who 
will have access to the information is engaged in a felony, 
including the facilitation of the production or distribution of 
illegal drugs. \6\
---------------------------------------------------------------------------
    \6\ This is consistent with the Senate resolution of advice and 
consent to ratification of other mutual legal assistance treaties with, 
e.g., Luxembourg, Hong Kong, Poland and Barbados. See, Cong. Rec. 
S12985-S12987 (November 1, 1998). See, also, Mutual Legal Assistance 
Treaty Concerning the Cayman Islands, Exec. Rept. 100-26, 100th Cong., 
2 Sess., 67 (1988) (testimony of Mark M. Richard, Deputy Assistant 
Attorney General, Criminal Division, United States Department of 
Justice).
---------------------------------------------------------------------------
    In addition, the United States and Russia exchanged 
diplomatic notes stating that during the negotiations the U.S. 
delegation agreed to exclude an express reference in the Treaty 
to ``political offense'' as a basis for denial of assistance 
since the term ``political offense'' is not used in Russian 
law. Instead, the Parties, through the exchange of these 
diplomatic notes, have agreed that Article 4(1)(2) of the 
Treaty provides a sufficient basis upon which the United States 
may deny assistance in cases it would consider ``political 
offenses.'' The United States would employ jurisprudence 
similar to that used in extradition treaties for determining 
what is a ``political offense.'' Such a restriction is similar 
to provisions explicitly included in other mutual legal 
assistance treaties. \7\
---------------------------------------------------------------------------
    \7\ In addition, the delegations agreed during the negotiation that 
the term ``essential interest'' encompasses the fundamental interests 
of each Party, including those relating to human rights and civil 
liberties.
---------------------------------------------------------------------------
    Paragraph 1(3) allows the Central Authority of a Requested 
Party to deny assistance if the request does not conform to the 
requirements of this Treaty.
    Paragraph 2 specifically prohibits the Requested Party from 
denying assistance on the ground of bank secrecy. The 
negotiators agreed that inclusion of this provision was useful 
to explicitly demonstrate to bank and other officials of a 
Requested Party, particularly in Russia where bank secrecy laws 
exist, that they cannot assert bank secrecy as a basis for 
refusing to provide assistance sought pursuant to a request 
made in accordance with this Treaty.
    Paragraph 3 is similar to Article 3(2) of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\8\ and obliges the 
Requested Party to consider imposing appropriate conditions on 
its assistance in lieu of denying a request outright pursuant 
to the first paragraph of the article. For example, a 
Contracting Party might request information that could be used 
either in a routine criminal case (which would be within the 
scope of the Treaty) or in a prosecution of a political offense 
(which would be subject to refusal). This paragraph would 
permit the Requested Party to provide the information on the 
condition that it be used only in the routine criminal case. 
Naturally, the Requested Party would notify the Requesting 
Party of any proposed conditions before actually delivering the 
evidence in question, thereby giving the Requesting Party a 
chance to indicate whether it is willing to accept the evidence 
subject to the conditions. If the Requesting Party does accept 
the evidence subject to the conditions, it must honor the 
conditions.
---------------------------------------------------------------------------
    \8\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at Bern 
May 25, 1973, entered into force January 23, 1977, art. 26, 27 U.S.T. 
2019, TIAS No. 8302, 1052 UNTS 61.
---------------------------------------------------------------------------
    Paragraph 4 requires that the Central Authority of the 
Requested Party promptly notify the Central Authority of the 
Requesting Party of the basis for any denial of assistance. 
This ensures that, when a request is only partly executed, the 
Requested Party will provide some explanation for not providing 
all of the information or evidence sought. This should avoid 
misunderstandings, and enable the Requesting Party to better 
prepare its requests in the future.

     Article 5--Form and Contents of Requests for Legal Assistance

    Paragraph 1 requires that requests be in writing, except 
that the Central Authority of the Requested Party may accept a 
request in another form in ``urgent situations.'' If the 
request is not in writing, it must be confirmed in writing 
within ten days unless the Central Authority of the Requested 
Party agrees otherwise.
    Paragraph 2 lists the five kinds of information deemed 
crucial to the efficient operation of the Treaty which must be 
included in each request. Paragraph 3 lists eight kinds of 
information that are important but not always crucial, and 
should be provided ``to the extent necessary and possible.'' In 
keeping with the intention of the Parties that requests be as 
simple and straightforward as possible, there is no requirement 
under the Treaty that a request be legalized or certified. 
Paragraph 4 states that the request shall be prepared and 
signed in accordance with the regulations of the Requesting 
Party. Requests from the U.S. Central Authority to Russia will 
be signed by an authorized person of the Central Authority. 
Requests from Russia to the United States typically will be 
both signed by an appropriate person and contain official seals 
of the Central Authority.

                          Article 6--Language

    This article states that requests for assistance and 
attached documents must be accompanied by a translation into 
the language of the Requested Party.

                    Article 7--Execution of Requests

    Paragraph 1 requires each Central Authority to promptly 
execute requests. The negotiators intended that the Central 
Authority, upon receiving a request, will first review the 
request, then promptly notify the Central Authority of the 
Requesting Party if the request does not appear to comply with 
the Treaty's terms. If the request does satisfy the Treaty's 
requirements and the assistance sought can be provided by the 
Central Authority itself, the request will be fulfilled 
immediately. If the request meets the Treaty's requirements but 
its execution requires action by some other entity in the 
Requested Party, the Central Authority will promptly transmit 
the request to the correct entity for execution.
    When the United States is the Requested Party, it is 
anticipated that the Central Authority will transmit most 
requests to federal investigators, prosecutors, or judicial 
officials for execution if the Central Authority deems it 
appropriate to do so.
    Paragraph 1 further authorizes and requires the competent 
judicial or other authorities to do everything within their 
power to execute the request. This provision is not intended or 
understood to authorize the use of the grand jury in the United 
States for the collection of evidence pursuant to a request 
from Russia. Rather, it is anticipated that when a request from 
Russia requires compulsory process for execution, the U.S. 
Department of Justice would ask a federal court to issue the 
necessary process under Title 28, United States Code, Section 
1782, and the provisions of the Treaty. Similarly, this general 
language should not be understood to authorize the use of the 
Treaty to conduct criminal proceedings in Russia for the U.S. 
(e.g., the accepting of guilty pleas from defendants).
    Paragraph 2 states that the Central Authority of the 
Requested Party shall represent the interests of the Requesting 
Party in executing a request for assistance. Thus, it is 
understood that if execution of the request entails action by a 
judicial or administrative agency, the Central Authority of the 
Requested Party shall arrange for the presentation of the 
request to that court or agency at no cost to the Requesting 
Party.
    Paragraph 3 provides that ``[r]equests shall be executed in 
accordance with the laws of the Requested Party except if this 
Treaty provides otherwise.'' Thus, the method of executing a 
request for assistance under the Treaty must be in accordance 
with the Requested Party's domestic laws absent specific 
contrary procedures in the Treaty itself. For the United 
States, the Treaty is intended to be self-executing; no new or 
additional legislation will be needed to carry out the 
obligations undertaken.
    The second sentence of Article 7(3) states: ``[t]he 
competent authorities of the Requested Party shall have the 
authority to issue subpoenas, search warrants, or other orders 
necessary for the execution of requests.'' This language 
specifically authorizes U.S. courts to use all of their powers 
to issue subpoenas and other process to satisfy a request under 
this Treaty. It also reflects an understanding that the Parties 
intend to provide each other with every available form of 
assistance from judicial and executive branches of government 
in the execution of mutual assistance requests. The term 
``competent authorities'' is intended to include all those 
officials authorized to issue compulsory process that might be 
needed in executing a request.
    The same paragraph requires that procedures specified in 
the request shall be followed in the execution of the request 
except to the extent that those procedures cannot lawfully be 
followed in the Requested Party. This provision is necessary 
for two reasons.
    First, there are significant differences between the 
procedures which must be followed by U.S. and Russian 
authorities in collecting evidence in order to assure the 
admissibility of that evidence at trial. For instance, U.S. law 
permits documents obtained abroad to be admitted in evidence if 
they are duly certified and the defendant has been given fair 
opportunity to test its authenticity.\9\ Since Russian law 
contains no similar provision, documents acquired in Russia in 
strict conformity with Russian procedures might not be 
admissible in U.S. courts. Furthermore, U.S. courts use 
procedural techniques such as videotape depositions that simply 
are not used in Russia even though they are not forbidden 
there.
---------------------------------------------------------------------------
    \9\ Title 18, United States Code, Section 3505.
---------------------------------------------------------------------------
    Second, the evidence in question could be needed for 
subjection to forensic examination, and sometimes the 
procedures which must be followed to enhance the scientific 
accuracy of such tests do not coincide with those utilized in 
assembling evidence for admission into evidence at trial. The 
value of such forensic examinations could be significantly 
lessened--and the Requesting Party's investigation could be 
retarded--if the Requested Party were to insist unnecessarily 
on handling the evidence in a manner usually reserved for 
evidence to be presented to its own courts.
    Both delegations agreed that the Treaty's primary goal of 
enhancing law enforcement in the Requesting Party could be 
frustrated if the Requested Party were to insist on producing 
evidence in a manner which renders the evidence inadmissible or 
less persuasive in the Requesting Party. For this reason, 
Paragraph 3 requires the Requested Party to follow the 
procedure outlined in the request to the extent that it can, 
even if the procedure is not that usually employed in its own 
proceedings. However, if the procedure called for in the 
request is unlawful in the Requested Party (as opposed to 
simply unfamiliar there), the appropriate procedure under the 
law applicable for investigations or proceedings in the 
Requested Party will be utilized.
    Paragraph 4 states that a request for assistance need not 
be executed immediately when the Central Authority of the 
Requested Party determines that execution would interfere with 
an ongoing criminal investigation, criminal prosecution, or 
legal proceeding related to a pending criminal matter in the 
Requested Party. The paragraph also allows the Requested Party 
to provide the information to the Requesting Party subject to 
conditions needed to prevent interference with the Requested 
Party's proceedings.
    It is anticipated that some United States requests for 
assistance may contain information which under our law must be 
kept confidential. For example, it may be necessary to set out 
information that is ordinarily protected by Rule 6(e), Federal 
Rules of Criminal Procedure, in the course of an explanation of 
``a description of the facts and circumstances of the case'' as 
required by Article 5(2)(2). Therefore, Paragraph 5 of Article 
7 enables the Requesting Party to call upon the Requested Party 
to use its best efforts to keep the information in the request 
confidential.\10\ If the Requested Party cannot execute the 
request without disclosing the information in question (as 
might be the case if execution requires a public judicial 
proceeding in the Requested Party), or if for some other reason 
this confidentiality cannot be assured, the Treaty obliges the 
Requested Party to so indicate, thereby giving the Requesting 
Party an opportunity to withdraw the request rather than risk 
jeopardizing an investigation or proceeding by public 
disclosure of the information.
---------------------------------------------------------------------------
    \10\ This provision is similar to language in other United States 
mutual legal assistance treaties. See, e.g., U.S.-Lithuania Mutual 
Legal Assistance Treaty, signed at Washington January 16, 1998, entered 
into force August 26, 1999, art. 5(5).
---------------------------------------------------------------------------
    Paragraph 6 states that the Central Authority of the 
Requested Party shall respond to inquiries by the Requesting 
Party concerning progress of its request. The delegations 
understood that this meant reasonable inquiries. This is to 
encourage open communication between the Central Authorities in 
monitoring the status of specific requests.
    Article 7(7) requires the Central Authority of the 
Requested Party, upon request by the Central Authority of the 
Requesting Party, to furnish information in advance about the 
date and place of the execution of the request. The second 
sentence of this same paragraph requires the Requested Party to 
permit the presence of persons specified in the request during 
the execution of the request.
    Paragraph 8 requires that the Central Authority of the 
Requested Party promptly notify the Central Authority of the 
Requesting Party of the outcome of the execution of a request. 
If the assistance sought is not provided, the Central Authority 
of the Requested Party must also explain the basis for the 
outcome to the Central Authority of the Requesting Party. For 
example, if the evidence sought could not be located, the 
Central Authority of the Requested Party would report that fact 
to the Central Authority of the Requesting Party.

                            Article 8--Costs

    This article reflects the increasingly accepted 
international rule that each Party shall bear the expenses 
incurred within its territory in executing a legal assistance 
Treaty request. This is consistent with similar provisions in 
other United States mutual legal assistance treaties.\11\ Since 
the cost of retaining counsel abroad to present and process 
letters rogatory is sometimes quite high, this provision is a 
significant advance in international legal cooperation. It is 
also understood that should the Requesting Party choose to hire 
private counsel for a particular request, it is free to do so 
at its own expense. Article 8 does obligate the Requesting 
Party to pay fees of experts, the costs of translation, 
interpretation, and transcription, and allowances and expenses 
related to travel of persons pursuant to Articles 11 and 12.
---------------------------------------------------------------------------
    \11\ See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, 
signed at Washington February 4, 1998, entered into force March 7, 
2000, art. 6.
---------------------------------------------------------------------------
    Paragraph 2 of this article provides that if it becomes 
apparent during the execution of a request that complete 
execution of a request would require extraordinary expenses, 
then the Central Authorities shall consult to determine the 
terms and conditions under which execution may continue.

   Article 9--Limitations on Use of the Results of Executed Requests

    Paragraph 1 states that the Central Authority of the 
Requested Party may require that the Requesting Party not use 
the results of the execution of a request obtained under the 
Treaty for purposes other than those described in the request 
without the prior consent of Central Authority of the Requested 
Party. If such a use limitation is required, the Requesting 
Party must comply with the requirement. It will be recalled 
that Article 5(2)(5) states that the Requesting Party must 
specify the purpose for which the information or evidence is 
needed.
    It is not anticipated that the Central Authority of the 
Requested Party will routinely request use limitations under 
paragraph 1. Rather, it is expected that such limitations will 
be requested sparingly, only when there is good reason to 
restrict the utilization of the evidence.
    Paragraph 2 states that nothing in Article 9 shall preclude 
the use or disclosure of information to the extent that there 
is an obligation to do so under the Constitution of the 
Requesting Party in a criminal prosecution.\12\ Any such 
proposed disclosure and the provision of the Constitution under 
which such disclosure is required shall be notified by the 
Requesting Party to the Requested Party in advance of any such 
possible or proposed use or disclosure.
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    \12\ See, Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------
    Paragraph 3 states that once results of an executed request 
have been used for the purpose for which they were provided 
and, in the course of such use, have been made public in the 
Requesting Party in accordance with the Treaty, the Requesting 
Party is free to use the evidence for any purpose. So, for 
example, when evidence obtained under the Treaty has been 
revealed to the public in a trial, that information effectively 
becomes part of the public domain, and is likely to become a 
matter of common knowledge, perhaps even be described in the 
press. The negotiators noted that once this has occurred, it is 
practically impossible for the Central Authority of the 
Requesting Party to block the use of that information by third 
parties.
    It should be noted that under Article 1(4), the 
restrictions outlined in Article 9 are for the benefit of the 
Parties, and the invocation and enforcement of these provisions 
are left entirely to the Parties. If a person alleges that a 
Russian authority has used information or evidence obtained 
from the United States in a manner inconsistent with this 
article, the person can inform the Central Authority of the 
United States of the allegations for consideration as a matter 
between the Parties.

  Article 10--Obtaining Testimony and Evidence in the Requested Party

    Paragraph 1 states that a person in the Requested Party 
from whom testimony and evidence, including documents, records, 
or other items, is sought shall be compelled, if necessary, to 
appear and testify and produce such documents, records, or 
items, in accordance with the law of the Requested Party. The 
compulsion contemplated by this article can be accomplished by 
subpoena or any other means available under the law of the 
Requested Party. \13\
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    \13\ The U.S. and Russian delegations discussed the possibility of 
an Annex to the Treaty including forms for the Certification of 
Business Records and the Certification of Absence of Business Records 
along the lines of those included in the Annex to the U.S.-Czech 
Republic Legal Assistance Treaty, Treaty Doc. 105-47, and discussed in 
Article 10 of the U.S.-Czech Republic Treaty. The delegations 
ultimately decided not to include such forms in the Treaty, but the 
Russian delegation indicated that in practice the Russian Government 
would ask an appropriate person to complete such forms whenever the 
U.S. Central Authority specifically requested such assistance in 
connection with a request under this Treaty. Such cooperation on the 
part of the Russian Government would be consistent with Article 7(3) of 
the Treaty. As a result, the U.S. expects to use forms along the lines 
of Forms A and B attached to the U.S.-Czech Republic Treaty to 
facilitate the effective use of the U.S.-Russia Treaty.
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    Paragraph 2, read in conjunction with Article 7.7, provides 
that any persons specified in the request, including the 
defendant and his counsel in criminal cases, shall be permitted 
by the Requested Party to be present and permitted to pose 
questions directly or to formulate questions that shall be 
posed to the person giving the testimony, and to make a 
verbatim transcript of the proceeding, using technical means if 
necessary.
    Paragraph 3 states that if a witness asserts a claim of 
immunity, incapacity, or privilege under the laws of the 
Requesting Party, the Requested Party shall nonetheless take 
the evidence and turn it over to the Requesting Party along 
with notice that it was obtained over a claim of privilege. The 
applicability of the privilege can then be determined in the 
Requesting Party, where the scope of the privilege and the 
legislative and policy reasons underlying the privilege are 
best understood. A similar provision appears in many of our 
recent mutual legal assistance treaties.\14\ It is understood 
that when a person asserts a claim of immunity, incapacity or 
privilege under the laws of the Requested Party, that claim 
will be resolved in accordance with the law of the Requested 
party. This is consistent with Article 7(3), and ensures that 
no person will be compelled to furnish information if he has a 
right not to do so under the law of the Requested Party. Thus, 
a witness questioned in the United States pursuant to a request 
from Russia is guaranteed the right to invoke any of the 
testimonial privileges (e.g., attorney client, husband-wife) 
available in the United States as well as the constitutional 
privilege against self-incrimination, to the extent that it 
might apply in the context of evidence being taken for foreign 
proceedings.\15\ A witness testifying in Russia may raise any 
of the similar privileges available under the law of Russia.
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    \14\ See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, 
signed at Bridgetown February 28, 1996, entered into force March 3, 
2000, art. 8(4).
    \15\ This is consistent with the approach taken in Title 28, United 
States Code, Section 1782.
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        Article 11--Obtaining Testimony in the Requesting Party

    This article provides that upon request, the Requested 
Party shall invite persons in that Party to travel to the 
Requesting Party to appear before an appropriate authority. The 
Requesting Party would be expected to pay the expenses of such 
an appearance pursuant to Article 8. Therefore, Article 11 
provides that the Requesting Party must indicate the extent to 
which expenses and allowances will be paid to the invited 
person. It is assumed that such expenses would normally include 
the costs of transportation, as well as room and board. When 
the person is to appear in the United States, a nominal witness 
fee would also be provided. A person who agrees to appear in 
the Requesting Party may request an advance, which may be 
provided through the Embassy or a consulate of the Requesting 
Party, to cover expenses.
    The Central Authority of the Requested Party shall promptly 
inform the Central Authority of the Requesting Party of the 
invitee's response. An appearance in the Requesting Party under 
this article is not mandatory, and the invitation may be 
refused by the prospective witness.
    Paragraph 2 provides that a person appearing in the 
Requesting Party under this Article shall not be subject to 
service of process, or be detained or subjected to any 
restriction of personal liberty, by reason of acts or 
convictions that preceded the person's departure for the 
Requesting Party from the Requested Party. It is understood 
that this provision would not prevent the prosecution of a 
person for perjury or any other crime committed while in the 
Requesting Party pursuant to this provision or thereafter. If 
such guarantee cannot be provided for any reason, the Central 
Authority of the Requesting Party shall indicate this in the 
request in order to inform the invited person, who may then 
decide whether to appear in view of the fact that such 
guarantees could not be provided.
    Paragraph 3 states that any safe conduct provided for under 
this article expires seven days after the Central Authority of 
the Requesting Party has notified the Central Authority of the 
Requested Party that the person's presence is no longer 
required, or if the person leaves the territory of the 
Requesting Party and thereafter returns to it. However, the 
Central Authority of the Requesting Party may extend the safe 
conduct up to fifteen days if it determines that there is good 
cause to do so.

               Article 12--Transfer of Persons in Custody

    In some criminal cases, a need arises for the testimony in 
one country of a witness in custody in another country. In some 
instances, foreign countries are willing and able to ``lend'' 
witnesses to the U.S. Government, provided the witnesses would 
be carefully guarded while in the United States and returned to 
the foreign country at the conclusion of the testimony. On 
occasion, the U.S. Justice Department has arranged for 
consenting federal inmates in the United States to be 
transported to foreign countries to assist in criminal 
proceedings.\16\
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    \16\ For example, in September, 1986, the United States Justice 
Department and the United States Drug Enforcement Administration 
arranged for four federal prisoners to be transported to the United 
Kingdom to testify for the Crown in Regina v. Dye, Williamson, Ells, 
Davies, Murphy, and Millard, a major narcotics prosecution in ``the Old 
Bailey'' (Central Criminal Court) in London.
---------------------------------------------------------------------------
    Paragraph 1 provides an express legal basis for cooperation 
in these matters. It is based on Article 26 of the U.S.-
Switzerland Mutual Legal Assistance Treaty,\17\ which in turn 
is based on Article 11 of the European Convention on Mutual 
Assistance in Criminal Matters.\18\ It provides that persons in 
custody in one Party whose presence in the other Party is 
sought for purposes of legal assistance under the Treaty shall 
be transferred in custody for that purpose provided that the 
person consents and the Central Authorities of both states 
agree. This would also cover a situation in which a person in 
custody in the United States on a criminal matter has sought 
permission to travel to another country to be present at a 
deposition being taken there in connection with the case.\19\
---------------------------------------------------------------------------
    \17\ U.S.-Switzerland Mutual Legal Assistance Treaty, signed at 
Bern May 25, 1973, entered into force January 23, 1977, art. 26, 27 
U.S.T. 2019, TIAS No. 8302, 1052 UNTS 61.
    \18\ This is consistent with Title 18, United States Code, Section 
3508, which provides for the transfer to the United States of witnesses 
in custody in other States whose testimony is needed at a federal 
criminal trial.
    \19\ See, also, United States v. King, 552 F.2d 833 (9th Cir. 
1976), cert. denied, 430 U.S. 966 (1977), where the defendants insisted 
on traveling to Japan to be present at the deposition of certain 
witnesses in prison there.
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    Paragraph 2 provides express authority for the receiving 
Party to keep such a person in custody throughout the person's 
stay there, unless the sending Party specifically authorizes 
release. This paragraph also authorizes and obligates the 
receiving Party to return the person in custody to the sending 
Party as soon as circumstances permit or as otherwise agreed, 
and provides that this return will occur in accordance with 
terms and conditions agreed upon by the Central Authorities. 
The initial transfer of a prisoner under this article requires 
the consent of the person involved and of both Central 
Authorities, but the provision does not require that the person 
consent to be returned to the sending Party.
    In keeping with the obligation under subparagraph 2(2) to 
return a person transferred under this article, subparagraph 
(3) explicitly prohibits the Party to whom a person is so 
transferred from requiring the transferring Party to initiate 
extradition proceedings for that purpose. Paragraph (2)(4) 
states that the person is to receive credit for time served 
while in the custody of the receiving Party. This is consistent 
with U.S. practice in these matters. Paragraph 2(5) states that 
where the sentence imposed has expired, or where the sending 
Party has advised the receiving Party that the transferred 
person is no longer required to be held in custody, that person 
shall be treated as an invited person pursuant to Article 11 or 
returned to the sending Party.
    Article 12 does not provide for any specific ``safe 
conduct'' for persons transferred under this article, because 
it is anticipated that the authorities of the two countries 
will deal with such situations on a case-by-case basis. If the 
person in custody is unwilling to be transferred without safe 
conduct, and the Receiving Party is unable or unwilling to 
provide satisfactory assurances in this regard, the person is 
free to decline to be transferred.

               Article 13--Production of Official Records

    Paragraph 1 obliges each Party to furnish the other with 
copies of publicly available records, including documents or 
information in any form, possessed by an executive, 
legislative, or judicial authority in the Requested Party. The 
phrase ``executive, legislative, or judicial authority'' covers 
all levels of government, including, for the United States, 
federal, state and local levels of government. \20\
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    \20\ The U.S. and Russian delegations discussed the possibility of 
an Annex to the Treaty including forms for the Certification of 
Official Records and the Certification of Absence of Official Records 
along the lines of those included as Forms C and D in the Annex to the 
U.S.-Czech Republic Legal Assistance Treaty, Treaty Doc. 105-47, and 
discussed in Article 13 of the U.S.-Czech Republic Treaty. The 
delegations ultimately decided not to include such forms in the Treaty, 
but the Russian delegation indicated that in practice the Russian 
Government would ask an appropriate person to complete such forms 
whenever the U.S. Central Authority specifically requested such 
assistance in connection with a request under this Treaty. Such 
cooperation on the part of the Russian Government would be consistent 
with Article 7(3) of the Treaty. As a result, the U.S. expects to use 
forms along the lines of Forms C and D attached to the U.S. Czech 
Republic Treaty to facilitate the effective use of the U.S.-Russia 
Treaty.
---------------------------------------------------------------------------
    Paragraph 2 provides that the Requested Party may share 
with its Treaty partner copies of nonpublic information in 
government files. The undertaking under this provision is 
discretionary, and such requests may be denied in whole or in 
part. Moreover, the article states that the Requested Party may 
only exercise its discretion to turn over information in its 
files ``to the same extent and under the same conditions'' as 
it would to its own competent authorities. It is intended that 
the Central Authority of the Requested Party, in close 
consultation with the interested law enforcement authorities of 
that Party, would determine that extent and those conditions.
    The discretionary nature of this provision was deemed 
necessary because government files in each Party contain some 
kinds of information that would be available to investigative 
authorities in that Party, but that justifiably would be deemed 
inappropriate to release to a foreign government. For example, 
assistance might be deemed inappropriate where the information 
requested would identify or endanger an informant, prejudice 
sources of information needed in future investigations, or 
reveal information that was given to the Requested Party in 
return for a promise that it not be divulged. Of course, a 
request could be denied under this clause if the Requested 
Party's law bars disclosure of the information.
    The delegations discussed whether this article should serve 
as a basis for exchange of information in tax matters. It was 
the intention of the U.S. delegation that the United States be 
able to provide assistance under the Treaty for tax offenses, 
as well as to provide information in the custody of the 
Internal Revenue Service for both tax offenses and non-tax 
offenses under circumstances that such information is available 
to U.S. law enforcement authorities. The U.S. delegation was 
satisfied after discussion that this Treaty, like most other 
U.S. mutual legal assistance treaties, is a ``convention 
relating to the exchange of tax information'' for purposes of 
Title 26, United States Code, Section 6103(k)(4), and the 
United States would have the discretion to provide tax return 
information to Russia under this article in appropriate cases.

      Article 14--Location or Identification of Persons and Items

    This article provides for ascertaining the whereabouts in 
the Requested Party of persons (such as witnesses, potential 
defendants, or experts) or items if the Requesting Party seeks 
such information. This is a standard provision contained in all 
U.S. mutual legal assistance treaties. The Treaty requires only 
that the Requested Party make ``best efforts'' to locate the 
persons or items sought by the Requesting Party. The extent of 
such efforts will vary, of course, depending on the quality and 
extent of the information provided by the Requesting Party 
concerning the suspected location and last known location.
    The obligation to locate persons or items is limited to 
persons or items that are or may be in the territory of the 
Requested Party. Thus, the United States would not be obliged 
to attempt to locate persons or items which may be in third 
countries. In all cases, the Requesting Party would be expected 
to supply all available information about the last known 
location of the persons or items sought.

                    Article 15--Service of Documents

    This article creates an obligation on the Requested Party 
to use its best efforts to effect the service of documents such 
as summons, complaints, subpoenas, or other legal papers. 
Identical provisions appear in most U.S. mutual legal 
assistance treaties. \21\
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    \21\ See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty, 
signed at Washington, January 16, 1998, entered into force August 26, 
1999, art. 13.
---------------------------------------------------------------------------
    It is expected that when the United States is the Requested 
Party, service under the Treaty will be made by registered mail 
(in the absence of any request by Russia to follow a specified 
procedure for service) or by the United States Marshal's 
Service in instances in which personal service is requested.
    Paragraph 2 provides that when the documents to be served 
call for the appearance of a person in the Requesting Party, 
the documents should be transmitted by the Central Authority of 
the Requesting Party within a reasonable time before the date 
set for any such appearance.
    Paragraph 3 requires that proof of service be returned to 
the Requesting Party in the manner specified in the request.

                     Article 16--Search and Seizure

    It is sometimes in the interests of justice for one Party 
to ask another to search for, secure, and deliver articles or 
objects needed in the former as evidence or for other purposes. 
U.S. courts can and do execute such requests under Title 28, 
United States Code, Section 1782.\22\ This article creates a 
formal framework for handling such requests and is similar to 
provisions in many other U.S. mutual legal assistance 
treaties.\23\
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    \22\ See, e.g., United States Ex Rel Public Prosecutor of 
Rotterdam, Netherlands v. Richard Jean Van Aalst, Case No 84-52-M-01 
(M.D. Fla., Orlando Div.) (search warrant issued February 24, 1984).
    \23\ See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed 
at Washington June 13, 1997, entered into force September 17, 1999, 
art. 15.
---------------------------------------------------------------------------
    Article 16 requires that the search and seizure request 
include ``information justifying such action under the laws of 
the Requested Party.'' This means that normally a request to 
the United States from Russia will have to be supported by a 
showing of probable cause for the search. A U.S. request to 
Russia would have to satisfy the corresponding evidentiary 
standard there, which is ``a reasonable basis to believe'' that 
the specified premises contains articles likely to be evidence 
of the commission of an offense.
    Paragraph 2 is designed to ensure that a record is kept of 
articles seized and of articles delivered up under the Treaty. 
This provision requires that, upon request, every official who 
has had custody of a seized item shall certify the identity, 
the continuity of its custody, and the integrity of its 
condition. \24\
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    \24\ The U.S. and Russian delegations discussed the possibility of 
an Annex to the Treaty including a form for Certification with Respect 
to Seized Items along the lines of that included as Form E in the Annex 
to the U.S.-Czech Republic Legal Assistance Treaty, Treaty Doc. 105-47, 
and discussed in Article 16 of the U.S.-Czech Republic Treaty. The 
delegations ultimately decided not to include such forms in the Treaty, 
but the Russian delegation indicated that in practice the Russian 
Government would ask an appropriate person to complete such forms 
whenever the U.S. Central Authority specifically requested such 
assistance in connection with a request under this Treaty. Such 
cooperation on the part of the Russian Government would be consistent 
with Article 7(3) of the Treaty. As a result, the U.S. expects to use 
forms along the lines of Form E attached to the U.S.-Czech Republic 
Treaty to facilitate the effective use of the U.S.-Russia Treaty.
---------------------------------------------------------------------------
    Paragraph 3 states that the Requested Party may require 
that the Requesting Party agree to terms and conditions 
necessary to protect the interests of third parties in the item 
to be transferred.

      Article 17--Transfer of Documents, Records, and Other Items

    Paragraph 1 provides that upon request for the transfer of 
documents or records, a Requesting Party must provide true 
copies of the documents or records. If the Requesting Party, 
however, expressly requests the transfer of original documents 
or records, the Requested Party must make every effort to 
comply with the request.
    Paragraph 2 states that, unless prohibited by its laws, a 
Requested Party must transfer documents, records, or other 
items in such a manner or with a particular certification as 
may be requested by the Requesting Party in order to ensure 
admissibility under the laws of the Requesting Party. The 
second sentence of this paragraph notes that the Central 
Authorities of the Parties will directly communicate, pursuant 
to Article 3(3), with respect to the requirements for 
admissibility in their respective legal systems.
    The last sentence of paragraph 2 provides that documents, 
records, and other items transferred in accordance with this 
paragraph--that is, those produced pursuant to Articles 10, 13 
and 16--shall not require any further certification in order to 
make them admissible. Of course, it will be up to the judicial 
authority presiding over the trial to determine whether the 
evidence, in fact, should be admitted. The evidentiary tests 
other than authentication (such as relevance or materiality) 
must be established in each case.
    Paragraph 3 of this article provides that the Requested 
Party may require that any documents, records, or items 
furnished under the Treaty be returned as soon as possible. The 
delegations understood that this requirement would be invoked 
only if the Central Authority of the Requested Party 
specifically requests it at the time that the items are 
delivered to the Requesting Party. It is anticipated that 
unless original records or articles of significant intrinsic 
value are involved, the Requested Party will not usually 
request return of the times, but this is a matter best left to 
development in practice.

          Article 18--Proceeds and Instrumentalities of Crimes

    A major goal of the Treaty is to enhance the efforts of 
both the United States and Russia in combating organized crime. 
One significant strategy in this effort is action by U.S. 
authorities to seize and confiscate money, property, and other 
proceeds of members of the organized crime groups.
    This article is similar to a number of U.S. mutual legal 
assistance treaties, including Article 16 of the U.S.-Barbados 
Mutual Legal Assistance Treaty and Article 17 of the U.S.-
Latvia Mutual Legal Assistance Treaty. Paragraph 1 obligates 
the Parties to assist one another, in accordance with their 
laws, in locating, immobilizing, and seizing proceeds, 
including earnings from, or that are the result of, criminal 
activities, as well as instrumentalities of offenses, for 
purposes of: forfeiture; restitution to victims of crime; and 
collection of fines imposed pursuant to judicial decisions in 
criminal matters. Thus, if the law of a Requested Party enable 
it to seize assets in aid of a proceeding in the Requesting 
Party or to enforce a judgment of forfeiture levied in the 
Requesting Party, the Treaty provides that the Requested Party 
shall do so. The language of the article is carefully selected, 
however, so as not to require either Party to take any action 
that would exceed its internal legal authority. It does not, 
for instance, mandate institution of forfeiture proceedings or 
initiation of temporary immobilization in either country 
against property identified by the other if the relevant 
prosecution officials do not deem it proper to do so. \25\
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    \25\ In Russia, unlike the United States, the law does not allow 
for civil forfeiture. However, Russian law permits forfeiture in 
criminal cases, and ordinarily a defendant must be convicted in order 
for Russian authorities to confiscate the defendant's property.
---------------------------------------------------------------------------
    Paragraph 2 of Article 18 authorizes the Central Authority 
of one Party to notify the other Party of the existence in the 
latter's territory of proceeds and instrumentalities of 
offenses that may be forfeitable so that the other Party may 
take appropriate measures under paragraph 3 of this article. 
The term ``proceeds and instrumentalities'' was intended to 
include things such as money, vessels, or other valuables 
either used in the crime or purchased or obtained as a result 
of the crime.
    Upon receipt of notice under this article, the Central 
Authority of the Party in which the proceeds or 
instrumentalities are located may take whatever action is 
appropriate under its law. For instance, if the assets in 
question are located in the United States and were obtained as 
a result of a fraud in Russia, the assets could be seized under 
Title 18, United States Code, Section 981 in aid of a 
prosecution under Title 18, United States Code, Section 
2314,\26\ or be subject to a temporary restraining order in 
anticipation of a civil action for the return of the assets to 
the lawful owner. Proceeds of a foreign kidnaping, robbery, 
extortion or a fraud by or against a foreign bank are civilly 
and criminally forfeitable in the United States since these 
offenses are predicate offenses under U.S. money laundering 
laws.\27\ Thus, it is a violation of U.S. criminal law to 
launder the proceeds of these foreign fraud or theft offenses, 
when such proceeds are brought into the United States.
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    \26\ This statute makes it an offense to transport money or 
valuables in interstate or foreign commerce knowing that they were 
obtained by fraud in the United States or abroad. Proceeds of such 
activity become subject to forfeiture pursuant to Title 18, United 
States Code, Section 981 by way of Title 18, United States Code, 
Section 1956 and Title 18, United States Code, Section 1961. The 
forfeiture statute applies to property involved in transactions in 
violation of Title 18 United States Code, Section 1956, which covers 
any activity constituting an offense defined by section 1961(1), which 
includes, among others, Title 18, United States Code, Section 2314.
    \27\ Title 18, United States Code, Section 1956(c)(7)(B).
---------------------------------------------------------------------------
    If the assets are the proceeds of drug trafficking, it is 
especially likely that the Contracting Parties will be able and 
willing to help one another. Title 18, United States Code, 
Section 981(a)(1)(B), allows for the forfeiture to the United 
States of property ``which represents the proceeds of an 
offense against a foreign nation involving the manufacture, 
importation, sale, or distribution of a controlled substance 
(as such term is defined for the purposes of the Controlled 
Substance Act) within whose jurisdiction such offense or 
activity would be punishable by death or imprisonment for a 
term exceeding one year if such act or activity had occurred 
within the jurisdiction of the United States.'' This is 
consistent with the laws in other countries, such as 
Switzerland and Canada; there is a growing trend among nations 
toward enacting legislation of this kind in the battle against 
narcotics trafficking.\28\ The U.S. delegation expects that 
Article 18 of the Treaty will enable this legislation to be 
even more effective.
---------------------------------------------------------------------------
    \28\ Article 5 of the United Nations Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances, calls for the 
States that are party to enact legislation to forfeit illicit drug 
proceeds and to assist one another in such matters. United Nations 
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances, with annex and final act, done at Vienna, December 20, 
1988.
---------------------------------------------------------------------------
    U.S. law permits the government to transfer a share of 
certain forfeited property to other countries that participate 
directly or indirectly in the seizure or forfeiture of the 
property. Under regulations promulgated by the Attorney 
General, the amount transferred generally reflects the 
contribution of the foreign government in law enforcement 
activity which led to the seizure and forfeiture of the 
property. The law requires that the transfer be authorized by 
an international agreement between the United States and the 
foreign country, and be approved by the Secretary of State.\29\ 
Paragraph 3 is consistent with this framework in that it 
obligates a Party having custody over proceeds or 
instrumentalities of offenses to transfer immobilized, seized, 
or forfeited proceeds, or the proceeds of the sale of such 
assets, to the other Party, but only if such transfer is 
permitted by its laws and to the extent it deems it appropriate 
and within the time frame and under the conditions it deems 
acceptable.
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    \29\ See, Title 18, United States Code, Section 981(i)(1).
---------------------------------------------------------------------------

                        Article 19--Consultation

    Experience has shown that as the parties to a treaty of 
this kind work together over the years, they become aware of 
various practical ways to make the treaty more effective and 
their own efforts more efficient. This article anticipates that 
the Contracting Parties will share those ideas with one 
another, and encourages them to agree on the implementation of 
such measures. Practical measures of this kind might include 
methods of keeping each other informed of the progress of 
investigations and cases in which treaty assistance was 
utilized. Similar provisions are contained in recent United 
States mutual legal assistance treaties. It is anticipated that 
the Central Authorities will conduct regular consultations 
pursuant to this article.

                    Article 20--Scope of Application

    This article provides that any request presented after this 
Treaty enters into force shall be executed pursuant to the 
Treaty even if the underlying acts or omissions occurred before 
that date. Provisions of this kind are common in law 
enforcement agreements.

             Article 21--Other Legal Bases for Cooperation

    This article states that assistance and procedures set 
forth in this Treaty shall not prevent either Party from 
cooperating and granting assistance to the other Party through 
the provisions of other applicable international treaties and 
agreements, national laws, and practices. The Treaty would 
leave the provisions of United States and Russian law on 
letters rogatory completely undisturbed, and would not alter 
any pre-existing agreements \30\ concerning investigative 
assistance.
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    \30\ See, e.g., Agreement on Cooperation and Mutual Assistance in 
Customs Matters, signed at Washington Sept. 28, 1994, entered into 
force December 15, 1994; Convention for the Avoidance of Double 
Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on 
Income and Capital, signed at Washington June 17, 1992, entered into 
force December 16, 1993.
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              Article 22--Entry Into Force and Termination

    Paragraph 1 states that the Treaty is subject to 
ratification and shall enter into force upon the exchange of 
instruments of ratification, which shall take place as soon as 
possible.
    Paragraph 2 provides that the Agreement between the 
Government of the United States of America and the Government 
of the Russian Federation on Cooperation in Criminal Matters, 
signed on June 30, 1995, shall cease to be in force upon entry 
into force of this Treaty.
    Paragraph 3 states that either Party may terminate this 
Treaty via written notice to the other Party through the 
diplomatic channel. Termination shall take effect six months 
after the date of receipt of written notification. Similar 
termination provisions are included in other United States 
mutual legal assistance treaties.

     VII. Text of Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE Treaty WITH THE 
                    RUSSIAN FEDERATION ON MUTUAL LEGAL ASSISTANCE IN 
                    CRIMINAL MATTERS, SUBJECT TO CONDITIONS.

    The Senate advises and consents to the ratification of the 
Treaty Between the United States of America and the Russian 
Federation on Mutual Legal Assistance in Criminal Matters, 
signed at Washington on June 17, 1999 (Treaty Doc. 106-22; in 
this resolution referred to as the ``Treaty''), subject to the 
conditions in section 2.

SEC. 2. CONDITIONS.

    The advice and consent of the Senate under section 1 is 
subject to the following conditions:
          (1) Treaty interpretation.--The Senate reaffirms 
        condition (8) of the resolution of ratification of the 
        Document Agreed Among the States Parties to the Treaty 
        on Conventional Armed Forces in Europe (CFE) of 
        November 19, 1990 (adopted at Vienna on May 31 1996), 
        approved by the Senate on May 14, 1997 (relating to 
        condition (1) of the resolution of ratification of the 
        INF Treaty, approved by the Senate on May 27, 1988).
          (2) Limitation on assistance.--Pursuant to the right 
        of the United States under the Treaty to deny legal 
        assistance under the Treaty that would prejudice the 
        essential public policy or interests of the United 
        States, the United States shall deny any request for 
        such assistance if the Central Authority of the United 
        States (as designated in Article 3(2) of the Treaty), 
        after consultation with all appropriate intelligence, 
        anti-narcotic, and foreign policy agencies, has 
        specific information that a senior Government official 
        of the requesting party who will have access to 
        information to be provided as part of such assistance 
        is engaged in a felony, including the facilitation of 
        the production or distribution of illegal drugs.
          (3) Supremacy of the Constitution.--Nothing in the 
        Treaty requires or authorizes the enactment of 
        legislation or the taking of any other action by the 
        United States that is prohibited by the Constitution of 
        the United States as interpreted by the United States.

                            A P P E N D I X

                              ----------                              

                              Hon. Colin L. Powell,
                                        Secretary of State,
                                 Washington, DC, December 11, 2001.

Hon. Joseph R. Biden, Jr, Chairman,
United States Senate,
Committee on Foreign Relations,
Washington, DC.

    Dear Mr. Chairman: I am writing to seek your support to 
improve legal cooperation between the United States and Russia 
as an important weapon in our war on terrorism and other 
serious crimes.
    I discussed this priority when I met with Foreign Minister 
Ivanov in Moscow December 9. While law enforcement cooperation 
has been increasing steadily for some time, Minister Ivanov 
told me that entry into force of our Mutual Legal Assistance 
Treaty would provide a solid legal and legally-binding basis 
for our work on combating transnational organized crime and 
international terrorism. The Russians have indicated that 
Russia's legal authority to assist us in criminal 
investigations and prosecutions, including those connected with 
September 11, will be significantly enhanced once the Treaty is 
brought into force.
    I explained to Minister Ivanov that the Administration was 
seeking rapid action on advice and consent to ratification by 
the Senate. He assured me that the Russian Federation would 
work closely with the United States to ensure the effective 
implementation of this Treaty.
        Sincerely,
                                   Colin L. Powell.

                                  
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