99–115

107TH CONGRESS EXEC. RPT.

1st Session " ! SENATE 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

REPORT

[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

2

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

3

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 proVerDate 11-MAY-2000 16:37 Dec 14, 2001 Jkt 000000 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 MLAT.XYW SFORELA2 PsN: SFORELA2
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1The 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. 2One 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); Fon- seca 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.

vided 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.

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

5

4See, United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984), cert. denied, 469 U.S. 1075

(1984).

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.

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 assistVerDate 11-MAY-2000 16:37 Dec 14, 2001 Jkt 000000 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 MLAT.XYW SFORELA2 PsN: SFORELA2
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5 28 C.F.R. §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). 6This 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

ance 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.

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

7

Mark M. Richard, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice). 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. 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.

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

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.

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.

8

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

9

9Title 18, United States Code, Section 3505.

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.

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

10

10This 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).

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.

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

11

11See, e.g., U.S.-Czech Republic Mutual Legal Assistance Treaty, signed at Washington February 4, 1998, entered into force March 7, 2000, art. 6.

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.

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

12

12See, Brady v. Maryland, 373 U.S. 83 (1963). 13The 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.

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.

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

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

13

14See, e.g., U.S.-Barbados Mutual Legal Assistance Treaty, signed at Bridgetown February 28,

1996, entered into force March 3, 2000, art. 8(4). 15This is consistent with the approach taken in Title 28, United States Code, Section 1782.

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.

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.

14

16For 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. 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. 18This 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. 19See, 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.

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

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

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

15

20The 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.

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

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

16

21See, e.g., U.S.-Lithuania Mutual Legal Assistance Treaty, signed at Washington, January

16, 1998, entered into force August 26, 1999, art. 13.

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

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.

17

22See, 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). 23See, e.g., U.S.-Latvia Mutual Legal Assistance Treaty, signed at Washington June 13, 1997,

entered into force September 17, 1999, art. 15. 24The 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 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

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

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

18

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.

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

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

19

26This 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. 27Title 18, United States Code, Section 1956(c)(7)(B). 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.

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.

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.

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

20

29See, Title 18, United States Code, Section 981(i)(1). 30See, 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.

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.

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.

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.

21

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.

(23)

APPENDIX

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.

Æ