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[Senate Treaty Document 107-3]
[From the U.S. Government Publishing Office]

107th Congress                                              Treaty Doc.
                                  SENATE                     
 2d Session                                                    107-3
_______________________________________________________________________

                                     

 
   TREATY WITH INDIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

TREATY BETWEEN THE GOVERNMENT OF THE REPUBLIC OF INDIA ON MUTUAL LEGAL 
ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT NEW DELHI ON OCTOBER 17, 2001

 April 8, 2002.--Treaty was read the first time, and together with the 
accompanying papers, referred to the Committee on Foreign Relations and 
            ordered to be printed for the use of the Senate

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
99-118                     WASHINGTON : 2002

                         LETTER OF TRANSMITTAL

                              ----------                              

                                    The White House, April 8, 2002.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the Treaty between 
the Government of the United States of America and the 
Government of the Republic of India on Mutual Legal Assistance 
in Criminal Matters, signed at New Delhi on October 17, 2001. I 
transmit also, for the information of the Senate, the report of 
the Department of State with respect to the Treaty.
    The Treaty is one of a series of modern mutual legal 
assistance treaties that the United States has concluded or is 
negotiating in order to counter criminal activities more 
effectively. The Treaty should be an effective tool to assist 
in the investigation and prosecution of a wide variety of 
modern crimes, including terrorism-related crimes, drug 
trafficking, and ``white collar'' crimes. The Treaty is self-
executing.
    The Treaty provides for a broad range of cooperation in 
criminal matters and related proceedings. Mutual assistance 
available under the Treaty includes: (1) Taking the testimony 
or statements of persons; (2) providing documents, records, and 
items of evidence; (3) locating or identifying persons or 
items; (4) serving documents; (5) transferring persons in 
custody for testimony or other purposes; (6) executing requests 
for searches and seizures; (7) assisting in proceedings 
relating to seizure and forfeiture of assets, restitution, and 
collection of fines; and (8) rendering any other form of 
assistance not prohibited by the laws of the Requested State.
    I recommend that the Senate give early and favorable 
consideration to the Treaty and give its advice and consent to 
ratification.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                    The Secretary of State,
                                       Washington, January 9, 2002.
    The President: I have the honor to submit to you the Treaty 
between the Government of the United States of America and the 
Government of the Republic of India on Mutual Legal Assistance 
in Criminal Matters (the ``Treaty''), signed at New Delhi on 
October 17, 2001. I recommend that the Treaty be transmitted to 
the Senate for its advice and consent to ratification.
    The Treaty covers mutual legal assistance in criminal 
matters. During 2001, similar bilateral treaties entered into 
force with France, Egypt, Romania, Greece, South Africa, 
Ukraine, Brazil, and Luxembourg. This Treaty contains many 
provisions similar to those in these other treaties and all of 
the essential provisions sought by the United States. It will 
enhance our ability to investigate and prosecute a variety of 
offenses, including organized crime, terrorism-related crime, 
drug trafficking, economic crimes, money laundering, and other 
forms of white collar crime of particular interest to the law 
enforcement community. The Treaty is designed to be self-
executing and will not require implementing legislation.
    Article 1 sets out the scope of assistance available under 
the Treaty. Article 1(2) contains a non-exhaustive list of the 
major types of assistance to be provided under the Treaty, 
including: taking the testimony or statements of persons; 
providing documents, records, and items of evidence; locating 
or identifying persons or items; serving documents; 
transferring persons in custody for testimony or other 
purposes; executing requests for searches and seizures; 
assisting in proceedings related to seizure and forfeiture of 
assets, restitution, and collection of fines; and any other 
form of assistance not prohibited by the laws of the Requested 
State. The scope of the Treaty includes the obligation to 
provide assistance not only with respect to the investigation, 
prosecution, and prevention of criminal offenses, but also with 
respect to proceedings related to criminal matters, which may 
be civil or administrative in nature. Article 1(3) states that 
assistance must be provided without regard to whether the 
conduct that is the underlying subject to the investigation, 
prosecution, or proceeding in the Requesting State would 
constitute an offense in the Requested State. Article 1(4) 
makes clear that the Treaty is not designed to be utilized by 
non-governmental parties or institutions who seek evidence for 
use in private matters. Similarly, the Treaty is not intended 
to create any right on the part of a private person to obtain, 
suppress, or exclude evidence, or to impede the execution of a 
request.
    Article 2 provides for the establishment of Central 
Authorities and defines the Central Authorities for purposes of 
the Treaty. For the United States, the Central Authority is the 
Attorney General or a person designated by the Attorney 
General. For India, the Central Authority is the Ministry of 
Home Affairs or a person designated by the Ministry of Home 
Affairs. The article also provides that the Central Authorities 
shall communicate directly with one another for the purposes of 
the Treaty.
    Article 3 sets forth the circumstances under which the 
Requested State's Central Authority may deny assistance under 
the Treaty. A request may be denied if it relates to the 
military offense that would not be a crime under ordinary 
criminal law, or if its execution would prejudice the security 
or similar essential interests of the Requested State. In 
addition, a request may be denied if the request relates to a 
political offense (a term expected to be defined on the basis 
of the term's usage in extradition treaties) or is not made in 
conformity with the Treaty. As a number of mutual legal 
assistance treaties have done recently, Article 3 enumerates 
several serious offenses that will not be considered political 
offenses, including those proscribed in the three UN narcotics 
conventions and most of the offenses proscribed by the UN 
counter-terrorism conventions to which the United States is a 
party.
    Before denying assistance under Article 3, the Central 
Authority of the Requested State is required to consult with 
its counterpart in the Requesting State to consider whether 
assistance can be given subject to such conditions as the 
Central Authority of the Requested State deems necessary. If 
the Requesting State accepts assistance subject to conditions, 
it must comply with them. If the Central Authority of the 
Requested State denies assistance, it must inform the Central 
Authority of the Requesting State of the reasons for the 
denial.
    Article 4 prescribes the form and content of written 
requests under the Treaty, specifying in detail the information 
required to be provided to the Requested State in each case. 
The article permits requests to be made in other forms in 
urgent situations, but requires written confirmation of the 
request within ten days unless the Central Authority of the 
Requested State agrees otherwise. The article specifies further 
information to be provided, to the extent necessary and 
possible, to assist in locating individuals and items and 
effecting particular types of assistance. Unless otherwise 
agreed, all requests must be in English.
    Article 5 concerns the execution of request. Article 5(1) 
requires the Central Authority of the Requested State to 
execute promptly a request, or to transmit it to the authority 
with jurisdiction to do so. The competent authorities of the 
Requested State have authority to issue subpoenas, search 
warrants, or other orders necessary to execute the request. 
Under article 5(2), the Central Authority of the Requested 
State must make all necessary arrangements for the 
representation in the Requested State of the Requesting State 
in any proceedings arising out of a request.
    Under Article 5(3), requests are to be executed in 
accordance with the laws of the Requested State unless the 
Treaty provides otherwise. However, the method of execution 
specified in the request shall be followed except insofar as it 
is prohibited by the laws of the Requested State. Pursuant to 
Article 5(4), the Requested State cannot decline execution of a 
request on the ground of bank secrecy.
    If the Central Authority of the Requested State determines 
that execution of the request would interfere with an ongoing 
criminal investigation, prosecution, or proceeding, Article 
5(5) authorizes it to postpone execution, or after 
consultations with the Requesting State, impose conditions on 
such execution. If the Requesting State accepts assistance 
subject to such conditions, it must comply with them.
    Article 5 further requires the Requested State to use its 
best effort to keep confidential a request and its contents, if 
so requested, and to inform the Requesting State if the request 
cannot be executed without breaching confidentiality. The 
Requested State must also inform the Requesting State of the 
outcome of the request's execution and provide explanations for 
any denial, delay, or postponement.
    Article 6 appropriations between the two States the costs 
incurred in executing a request. It Provides that the Requested 
State must pay all costs, including the costs of 
representation, except for the fees of expert witnesses, 
translation costs, and travel expenses, which are the 
responsibility of the Requesting State, at the Requested 
State's request, not to use any information or evidence 
obtained under the Treaty for purposes unrelated to the 
investigation, prosecution, or proceedings described in the 
request without the prior consent of the Requested State. If 
the Requested State requests that information or evidence 
furnished be kept confidential, or be used subject to terms and 
conditions, the Requesting State is required to use its best 
efforts to comply with the conditions specified. However, the 
Article states that nothing in Article 7 precludes the use or 
disclosure of information or evidence that is exculpatory to a 
defendant in a criminal prosecution. The Requested State must 
be notified in advance of any such use or disclosure. Once 
information is made public in the Requesting State in 
accordance with the Treaty, no further limitations on use 
apply.
    Article 8 provides that the Requested State must compel, if 
necessary, the taking of testimony or production of documents 
or other evidence in its territory on behalf of the Requesting 
State. The article requires the Requested State, upon request, 
to inform the Requesting State in advance of the date and place 
of the taking of testimony or evidence.
    Article 8(3) requires the Requested State to permit the 
presence of any persons specified in the request (such as the 
accused, counsel for the accused, or other interested persons) 
and to permit such persons to pose questions to be asked of the 
person whose testimony or evidence is being taken. In the event 
that a person whose testimony or evidence is being taken 
asserts a claim of immunity, incapacity, or privilege under the 
laws of the Requesting State, Article 8(4) provides that the 
testimony or evidence is still to be taken and the claim made 
known to the Requesting State for resolution by its 
authorities.
    Finally, Article 8(5) states that evidence produced 
pursuant to this article or that has been the subject of 
testimony under this article shall be transmitted in a form or 
with a certification requested by the Requesting State in order 
to make it admissible in the Requesting State. The Treaty 
includes two forms that may be used when the United States is 
the Requesting Party in this scenario. Article 8(5) states that 
both the documents provided and the forms will be admissible in 
evidence in the United States. Form A is for certification of 
business records and Form B is for certification of the absence 
or nonexistence of business records.
    Article 9 requires that the Requested State provide the 
Requesting State with copies of publicly available records or 
information of government departments and agencies. Under 
Article 9(2), the Requested State may further provide copies of 
other records or information in the possession of a government 
department or agency but not publicly available, to the same 
extent and under the same conditions as it would to its own law 
enforcement or judicial authorities. Upon request, records 
produced pursuant to this article must be authenticated by the 
official of the Requested State who is responsible for 
maintaining them, and then transmitted in a form or with a 
certification requested by the Requesting State in order to 
make them admissible in the Requesting State. The Treaty 
includes two additional forms that may be used when the United 
States is the Requesting State in this scenario. Article 9(3) 
states that both the document provided and each form will be 
admissible in evidence in the United States. Form C is for 
attesting to the authenticity of official government records 
and Form D is for certification of the absence or nonexistence 
of official government records.
    Article 10 provides a mechanism for the Requesting State to 
invite the voluntary appearance and testimony of a person 
located in the Requested State and to indicate the extent to 
which expenses will be paid. The Central Authority of the 
Requested State is required to invite the person to appear and 
to promptly inform the Central Authority of the Requesting 
State of the person's response. Under Article 10(2), the person 
appearing in the Requesting State is protected from service of 
process, detention, or restriction of personal liberty, by 
reason of any acts or convictions preceding that person's 
departure from the Requested State. As Article 10(3) details, 
such ``safe conduct'' ceases ten days after the Central 
Authority of the Requesting State gives notice to the Central 
Authority of the Requested State that the person's presence is 
no longer required, or if the person voluntarily returns to the 
Requesting State after leaving it. The Requesting State may 
extend this period for up to twenty days.
    Article 11 provides for the voluntary transfer to the 
territory of one State of a person in custody in the other 
State for purposes of assistance under the Treaty, provided 
that the person in question and both Central Authorities agree. 
The article establishes the express authority and the 
obligation of the receiving State to maintain the person 
transferred in custody unless otherwise authorized by the 
sending State. It further obligates the receiving State to 
return the person to the sending State as soon as circumstances 
permit or as otherwise agreed by the Central Authorities, 
without the need for extradition proceedings. The person 
transferred will receive credit for the service of the sentence 
imposed in the sending State for time served in the custody of 
the receiving State.
    Article 12 provides that the Requested State may authorize 
transit through its territory of a person held in custody by 
the Requesting State or a third State, when that person's 
appearance was requested by the Requesting State in an 
investigation, prosecution, or proceeding. The Requested State 
must keep the person in custody during transit.
    Article 13 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items specified in a request.
    Article 14 requires the Requested State to use its best 
efforts to effect service of any documents relating, in whole 
or in part, to a request under the Treaty. The article further 
requires that the Requesting State transmit any request for the 
service of a document requiring a person to appear before an 
authority in the Requesting State within a reasonable time 
before the scheduled appearance. The Requested State is 
required to return proof of service in the manner specified in 
the request.
    Article 15 obligates the Requested State to execute 
requests for search, seizure, and delivery of any item to the 
Requesting State if the request includes the information 
justifying such action under the laws of the Requested State. 
The article further provides for the certification of the 
identity of the item, continuity of custody, and any changes in 
its condition. When the United States is the Requesting Party, 
the only certification required is the completion of Form E, 
found at the end of the Treaty, which form will be admissible 
in evidence in the United States. In addition, Article 15 
provides that the Central Authority of the Requested State may 
impose conditions on the transfer of the seized items to 
protect third-party interests in the items being transferred.
    Article 16 obliges the Central Authority of the Requesting 
State to return to the Requested State any documents, records, 
or other items furnished under the Treaty, if the Central 
Authority of the Requested State requires their return.
    Article 17 provides that, if the Central Authority of one 
State becomes aware of proceeds or instrumentalities of crimes 
that are located in the territory of the other State and that 
may be forfeitable or otherwise subject to seizure under the 
laws of that other State, it may so inform the other State. If 
the State receiving such information has jurisdiction in this 
regard, it may present this information to its authorities for 
a determination whether any action is appropriate. The Central 
Authority of the State receiving such information is required 
to inform the Central Authority of the State that provided the 
information of any action taken. Article 17 also obligates the 
States to assist one another to the extent permitted by their 
respective laws in proceedings involving the forfeiture of the 
proceeds and instrumentalities of offenses, restitution to the 
victims of crime, and collection of fines imposed as criminal 
sentences. The State having custody over proceeds or 
instrumentalities of offenses must dispose of them in 
accordance with its laws. Either State may transfer to the 
other State all or part of such assets, or the proceeds of 
their sale, to the extent permitted under the transferring 
State's laws and upon such terms as it deems appropriate.
    Article 18 states that assistance and procedures provided 
in the Treaty will not prevent the granting of assistance under 
any other applicable international agreements. The article also 
states that the Treaty shall not prevent the granting of 
assistance available under the national laws of either State, 
or pursuant to any bilateral arrangement, agreement, or 
practice that may be applicable.
    Article 19 provides that the Central Authorities of the two 
States must consult, at time mutually agreed upon, concerning 
the most effective means to implement the provisions of the 
Treaty.
    Article 20 provides that the Treaty is subject to 
ratification and shall enter into force upon exchange of 
instruments of ratification. The article also provides that the 
Treaty will apply to any request presented after its entry 
force, even if the relevant acts or omissions occurred prior to 
the date the Treaty entered into force. In addition, Article 20 
further provides that either State may terminate the Treaty by 
written notice to the other State, such termination to take 
effect six months following the date of notification.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegation, consisting of representatives from the Departments 
of Justice and State, and will be transmitted separately to the 
Senate Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
recommending approval of this Treaty by the Senate as soon as 
possible.
    Respectfully submitted,

                                                   Colin L. Powell.

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