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[Senate Treaty Document 107-12]
[From the U.S. Government Publishing Office]

107th Congress                                              Treaty Doc.
                                  SENATE                     
 2d Session                                                   107-12
_______________________________________________________________________

                                     

 
   TREATY WITH SWEDEN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
  KINGDOM OF SWEDEN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, 
  SIGNED AT STOCKHOLM ON DECEMBER 17, 2001

July 15, 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, July 15, 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 Kingdom of Sweden on Mutual Legal Assistance 
in Criminal Matters, signed at Stockholm on December 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 being negotiated by the United States in 
order to counter criminal activities more effectively. The 
Treaty should be an effective tool to assist in the prosecution 
of a wide variety of crimes, including terrorism, drug 
trafficking, and fraud and other white-collar offenses. The 
Treaty is self-executing.
    The Treaty provides for a broad range of cooperation in 
criminal matters. Mutual assistance available under the Treaty 
includes: locating or identifying persons or items; serving 
documents; taking the testimony or statements of persons; 
transferring persons in custody for testimony or other 
purposes; providing documents, records, and items; executing 
requests for searches and seizures; assisting in proceedings 
related to immobilization and forfeiture of assets and 
restitution; initiating criminal proceedings in the Requested 
State; and any other form of assistance consistent with the 
purposes of this Treaty and not prohibited by the laws of the 
State from whom the assistance is requested.
    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

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                                       Department of State,
                                         Washington, June 10, 2002.
The President,
The White House.
    Mr. 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 Kingdom of Sweden on Mutual Legal Assistance 
in Criminal Matters (``the Treaty''), signed at Stockholm on 
December 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. In recent years, similar bilateral treaties have 
entered into force between the United States and a number of 
other countries. This Treaty contains many provisions similar 
to those in the 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 terrorism and drug-trafficking offenses, of 
particular interest of the U.S. law enforcement community. It 
will also help expand the coverage of our law enforcement 
relationships across Europe. 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 locating or identifying persons or items; serving 
documents; taking the testimony or statements of persons; 
transferring persons in custody for testimony or other 
purposes; providing documents, records and items; executing 
requests for searches and seizures; assisting in proceedings 
related to immobilization and forfeiture of assets and 
restitution; initiating criminal proceedings in the Requested 
State; and any other form of assistance consistent with 
purposes of this Treaty and not prohibited by the laws of the 
Requested State. The scope of the Treaty includes not only 
assistance provided in connection with the investigation and 
prosecution of offenses, but also in proceedings related to the 
criminal matters, which may be civil or administrative in 
nature.
    Article 1(3) states that assistance shall be provided 
without regard to whether the conduct involved would constitute 
an offense under the laws of the Requested State. However, 
before executing a request that requires transfer of persons in 
custody pursuant to Article 12, search and seizure pursuant to 
Article 16, or assistance in forfeiture proceedings pursuant to 
Article 18, the Requested State may require that the subject 
offense by punishable under its pedal or administrative laws. 
Article 1(4) states explicitly that the Treaty does not create 
a right on the part of any private person to obtain, suppress 
or exclude any evidence, or to impede the execution of a 
request.
    Article 2 provides for the establishment of Central 
Authorities which, for the United States is the Attorney 
General or a person designated by a Attorney General and for 
Sweden is the Ministry of Justice. Article 2(3) provides that 
the Central Authority shall make requests on behalf of 
authorities that by law are responsible for investigations, 
prosecutions, or proceedings related to criminal matters and 
lists such authorities for each State. The Article also 
provides that the Central Authorities are to communicate 
directly with one another for purposes of the Treaty.
    Article 3 sets forth the circumstances under which a 
Requested State's Central Authority may deny assistance under 
the Treaty. A request may be denied if: (a) it relates to an 
offense under military law that would not be an offense under 
ordinary criminal law; (b) it relates to a political offense (a 
term the meaning of which is well-defined in the extradition 
context and expected to the defined on that basis in connection 
with mutual assistance); (c) it relates to an offense for which 
the penalty in the Requesting State is deprivation of liberty 
for a period of a year or less; (d) its execution would 
prejudice the security or other essential interests (``ordre 
public'') of the Requested State; or (e) it is not made in 
conformity with the Treaty.
    Before denying assistance under Article 3, the Central 
Authority of the Requested State is required to consult with 
its counterpart in the Requesting State to consider whether 
assistance can be given subject to such conditions as the 
Central Authority ofthe Requested State deems necessary. If the 
Requesting State accepts assistance subject to such conditions, it must 
comply with them. If the Central Authority of the Requested State 
denies assistance, it is required under Article 3(3) to inform the 
Central Authority of the Requesting State of the reasons for the 
denial.
    Article 4 prescribes the form and content of written 
requests under the Treaty, specifying in detail the information 
required in each request. A request for assistance must be in 
writing, except that a request may be accepted in another form 
in urgent situations but would require written confirmation 
within ten days unless the Central Authority of the Requested 
State agrees otherwise. The request must be in the language of 
the Requested State or accompanied by a translation into that 
language unless agreed otherwise.
    Article 5 concerns execution of requests. Article 5(1) 
requires the Central Authority of the Requested State to 
execute the request promptly or, when appropriate, to transmit 
it to the authority having jurisdiction to do so. It provides 
that the competent authorities of the Requested State must do 
everything in their power to execute a request, and that the 
courts 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 
and meet the costs of representation of the Requesting State in 
the Requested State in any proceedings arising out of an 
assistance request.
    Article 5(3) provides that requests are to be executed in 
accordance with the laws of the Requested State, except to the 
extent the Treaty provides otherwise. The method of execution 
specified in the request is to be followed except insofar as it 
is prohibited by the laws of the Requested State. Under Article 
5(4), if the Central Authority of the Requested State 
determines that execution of the request would interfere with 
an ongoing criminal investigation, prosecution, or proceeding 
in that State, it may postpone execution or, after consulting 
with the Central Authority of the Requesting State, make 
execution subject to conditions determined to be necessary. If 
the Requesting State accepts assistance subject to such 
conditions, it must comply with them.
    Article 5 additionally requires the Requested State's 
Central Authority to respond to reasonable inquiries concerning 
progress toward executing a request; to promptly inform the 
Requesting State's Central Authority of the outcome of its 
execution; and, if the request cannot successfully be executed, 
to inform the Requesting State's Central Authority of the 
reasons therefor.
    Article 6 apportions between the two States the costs 
incurred in executing a request. It provides that the Requested 
State must pay all costs relating to the execution of a 
request, except for the following items to be paid by the 
Requesting State: fees of experts; costs of translation, 
interpretation and transcription; and the allowances and 
expenses related to travel of persons either in the Requested 
State for the convenience of the Requesting State or pursuant 
to Articles 11, 12 or 13. If, during the execution of a 
request, it becomes apparent that complete execution will 
entrail expenses of an extraordinary nature, the Central 
Authorities must consult to determine the terms and conditions 
under which execution may continue.
    Under Article 7, the Requested State may make the execution 
of a request dependent on the condition that, without the prior 
consent of its Central Authority, the information or evidence 
obtained will not be used or transmitted by the authorities of 
the Requesting State for investigations or proceedings other 
than those specified in the request. Article 7(2) provides that 
nothing in the Article precludes the disclosure or use of 
information or evidence in a criminal proceeding to the extent 
that there is an obligation to do so under the constitution of 
the Requesting State. The Requesting State must notify the 
Requested State in advance of any such use or disclosure. 
Information or evidence that has been made public in the 
Requesting State in the normal course of the proceeding for 
which it was provided or has been disclosed in accordance with 
Article 7(2) may thereafter be used for any purpose.
    Article 8 requires the Requested State, if so requested by 
the Central Authority of the Requesting State, to use its best 
efforts to keep confidential arequest and its contents. The 
Central Authority of the Requested State must inform the Central 
Authority of the Requesting State if the request cannot be executed 
without breaching such confidentiality. This provides the Requesting 
State an opportunity to decide whether to pursue the request or to 
withdraw it in order to maintain confidentiality
    Further, under Article 8(2), if the Requested State's 
Central Authority requests that information or evidence 
furnished under this Treaty be kept confidential or be 
disclosed only subject to specified conditions, and the 
Requesting State accepts the information or evidence subject to 
such conditions, the Requesting State must use its best efforts 
to comply with them.
    Article 9 provides that a person in the Requested State 
from whom evidence is requested pursuant to the Treaty must be 
compelled, if necessary, to appear and be questioned or give 
testimony or produce items, including, but not limited to, 
documents, records, and articles of evidence. A person who 
gives false testimony, or makes a false certification during 
the execution of a request, is subject to prosecution and 
punishment in the Requested State in accordance with the 
criminal laws of that State. Upon request, the Central 
Authority of the Requested State is required to furnish 
information in advance about the date and place of the taking 
of testimony or evidence pursuant to this Article.
    Article 9(3) further requires the Requested State to permit 
the presence of persons designated in the request (such as the 
accused, counsel for the accused, or other interested persons) 
during execution of the request and to allow them to question 
or present questions to be posed to the person giving the 
testimony or evidence. Pursuant to Article 9(4), a person 
giving testimony or evidence may assert such claims of 
immunity, incapacity or privilege as are available under the 
laws of either State. If a person asserts such a claim under 
the laws of the Requesting State, the Requested State must rely 
on the representation of the Central Authority of the 
Requesting State as evidence of the existence of the immunity, 
incapacity, or privilege. Where the person's testimony or 
evidence has been taken in the Requested State, that person may 
reassert the claim for consideration by the judicial 
authorities in the Requesting State.
    Article 9(5) provides that the Requesting State may request 
that items produced in the Requested State pursuant to Article 
9 or Article 16, or that are the subject of testimony taken 
pursuant to Article 9, be authenticated by an attestation and 
also that the absence of such items be certified by an 
attestation. Where such items are business records, the 
attestation may be (a) by a certificate such as Form A or A-1 
appended to the Treaty; (b) by a written summary of testimony 
containing the essential information sought in Form A or A-1, 
or (c) by a document containing the essential information 
required by the Requesting State. Records so authenticated in 
Sweden, or documentation so attesting to the absence of such 
records, shall be admissible in evidence in the United States 
as proof of the truth of the matters set forth therein.
    Article 10 requires the Requested State to provide the 
Requesting State with copies of publicly available records in 
the possession of public authorities in the Requested State. 
The Requested State may also provide copies of any records, 
including documents or information in any form, in the 
possession of public authorities in that State, but not 
publicly available, to the same extent and under the same 
conditions as such copies would be available to its own public 
authorities. The Requested State has discretion to deny 
requests for such non-public documents entirely or in part.
    Article 10 also provides in paragraph 3 that the Requesting 
State may request that official records produced in the 
Requested State be authenticated in accordance with the 
provisions of the Convention Abolishing the Requirement of 
Legalization for Foreign Public Documents, dated 5 October 
1961, or by an official charged with maintaining them through 
the use of Form B appended to the Treaty. No further 
authentication is necessary. The Requesting State may request 
that the absence or nonexistence of such records be certified 
by an attestation through the use of Form B-1 appended to the 
Treaty. Records so authenticated in Sweden on Form B-1 are to 
be admissible in evidence in the United States as proof of the 
truth of the matters set forth therein.
    Article 11 provides a mechanism for the Requesting State to 
invite the voluntary appearance in its territory of a person 
located in the Requested State. The request must indicate the 
extent to which the invited person's expense will be 
reimbursed. If the Requested State invites a person in that 
State to appear before the appropriate authority in the 
Requesting State, the Requested State's Central Authority must 
promptly inform its counterpart in the Requesting State of the 
person's response. Under Article 11(2), the Requesting State 
may provide funds with respect to the invited person's expenses 
in advance through its embassy in the Requested State.
    Article 11(3) provides that an invited person who is not a 
suspect or defendant may not be prosecuted, detained, or 
subjected to any restriction of personal liberty in the 
Requesting State by reason of acts or convictions that preceded 
that person's departure from the Requested State. An invited 
person who is a suspect or defendant may not be prosecuted, 
detained, or subjected to any restriction of personal liberty 
in the Requesting State by reason of acts or convictions that 
preceded that person's departure from the Requested State that 
are not specified in the request. For the United States, safe 
conduct provided in this paragraph applies only to the extent 
authorized by its Central Authority and may also extend to the 
effects of service of process. Any safe conduct so authorized 
by the Central Authority of the United States shall be 
communicated to the Central Authority of Sweden. Under 11(4), 
any safe conduct provided in this Article ceases ten days after 
the person has been notified that the person's presence is no 
longer required or when the person, having left the Requesting 
State, voluntarily returns.
    Article 12 provides that a person in the custody of either 
State, whose presence for purposes of assistance under the 
Treaty is sought, is to be transferred from the custody of one 
State to that of the other provided that the person concerned 
consents. In addition, where the presence of a person in the 
custody of the Requested State is sought in the Requesting 
State for purposes of assistance under the Treaty (for example, 
a witness incarcerated in the Requested State may be 
transferred to the Requesting State to have his deposition 
taken in the presence of the defendant or to testify in a 
trial), the consent of the person and Requested State is 
required. Where a person in the custody of the Requesting State 
is sought in the Requested State for purposes of assistance 
under the Treaty (for example, a defendant in the Requesting 
State may be transferred in order to attend a witness 
deposition in the Requested State), the person and both States 
must agree.
    Article 12(3) further establishes both the express 
authority and the obligation of the receiving State to maintain 
the person transferred in custody unless otherwise authorized 
by the sending State. The receiving State must return the 
transferred person to the custody of the sending State as soon 
as circumstances permit unless otherwise agreed by both States, 
and the receiving State is not to require the sending State to 
initiate extradition or other proceedings for return of the 
person transferred. The person transferred also receives credit 
for service of the sentence imposed in the sending State for 
time served in the custody of the receiving State.
    A person transferred pursuant to Article 12 may not, while 
in the receiving State, be prosecuted, detained, or subjected 
to any restriction of personal liberty by reason of acts or 
convictions that preceded his departure from the sending State 
(other than as provided in Article 12(3)) or be required to 
testify in proceedings not specified in the request. The safe 
conduct provided in paragraph 4 ceases when a person released 
in accordance with paragraph 3 voluntarily remains in the 
receiving State more than 10 days after being notified that the 
person's presence is no longer required or when the person, 
having left the receiving State, voluntarily returns. Finally, 
under Article 12(6), a person appearing in a trial in the 
Requesting State under this Article may not be prosecuted in 
that State on the basis of such testimony except for contempt 
or perjury.
    Article 13 provides that the Requested State may authorize 
the transit through its territory of a person held in custody 
by a third State whose personal appearance has been requested 
by the Requesting State to give testimony or evidence or 
otherwise provide assistance in criminal proceedings or other 
proceedings related to criminal offenses. It further provides 
that the Requested State has the authorityand the obligation to 
keep the person in custody during transit.
    Article 14 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items specified in a request.
    Article 15 obligates the Requested State to use its best 
efforts to effect service of any document relating, in whole or 
in part, to any request for assistance under the Treaty. A 
request for the service of a document requiring a person to 
appear before an authority in the Requesting State must be 
transmitted in a reasonable time and, with respect to a 
defendant, no less than 30 days, before the scheduled 
appearance. Proof of service is to be provided in the manner 
specified in the request or acceptable under the provisions of 
the Hague Convention on the Service Abroad of Judicial and 
Extrajudicial Documents in Civil or Commercial Matters, done at 
The Hague, November 15, 1965.
    Article 16 obligates the Requested State to execute 
requests for search, seizure, and transfer of any item to the 
Requesting State if the request includes the information 
justifying such action under the laws of the Requested State. 
The Requesting State may request that every official who has 
custody of a seized item certify, through the use of Form C 
appended to the Treaty, the identity of the item, the 
continuity of the item's custody, and the integrity of its 
condition. No further authentication is required and items so 
certified in Sweden are to be admissible in evidence in the 
United States. Article 16(3) further provides that the Central 
Authority of the Requested State may require that the 
Requesting State agree to terms and conditions deemed necessary 
to protect third-party interests in the item to be transferred.
    Article 17 provides that the Central Authority of the 
Requested State may require its counterpart in the Requesting 
State to return any items transferred to it in execution of a 
request under this Treaty as soon as possible.
    Article 18(1) provides that, if the Central Authority of 
one State becomes aware of proceeds or instrumentalities of 
offenses that are located in the territory of the other State 
and may be forfeitable or otherwise subject to seizure under 
the laws of that State, it may so inform the Central authority 
of that other State. If that other State has jurisdiction, it 
may present this information to its authorities for a 
determination as to whether any action is appropriate. These 
authorities are to issue their decision in accordance with the 
laws of their country, and are required, through their Central 
Authority, to report to the other State on the action taken.
    Article 18 further obligates the States to assist each 
other to the extent permitted by their respective laws in 
proceedings and enforcement of judgments relating to the 
forfeiture of proceeds and instrumentalities of offenses and 
restitution to victims of crime. This may include identifying, 
tracing and provisionally freezing, seizing, or otherwise 
immobilizing proceeds or instrumentalities in support of such 
proceedings or enforcement of judgments. Upon request, the 
State that has instituted provisional measures is to secure, to 
the extent permitted by its laws, an order authorizing the 
transfer of the property concerned to the jurisdiction of the 
Requesting State. Proceeds and instrumentalities forfeited to a 
State pursuant to this Article are to be disposed of by that 
State according to its laws. Either State may transfer to the 
other State such property, the proceeds of its sale, or a 
portion thereof to the other Party, to the extent permitted by 
their respective laws, upon such terms as they deem 
appropriate.
    Article 19 authorizes either State to transmit, through the 
respective Central Authorities, a request for the purpose of 
initiating a criminal proceeding before the appropriate 
authorities of the other State where both States have 
jurisdiction to investigate or prosecute. The Requested State 
must consider initiating an investigation or prosecution to the 
extent appropriate under its laws, practices and procedures and 
notify the Requesting State of any action taken on the request.
    Article 20 provides that assistance and procedures provided 
in the Treaty do not prevent either State from granting 
assistance to the other State through the provisions of other 
applicable international agreements or through the provisions 
of its national laws. The States may also provideassistance 
pursuant to any bilateral arrangement, agreement or practice that may 
be applicable.
    Article 21 provides that the Central Authorities must 
consult, at times mutually agreed, to promote the most 
effective use of the Treaty and may agree on such practical 
measures as may be necessary to facilitate the Treaty's 
implementation.
    Article 22 provides that the Treaty is subject to 
ratification, and is to enter into force on the first day of 
the second month after the exchange of instruments of 
ratification, which are to be exchanged as soon as possible. It 
further provides that either State may terminate the Treaty by 
written notice to the other State, termination to take effect 
one year after the date upon which the other State received 
notice through the diplomatic channel.
    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 State and Justice and will be transmitted separately to the 
Senate Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate as soon as 
possible.
            Respectfully submitted,
                                                   Colin L. Powell.

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