TREATY WITH INDIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
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-
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, suchsafe 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
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.
Colin L. Powell.