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MUTUAL LEGAL ASSISTANCE TREATIES
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TREATY WITH THE ITALIAN REPUBLIC ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
TREATY DOC. 98-25
1982 U.S.T. LEXIS 225
November 9, 1982, Date-Signed
MESSAGE FROM THE PRESIDENT OF THE UNITED STATES
TRANSMITTING THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE ITALIAN REPUBLIC ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS, TOGETHER WITH A RELATED MEMORANDUM OF UNDERSTANDING SIGNED AT ROME ON NOVEMBER 9, 1982
TEXT:
98TH CONGRESS
2d Session
SENATE
LETTER OF TRANSMITTAL
THE WHITE HOUSE, June 11, 1984.
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 United States of America and the Italian Republic on Mutual Assistance in Criminal Matters, together with a related Memorandum of Understanding, signed at Rome on November 9, 1982.
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 assistance treaties being negotiated by the United States. This Treaty contains two major innovations: compulsory testimony in the [*2] requesting State in appropriate cases and the immobilization and forfeiture of assets. The former is of great importance in insuring complete trials in an age of rapidly increasing levels of international criminal activity. The latter is of great importance in depriving international criminals of the fruits of their crimes. The Treaty primarily utilizes existing statutory authority, but will require implementing legislation for the provision concerning forfeiture of assets.
The Treaty provides for a broad range of cooperation in criminal matters. Mutual assistance available under the Treaty includes: (1) executing requests relating to criminal matters; (2) taking of testimony or statements of persons; (3) effecting the production and preservation of documents, records, or articles of evidence; (4) serving judicial documents; (5) requiring the appearance of a witness before a court of the requesting Party; (6) locating persons; and (7) providing judicial records, evidence, and information.
I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.
RONALD REAGAN.
LETTER OF SUBMITTAL
DEPARTMENT OF STATE,
Washington, [*3] June 1, 1984.
THE PRESIDENT,
The White House.
THE PRESIDENT: I have the honor to submit to you the Treaty between the United States of America and the Italian Republic on Mutual Assistance in Criminal Matters, together with a related Memorandum of Understanding, signed at Rome on November 9, 1982. I recommend that the Treaty and the Memorandum of Understanding be transmitted to the Senate for its advice and consent to ratification.
The Treaty contains two major innovations: compulsory testimony in the requesting State (Article 15) and immobilization and forfeiture of assets (Article 18). The Treaty relies primarily on the existing authority of the federal courts, particularly 28 U.S.C. § 1782. Where existing authority is absent or insufficient, this Treaty establishes the necessary authority. The provision concerning forfeiture of assets will require implementing legislation which I understand the Department of Justice intends to propose.
Article 1 provides for mutual assistance between law enforcement agencies of the Contracting States relating to criminal proceedings or investigations. Article 1 also sets forth a non-exclusive list of [*4] the types of assistance available under the Treaty including, for example, taking testimony, serving documents, and executing requests for searches and seizures or depositions in accordance with the laws of the requested State. Article 1 further states that assistance shall be rendered whether or not the acts under investigation are offenses in the requested State or the requested State would have jurisdiction in similar cirumstances.
Article 2 requires that all requests for assistance be made and executed through the "Central Authority" of each Contracting State. For the United States, the Central Authority is the Attorney General. For the Republic of Italy, the Central Authority is the Minister of Grace and Justice.
Article 3 sets out the necessary and suggested information to be included in a request for assistance. These requirements are similar to those found in other recent mutual legal assistance treaties (such as those with The Netherlands and Turkey).
Article 4 provides for the execution of requests for assistance. Requests shall be executed in accordance with provisions of the Treaty and the laws of the requested State. The agency or authority selected by the Central Authority [*5] to execute the request is authorized and required to take whatever action is necessary and within its power to execute such requests. The courts of the requested State shall issue the necessary process in the execution of a request. Desired procedures specified in the request for assistance are to be followed unless specifically prohibited by the laws of the requested State.
Article 5 specifies instances in which assistance may be denied or postponed under the Treaty. Mutual assistance may be refused if (1) assistance would prejudice the security or other essential public interests of the requested state, (2) the request relates to a military or political offense, or (3) the request does not comply with the requirements of the Treaty. Assistance may be postponed in instances where it would interfere with an ongoing investigation or proceeding in the requested State.
Article 6 provides for the return to the requesting State of the completed request. To the extent possible, documents and records provided shall be complete and in unedited form.
Article 7 provides for the payment of the costs of assistance. The requested State shall render assistance without cost, except for a) translation [*6] of documents, b) private expert fees, c) witness travel fees to the requesting State, and d) expenses related to the transfer of witnesses in custody.
Article 8 provides for the confidentiality of evidence. The requested State may require that evidence and other information be kept confidential, except when disclosure is necessary in a public proceeding. Article 8 also provides that evidence sought under the Treaty will not be used for any purposes other than those stated in the request without the consent of the requested State.
Article 9 states that the requesting State shall return, upon request, documents, records or evidence furnished in execution of a request as soon as possible.
Article 10 states that the requested State shall make thorough efforts to locate within its territory persons specified in a request for assistance.
Article 11 provides for the service in the requested State of legal documents transmitted for this purpose by the requesting State.
Article 12 provides that the requested State shall furnish copies of publicly available documents or records of a government agency. Article 12 further provides that any nonpublic government document or record may be provided [*7] to the same extent and under the same conditions as it would be made available to the law enforcement or judicial authorities of the requested State. Finally, Article 12 provides that these documents or records, if certified authentic by the Central Authority of the requested State, shall not require further certification or authentication to be admissible into evidence.
Article 13 provides for compulsory production of documents and articles to the same extent as would be required for criminal actions in the requested State. Article 13 further provides for search and seizure if the request contains information which would justify such action in criminal investigations or proceedings under the laws of the requested State.
Article 14 provides for the taking of testimony in the requested State. It states that a person shall be compelled to appear and testify to the same extent as would be required in a criminal investigation or proceeding in the requested State. Article 14 further states that the requested State shall permit the presence of the accused, counsel for the accused and persons charged with the enforcement of the criminal laws to which the request relates.
Article 14 also [*8] provides for questioning of the witness by those present, in accordance with the laws of the requested State, thereby permitting cross-examination of the witness. Testimonial privileges under the laws of the requesting State are not applicable in the execution of such a request, but are preserved for decision by the courts of the requesting State.
Article 15 provides for the taking of testimony in the requesting State. It states that the requested State shall compel a person to appear and testify in the requesting State provided that a) there is no reasonable basis to deny the request, b) a person could be compelled to appear and testify in similar circumstances in the requested State, and c) the requesting State certifies the testimony is material and relevant. Article 15 further provides that a person who fails to appear as directed shall be subject to sanctions under the laws of the requested State, such sanctions not to include removal of the person to the requesting State.
Article 16 provides for the transfer of persons in custody for testimonial purposes in cases where the requesting State needs such a person as a witness and in cases where a defendant seeks to be present for [*9] purposes of confrontation at a judicial proceeding in the other State. A person in custody needed as a witness in the requested State shall be transported to that State subject to the conditions set forth in Article 15. A person in custody who seeks for purposes of confrontation to be present in another State shall be transported to that State unless the State of custody has a reasonable basis for denying the request.
Article 17 provides for the safe conduct of a person appearing as a witness before an authority in the requesting State. It states that such a person a) shall not be subject to suit, detention or any other restriction of personal liberty with respect to any act or conviction which preceded departure from the requested States, and b) shall not be prosecuted based on truthful testimony provided pursuant to the request. Safe conduct ceases, however, if ten days after notification that his presence is not longer required and he is free to leave, the person has not left the requesting State, or having left, has returned.
Article 18 provides for the immobilization and forfeiture of assets. It states that, in emergency situations, the requested State shall have authority to [*10] immobilize assets found in that State and, after appropriate judicial proceedings, to order the forfeiture of those assets to the requesting State. Such forfeiture authority will be of great importance in depriving international drug traffickers and members of organized crime of the fruits of their crime. As noted above, this provision requires implementing legislation which the Department of Justice intends to propose.
Article 19 provides that assistance and procedures provided by this Treaty shall not preclude assistance available under any other applicable international agreements or under the domestic law of the Contracting States.
Article 20 provides that the Treaty shall enter into force upon the exchange of instruments of ratification.
Article 21 states that either State may terminate the Treaty upon six months written notice to the other.
The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate at an early date.
Respectfully submitted.
TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE ITALIAN REPUBLIC ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
The Government of the United States of America and the Government of Italian Republic, [*11] desiring to conclude a Treaty on mutual assistance in criminal matters, have agreed as follows:
ARTICLE 1
Obligation to Render Assistance
1. The Contracting Parties undertake to afford each other, upon request and in accordance with the provisions of this Treaty, mutual assistance in criminal investigations and proceedings.
2. Such assistance shall include:
a. locating persons;
b. serving documents;
c. producing documents and records;
d. executing requests for search and seizure;
e. taking testimony;
f. transferring persons for testimonial purposes; and
g. immobilizing and forfeiting assets.
' Other types of assistance shall also be granted to the extent such assistance is not inconsistent with the laws of the Requested State.
3. Assistance shall be rendered even when the acts under investigation are not offenses in the Requested State and without regard to whether the Requested State would have jurisdiction in similar circumstances.
4. This Treaty is intended solely for mutual assistance in criminal matters between authorities of the Contracting Parties.
ARTICLE 2
Central Authority
1. A request under this Treaty shall be made by a Central Authority for each Contracting [*12] Party. The Central Authorities shall communicate directly with each other to implement the provisions of this Treaty.
2. For the United States the Central Authority shall be the Attorney General. For the Republic of Italy the Central Authority shall be the Minister of Grace and Justice.
ARTICLE 3
Contents of a Request
1. A request for assistance shall indicate:
a. the name of the authority conducting the criminal investigation or proceeding to which the request relates;
b. the subject matter and nature of the investigation or proceeding;
c. a description of the evidence or information sought or the acts to be performed; and
d. the purpose for which the evidence, information or action is sought.
2. To the extent necessary and possible, a request shall include:
a. available information on the identity and whereabouts of a person to be located;
b. the identity and location of a person to be served, that person's relationship to the proceeding, and the manner in which service is to be made;
c. the identity and location of a person from whom evidence is sought;
d. a precise description of the place to be searched and the objects to be seized;
e. a description of the manner in [*13] which any testimony is to be taken and recorded;
f. a list of questions to be answered; and
g. a description of any particular procedure to be followed in executing the request.
3. A request shall indicate the allowances and expenses to which a person appearing in the Requesting State will be entitled.
4. A request and accompanying documents shall be in both English and Italian.
ARTICLE 4
Execution of a Request
1. The Central Authority of the Requested State shall promptly comply with a request or, when appropriate, transmit it to the authority having jurisdiction to do so. The competent officials of the Requested State shall do everything in their power to execute a request. The courts of the Requested State shall issue subpoenas, search warrants, or any other process necessary in the execution of a request.
2. A request shall be executed in conformity with the provisions of this Treaty and according to the laws of the Requested State. Procedures specified in the request shall be followed unless prohibited by the laws of the Requested State.
ARTICLE 5
Limitations on Compliance
1. The Requested State may deny assistance to the extent that:
a. execution of a request would [*14] prejudice the security or other essential public interests of the Requested State;
b. a request relates to a purely military offense or a matter considered a political offense by the Requested State; or
c. a request does not comply with the provisions of this Treaty.
2. Before refusing to execute a request, the Requested State shall determine whether assistance can be given subject to such conditions as it deems necessary.
3. The Requested State may postpone execution of a request or grant it subject to conditions if execution would interfere with an ongoing investigation or proceeding in the Requested State.
4. The Requested State shall immediately inform the Requesting State of the reason for partial or total denial or postponement of assistance.
ARTICLE 6
Return of a Completed Request
1. Upon completion of a request the Requested State shall, unless otherwise agreed, return to the Requesting State the original request together with all information and evidence obtained, indicating place and time of execution.
2. To the extent possible, all documents and records to be furnished pursuant to a request shall be complete and in unedited form. Upon application of the Requesting [*15] State, the Requested State shall make every effort to furnish original documents and records.
ARTICLE 7
Costs and Translations
The Requested State shall render assistance without cost to the Requesting State except for:
a. expenses incurred in the translation of documents accompanying a request or which result from a request;
b. fees of private experts specified in a request;
c. all expenses related to travel of witnesses pursuant to Article 15; and
d. all expenses related to the transfer of witnesses in custody pursuant to Article 16.
ARTICLE 8
Protecting Confidentiality and Restricting Use of Evidence and Information
1. When necessary, the Requested State may require that evidence and information provided, and information derived therefrom, be kept confidential in accordance with stated conditions. Nevertheless, disclosure may be made where necessary as evidence in a public proceeding.
2. If deemed necessary, the Requesting State may request that the application for assistance, the contents of the request and its supporting documents, and the granting of such assistance be kept confidential.
3. The Requesting State shall not use evidence obtained, nor information derived [*16] therefrom, for purposes other than those stated in a request without the prior consent of the Requested State.
ARTICLE 9
Return of Documents, Records, and Articles of Evidence
The Requesting State shall return upon request any documents, records, or articles of evidence furnished in execution of a request as soon as possible.
ARTICLE 10
Locating Persons
The Requested State, consistent with the provisions of this Treaty, shall make thorough efforts to ascertain the location of persons specified in the request and believed to be in the Requested State.
ARTICLE 11
Serving Documents
1. The Requested State shall cause service of any document transmitted for that purpose by the Requesting State.
2. A request for service of a document requiring the appearance of a person before an authority in the Requesting State shall be transmitted a reasonable time before the scheduled appearance.
3. A document requiring such an appearance shall be served thirty days prior to the scheduled appearance or as otherwise agreed.
4. The Requested State shall return a proof of service executed according to its laws.
ARTICLE 12
Providing Documents and Records of Government Offices or Agencies [*17]
1. The Requested State shall provide a copy of a publicly available document or record of a government office or agency.
2. The Requested State may provide any document or record in the possession of a government office or agency, but not publicly avaiable, to the same extent and under the same conditions as it would be available to its own law enforcement or judicial authorities. The Requested State in its discretion may deny the request entirely or in part.
3. Any document or record provided pursuant to this Article in accordance with procedures specified in the request and certified authentic by the Central Authority of the Requested State shall require no further certification or authentication to be admissible into evidence in the Requesting State.
ARTICLE 13
Producing Other Documents and Records
1. The Requested State, if necessary, shall compel a person to produce a document, record or article to the same extent as would be required for criminal investigations or proceedings in that State. When search and seizure is required, the request shall contain such information as would justify such action in criminal investigations or proceedings under the laws of the Requested [*18] State.
2. With respect to paragraph 1 of this Article, every official of the Requested State who has custody of a seized document, record or article shall certify to the Central Authority of that State the identity of the thing seized, the continuity of the custody thereof, and the integrity of its condition. The Central Authority of the Requested State shall certify that the procedures specified in the request have been followed to the extent possible pursuant to the laws and practices of that State. A document, record or article so certified shall require no further foundation to be admissible into evidence in the Requesting State.
ARTICLE 14
Taking Testimony in the Requested State
1. A person from whom evidence is sought shall, if necessary, be compelled to appear and testify to the same extent as would be required in criminal investigations or proceedings in the Requested State.
2. Upon request, the Requested State shall specify the date and place of the taking of testimony.
3. The Requested State shall permit the presence of an accused, counsel for the accused, and persons charged with the enforcement of the criminal laws to which the request relates.
4. The executing authority [*19] shall provide persons permitted to be present the opportunity to question the person whose testimony is sought in accordance with the laws of the Requested State.
5. The executing authority shall provide persons permitted to be present the opportunity to propose additional questions and other investigative measures.
6. Testimonial privileges under the laws of the Requesting State shall not apply in the execution of a request, but such questions of privilege shall be preserved for the Requesting State.
ARTICLE 15
Taking Testimony in the Requesting State
1. The Requested State, upon request that a person in that State appear and testify in connection with a criminal investigation or proceeding in the Requesting State, shall compel that person to appear and testify in the Requesting State by means of the procedures for compelling the appearance and testimony of witnesses in the Requested State if:
a. the Requested State has no reasonable basis to deny the request;
b. the person could be compelled to appear and testify in similar circumstances in the Requested State; and
c. the Central Authority of the Requesting State certifies that the person's testimony is relevant and material. [*20]
2. A person who fails to appear as directed shall be subject to sanctions under the laws of the Requested State as if that person had failed to appear in similar circumstances in that State. Such sanctions shall not include removal of the person to the Requesting State.
ARTICLE 16
Transferring Persons in Custody for Testimonial Purposes
1. A person in custody needed as a witness in the Requesting State for criminal investigations or proceedings shall be transported to that State pursuant to conditions proposed by Article 15(1).
2. A defendant in custody in one State who seeks for purposes of confrontation to be present at a judicial proceeding in the other State shall be transported to that State unless the State in which the defendant is in custody has a reasonable basis to deny the request.
3. For purposes of this Article:
a. the receiving State shall have the authority and obligation to keep in custody a person transferred unless otherwise authorized by the sending State;
b. the receiving State shall return the person transferred to the custody of the sending State as soon as circumstances permit or as otherwise agreed;
c. the receiving State shall not decline to return a [*21] person transferred on the basis of nationality nor require the sending State to initiate extradition proceedings; and
d. the person transferred shall receive credit for service of the sentence imposed in the sending State while in the custody of the receiving State.
ARTICLE 17
Safe Conduct
1. A person appearing before an authority in the Requesting State pursuant to a request:
a. shall not be subject to suit, or be detained or subjected to any other restriction of personal liberty, with respect to any act or conviction which preceded departure; and
b. shall not be subject to prosecution based on testimony provided pursuant to the request to the extent that such testimony is required to honor the request and is true.
2. Safe conduct provided in this Article shall cease if, ten days after the person appearing has been notified that his or her presence is no longer required, that person, being free to leave, has not left the Requesting State or, having left, has returned.
ARTICLE 18
Immobilization and Forfeiture of Assets
1. In emergency situations, the Requested State shall have authority to immobilize assets found in that State which are subject to forfeiture.
2. Following [*22] such judicial proceedings as would be required under the laws of the Requested State, that State shall have the authority to order the forfeiture to the Requesting State of assets immobilized pursuant to paragraph 1 of this Article.
ARTICLE 19
Other Treaties and Domestic Laws
1. Assistance and procedures provided by this Treaty shall not prevent or restrict any assistance or procedure available under other international conventions or arrangements or under the laws of the Contracting Parties.
2. The activities of the International Criminal Police Organization (INTERPOL) are not affected by this Treaty.
ARTICLE 20
Ratification and Entry into Force
1. This Treaty shall be subject to ratification and the instruments of ratification shall be exchanged, as soon as possible, in Washington.
2. This Treaty shall enter into force upon the exchange of instruments of ratification.
ARTICLE 21
Denunciation
Either Contracting Party may terminate this Treaty at any time by giving notice to the other Party and the termination shall be effective six months after the date of receipt of such notice.
IN WITNESS WHEREOF the undersigned, being duly authorized by their respective Governments, [*23] have signed this Treaty and have affixed hereunto their seals.
Done in Rome in duplicate, in the English and Italian languages, both equally authentic, this 9th day of November 1982.
For the United States of America
For the Italian Republic
MEMORANDUM OF UNDERSTANDING
Regarding the Treaty on Mutual Assistance in Criminal Matters and its implementation, the delegations of both parties wish to draw special attention to certain provisions of the Treaty.
ARTICLE 1
For the purpose of defining the scope of the various provisions of the Treaty on Mutual Assistance in Criminal Matters, Article 1 refers to "criminal investigations and proceedings".
The Contracting Parties mutually recognize that this phrase refers to the various stages of a criminal action. A "criminal action" lies within the responsibility not only of courts, but also of any other authority which institutionally has, under the laws of its State, power to initiate or proceed in prosecutions for the punishment of criminal offenses.
ARTICLE 4
During the negotiations between the United States and Italy, the delegations discussed requirements for admissibility into evidence under each country's legal system. With respect to the [*24] United States, certain "formalities" exist as conditions precedent to admission. First, a document, record or article sought to be introduced into evidence must be "authenticated". Thereafter, the requisite "foundation" must be furnished. When both authenticity and foundation are established, the trial judge may admit the document, record, or article into evidence. These preadmission, authentication and foundation requirements are not altered by this Treaty. Therefore, the treaty partner should anticipate, especially with respect to documents and records requested pursuant to Articles 12 and 13, that procedures will be specified in the request to comply with internal requirements. Where evidence is secured pursuant to and in accordance with a Treaty request, the trial judge is permitted to find that such evidence is trustworthy in determining whether the requisite "authenticity" and "foundation" have been established.
ROME, November 9, 1982.
The Head of the Delegation of the United States of America
The Head of the Delegation of the Italian Republic
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