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12928 Czech Republic - Treaty on Mutual Legal Assistance in Criminal Matters


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12928

 

 

MUTUAL LEGAL ASSISTANCE

 

 

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and the CZECH REPUBLIC

 

Signed at Washington February 4, 1998

 

 

 

 


 

 


NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”


 

 

 

 


CZECH REPUBLIC

Mutual Legal Assistance

Treaty signed at Washington February 4, 1998;
Transmitted by the President of the United States of America
to the Senate April 14, 1998 (Treaty Doc. 105-47,
105th Congress, 2d Session);
Reported favorably by the Senate Committee on Foreign Relations
October 14, 1998 (Senate Executive Report No. 105-22,
105th Congress, 2d Session);
Advice and consent to ratification by the Senate
October 21, 1998;
Ratified by the President January 20, 1999;
Ratified by the Czech Republic December 22, 1999;
Ratifications exchanged at Prague March 6, 2000;
Entered into force May 7, 2000.

TREATY
BETWEEN
THE UNITED STATES OF AMERICA
AND
THE CZECH REPUBLIC
ON
MUTUAL LEGAL ASSISTANCE
IN CRIMINAL MATTERS
TABLE OF CONTENTS
Article 1 Scope of Assistance
Article 2 Central Authorities
Article 3 Denial of Assistance
Article 4 Form, Content, and Language of Requests
Article 5 Execution of Requests
Article 6 Costs
Article 7 Limitation on Use
Article 8 Alteration of Conditions
Article 9 Evidence in the Requested State
Article 10 Official Records
Article 11 Appearance Outside the Requested State
Article 12 Temporary Transfer of Persons in Custody
Article 13 Transit of Persons in Custody
Article 14 Location or Identification of Persons or Items
Article 15 Service of Documents
Article 16 Search and Seizure
Article 17 Return of Items
Article 18 Forfeiture
Article 19 Restitution
Article 20 Criminal Fines
Article 21 Compatibility with Other Treaties
Article 22 Consultation
Article 23 Ratification, Entry Into Force, and Termination
The United States of America and the Czech Republic,
Desiring to provide more effective cooperation between the two States through
mutual legal assistance in criminal matters,
Have agreed as follows:
Article 1
Scope of Assistance
1. The Contracting States shall provide mutual assistance, in accordance
with the provisions of this Treaty, for criminal proceedings, including investigations to
verify the commission of offenses, to gather evidence of offenses, and to prosecute
offenses, the punishment of which, at the time of the request for assistance, would fall
within the jurisdiction of the judicial authorities of the Requesting State. The
Contracting States shall also provide such assistance for forfeiture and other
proceedings related to criminal offenses.
2. Assistance shall include:
(a) locating or identifying persons or items;
(b) serving documents;
(c) taking the testimony or statements of persons;
(d) transferring persons in custody for testimony or other purposes;
(e) providing documents, records, and articles of evidence;
(f) executing requests for searches and seizures;
(g) immobilizing assets;
(h) assisting in proceedings related to forfeiture of assets, restitution,
and criminal fines; and
(i) providing any other assistance consistent with the laws of the
Requested State.
3. The Requested State shall provide assistance without regard to whether
the conduct that is the subject of the request would constitute an offense under the laws
of the Requested State, except that the Requested State may refuse to comply in whole or
in part with a request for assistance to the extent that the conduct would not constitute
an offense under its laws and the execution of the request would require a court order.
However, the Requested State shall make every effort to approve a request for assistance
requiring such a court order and shall grant assistance where the facts stated in the
request establish a reasonable suspicion that the conduct described, if it had occurred in
the Requested State, would constitute an offense under its laws.
4. This Treaty is intended solely for mutual legal assistance between the
Contracting States. The provisions of this Treaty shall not give rise to 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
Central Authorities
1. The Contracting States shall seek and obtain assistance through their
Central Authorities. The Central Authority for the United States shall be the Attorney
General or such persons in the Department of Justice as the Attorney General
designates. The Central Authority for the Czech Republic shall be the Office of the
Prosecutor General and the Ministry of Justice.
2. The Central Authority for the United States will make requests on behalf
of prosecutors, investigators with criminal law enforcement jurisdiction, and agencies
and entities with specific statutory or regulatory authority to refer matters for criminal
prosecution. The Central Authority for the Czech Republic will make requests on
behalf of prosecutors and courts.
3. The Central Authority for the Requesting State shall use its best efforts to
ensure that a request is not made where, in its view:
(a) the offense on which the request would be based does not have
serious consequences; or
(b) the extent of the assistance to be requested would be unreasonable
in view of the sentence expected upon conviction.
4. The Central Authorities shall communicate with one another directly for
the purposes of this Treaty.
Article 3
Denial of Assistance
1. The Central Authority of the Requested State may deny assistance if:
(a) the request relates to an offense under military law that would not
be an offense under ordinary criminal law applicable generally;
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(b) the request relates to a political offense;
(c) the execution of the request is likely to prejudice the sovereignty,
security, order public, or similar essential interests of the
Requested State; or
(d) the request does not conform to the requirements of the Treaty.
2. Before denying assistance pursuant to this Article, the Central Authority
of the Requested State shall consult with the Central Authority of the Requesting State
to consider whether assistance can be given subject to such conditions as it deems
necessary. If the Requesting State accepts assistance subject to these conditions, it shall
comply with the conditions.
3. If the Central Authority of the Requested State denies assistance, it shall
inform the Central Authority of the Requesting State of the reasons for the denial.
Article 4
Form, Content, and Language of Requests
1. A request for assistance shall be in writing except that the Central
Authority of the Requested State may accept a request in another form in urgent
situations. In any such situation, the request shall be confirmed in writing within ten
days unless the Central Authority of the Requested State agrees otherwise. The request,
including any attachments, shall be in the language of the Requested State unless agreed
otherwise. The Requested State shall have no obligation to translate the response,
including any attachments.
2. The request shall include the following:
(a) the identity of the authority initiating the request;
(b) a description of the factual basis of each offense, the text of the
applicable provisions of law containing the elements constituting
each offense, and the nature and stage of the proceeding;
(c) a description of the evidence, information, or other assistance
sought; and
(d) a statement of the purpose for which the evidence, information, or
other assistance is sought.
3. To the extent necessary and possible, a request shall also include:
(a) information on the identity and location of any person from whom
evidence is sought;
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(b) information on 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) information on the identity and suspected location of a person or
item to be located;
(d) a precise description of the place or person to be searched and of
the item to be seized;
(e) a description of any particular procedure to be followed in
executing the request;
(f) a description of the manner in which any testimony or statement is
to be taken and recorded;
(g) a description of the testimony or statement sought, which may
include a list of questions to be asked of a person;
(h) information as to the allowances and expenses to which a person
asked to appear in the Requesting State will be entitled; and
(i) any other information that may be brought to the attention of the
Requested State to facilitate its execution of the request.
Article 5
Execution of Requests
1. The Central Authority of the Requested State shall promptly execute a
request or, when appropriate, transmit it to the authority having jurisdiction to do so.
The competent authorities of the Requested State, including courts, shall have the
authority to issue such orders to execute a request under this Treaty as are authorized
under the laws of the Requested State with respect to domestic proceedings and shall do
everything in their power to execute the request.
2. When necessary, the request shall be presented to the appropriate
authority by the persons appointed by the Central Authority of the Requested State.
3. A request shall be executed in accordance with the laws of the Requested
State except to the extent that this Treaty provides otherwise. If the Requesting State
requests execution in accordance with the procedures of the Requesting State and
provides legal reference thereto, the Requested State shall so execute unless such
execution would violate the laws of the Requested State.
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4. If the Central Authority of the Requested State determines that execution
of a request would interfere with an ongoing criminal proceeding in that State, it may
postpone execution, or make execution subject to conditions determined to be necessary
after consultations with the Central Authority of the Requesting State. If the Requesting
State accepts the assistance subject to the conditions, it shall comply with the conditions.
5. The Requested State shall use its best efforts to keep confidential a request
and its contents if such confidentiality is requested by the Central Authority of the
Requesting State. If the request cannot be executed without breaching the requested
confidentiality, the Central Authority of the Requested State shall so inform the Central
Authority of the Requesting State, which shall then determine whether the request
should nevertheless be executed.
6. The Central Authority of the Requested State shall respond to reasonable
requests by the Central Authority of the Requesting State on progress toward execution
of the request.
7. The Central Authority of the Requested State shall promptly inform the
Central Authority of the Requesting State of the outcome of the execution of the request.
If execution of the request is delayed or postponed, the Central Authority of the
Requested State shall inform the Central Authority of the Requesting State of the
reasons for the delay or postponement.
Article 6
Costs
1. The Requested State shall pay all costs relating to the execution of a
request except for the following:
(a) the fees of experts;
(b) the costs of interpretation, translation and transcription; and
(c) the allowances and expenses related to travel of persons travelling
outside the local judicial district in the Requested State for the
convenience of the Requesting State or pursuant to Articles 11, 12,
and 13.
2. If during the execution of a request it becomes apparent that complete
execution will entail expenses of an extraordinary nature, the Central Authorities shall
consult to determine the terms and conditions under which execution may continue.
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Article 7
Limitation on Use
The Central Authority of the Requested State may require that the Requesting
State not use any information or evidence obtained under this Treaty other than in the
proceeding described in the request without the prior consent of the Central Authority
of the Requested State. In such situations, the Requesting State shall comply with the
requirement.
Article 8
Alteration of Conditions
1. To the extent that the Constitution of the Requesting State imposes an
obligation to disclose information provided under this Treaty and such disclosure would
conflict with a condition imposed by the Requested State, the Central Authority of the
Requesting State shall consult with the Central Authority of the Requested State to
consider whether the condition may be modified to permit such disclosure. The Central
Authority of the Requested State shall use its best efforts to permit such modification;
with respect to a condition imposed pursuant to Article 7, it shall permit such disclosure
unless prohibited by its law.
2. Information or evidence that has been used appropriately in the
proceeding for which it was provided and in the course of such use has been made public
may be used for any purpose.
Article 9
Evidence in the Requested State
1. A person in the Requested State from whom evidence is requested
pursuant to this Treaty shall be compelled, if necessary, to appear and either testify or
provide a statement, or produce items, including documents, records, and articles of
evidence. A person other than an accused who gives false testimony, either orally or in
writing, in execution of a request shall be subject to prosecution in the Requested State
in accordance with the criminal laws of that State.
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2. Upon request, the Central Authority of the Requested State shall furnish
information in advance about the date and place of the taking of the testimony or
statement or the production of evidence pursuant to this Article.
3. The Requested State shall allow the presence of such persons as specified
in the request during the execution of the request and shall allow such persons to specify
questions to be posed to the person giving the testimony or statement or producing the
evidence.
4. If the person referred to in paragraph 1 asserts a claim of immunity,
incapacity, or privilege under the laws of the Requesting State, the testimony, statement,
or other evidence shall nonetheless be taken and provided, together with the claim, to
the Central Authority of the Requesting State for resolution of the claim by the
competent authorities of that State.
5. Evidence produced in the Requested State pursuant to this Article or that
is the subject of testimony or a statement taken under this Article shall, upon request, be
authenticated by an attestation, including, in the case of business records, authentication
in the manner indicated in Form A appended to this Treaty. The absence or
nonexistence of such records shall, upon request, be certified through the use of Form B
appended to this Treaty. Records authenticated by Form A, or Form B certifying the
absence of such records, shall be admissible in evidence in the Requesting State as proof
of the truth of the matters set forth therein.
Article 10
Official Records
1. The Requested State shall provide the Requesting State with copies of
publicly available records in the possession of a government department or agency or a
court in the Requested State. Publicly available records are documents, records, or
information in any form that are available to members of the public of the Requested
State generally or upon compliance with a legal condition.
2. The Requested State may provide copies of any records, including
documents or information in any form, that are in the possession of a government
department or agency or a court in that State, but that are not publicly available
records, to the same extent and under the same conditions as such copies would be
available to its own law enforcement or judicial authorities. The Requested State may in
its discretion deny a request pursuant to this paragraph entirely or in part.
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3. Records of a government department or agency or a court produced
pursuant to this Article shall, upon request, be authenticated by an official responsible
for maintaining them through the use of Form C appended to this Treaty. The absence
or nonexistence of such records shall, upon request, be certified through the use of
Form D appended to this Treaty. Records authenticated by Form C, or Form D
certifying the absence of such records, shall be admissible in evidence in the Requesting
State as proof of the truth of the matters set forth therein.
Article 11
Appearance Outside The Requested State
1. The Requesting State may request the appearance in the Requesting State
or in a third State of any person to assist in criminal proceedings or other proceedings
related to criminal offenses. The Requested State shall invite the person to appear and
shall inform the Requesting State of the person's response.
2. The Requesting State shall indicate the extent to which the expenses will
be paid. A person who agrees to appear may ask that the Requesting State advance
money to cover these expenses. This advance may be provided through the Embassy or
a consulate of the Requesting State.
3. An invited person 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. The Central Authority
of the Requesting State shall have discretion to extend safe conduct to the effects of non-
criminal proceedings or to limit the application of safe conduct. Any such extension or
limitation of safe conduct shall be communicated to the invited person prior to that
person's travel to the Requesting State.
4. The safe conduct provided in the above paragraph shall cease seven 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
Temporary Transfer Of Persons in Custody
1. A person in the custody of the Requested State whose presence in the
Requesting State or in a third State is sought for purposes of assistance under this
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Treaty shall be transferred temporarily from the Requested State to the Requesting
State or to a third State for that purpose if the person consents and if the Central
Authorities of the Requesting and the Requested States agree.
2. A person in the custody of the Requesting State whose presence in the
Requested State is sought for purposes of assistance under this Treaty may be
transferred from the Requesting State to the Requested State if the person consents and
if the Central Authorities of both States agree.
3. For purposes of this Article:
(a) the receiving State shall have the authority and the obligation to
keep the person transferred in custody unless otherwise agreed by
the Central Authorities of both States;
(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 by the Central Authorities of both States;
(c) the receiving State shall not require the sending State to initiate
extradition proceedings or any other proceedings for the return of
the person transferred;
(d) time served in the custody of the receiving State by the person
transferred shall be credited toward the service of the sentence
imposed in the sending State; and
(e) where the receiving State is a third State, the Requesting State shall
make all arrangements necessary to meet the requirements of this
paragraph.
4. Safe conduct shall be provided in accordance with Article 11, paragraphs
3 and 4, except that the person shall be kept in custody for the offense for which the
person is incarcerated in the sending State.
Article 13
Transit of Persons in Custody
1. 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.
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2. The Requested State shall have the authority and the obligation to keep
the person in custody during transit.
3. Each Contracting State may refuse to grant transit of its nationals.
Article 14
Location or Identification of Persons or Items
If the Requesting State seeks the location or identity of persons or items in the
Requested State, the Requested State shall use its best efforts to ascertain the location or
identity.
Article 15
Service of Documents
1. The Requested State shall use its best efforts to effect service of any
document relating, in whole or in part, to any request for assistance made by the
Requesting State under the provisions of this Treaty.
2. The Central Authority of the Requesting State shall transmit any request
for the service of a document requiring the appearance of a person before an authority
in the Requesting State within a reasonable time in advance.
3. The Central Authority of the Requested State shall return a proof of
service in the manner specified in the Request. Acceptable means of proving service
may include:
(a) the signature of the person upon whom service has been requested
acknowledging receipt of service; or
(b) a report of an official of the Requested State describing the effort to
obtain the signature of the person upon whom service has been
requested who has refused either to accept service or to
acknowledge receipt thereof, and specifying any reasons given for
such refusal.
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Article 16
Search and Seizure
1. The Requested State shall execute a request for the 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.
2. Upon request by the Central Authority of the Requesting State, every
official who has had custody of a seized item shall certify, through the use of Form E
appended to this Treaty, the identity of the item, the integrity of its condition, and the
continuity of its custody. The certificates shall be admissible in evidence in the
Requesting State as proof of the truth of the matters set forth therein.
3. The Central Authority of the Requested State may require that the
Requesting State agree to the terms and conditions deemed necessary to protect third
state interests in the item to be transferred.
Article 17
Return of Items
At or before the transfer of an item, including a document, record, or article of
evidence, furnished to the Requesting State in execution of a request under this Treaty,
the Central Authority of the Requested State may require that the Requesting State
return such item as soon as possible. A request for return of an item not made until
after transfer of the item shall be complied with by the Requesting State to the extent
feasible.
Article 18
Forfeiture
1. Upon request, the Requested State shall use its best efforts to ascertain
whether proceeds or instrumentalities of an offense, potentially forfeitable or otherwise
subject to seizure under the laws of either State, are located in the Requested State. The
request shall state the grounds for believing that such proceeds or instrumentalities are
so located. The Requested State shall inform the Requesting State of the results of its
inquiry.
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2. If, pursuant to its inquiry, the Requested State locates proceeds or
instrumentalities of an offense, it may, to the extent permitted by its laws, take protective
measures, including seizure and temporary immobilization, to ensure that such proceeds
or instrumentalities are available for forfeiture.
3. The Requested State may, to the extent permitted by its laws, give effect to
any final legal determination given in the Requesting State forfeiting such proceeds or
instrumentalities, or initiate its own legal action for the forfeiture of such assets.
4. The Contracting State that enforces a final legal determination relating to
proceeds or instrumentalities of offenses shall dispose of them in accordance with its
laws. Either Contracting State, to the extent permitted by its laws and upon such terms
as it deems to be appropriate, giving due consideration to relevant factors including the
extent of cooperation provided by the other Contracting State, may transfer all or part
of such assets, or the proceeds of their sale, to the other Contracting State.
Article 19
Restitution
The Contracting States shall assist each other to the extent permitted by their
respective laws to facilitate restitution. Assistance shall include transfer of items
obtained through criminal activity.
Article 20
Criminal Fines
The Contracting States shall assist each other to the extent permitted by their
respective laws in proceedings regarding criminal fines. Assistance shall not include
collection of criminal fines.
Article 21
Compatibility With Other Treaties
This Treaty is not intended to prevent the Contracting States from seeking and
granting assistance to each other through the provisions of other international
agreements or domestic laws.
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Article 22
Consultation
The Central Authorities shall consult, at times mutually agreed to by them, to
promote the most effective use of this Treaty. The Central Authorities may also agree
on such practical measures as may be necessary to facilitate the implementation of this
Treaty.
Article 23
Ratification, Entry Into Force, and Termination
1. This Treaty shall be subject to ratification, and the instruments of
ratification shall be exchanged at Prague as soon as possible.
2. This Treaty shall enter into force two months after the exchange of
instruments of ratification.
3. This Treaty shall apply to any requests presented after its entry into force
even if the relevant acts or omissions occurred before that date.
4. This Treaty shall remain in force until terminated by either Contracting
State by means of written notice to the other Contracting State. Termination shall take
effect six months following the date of notification.
IN WITNESS WHEREOF, the undersigned, being duly authorized for this
purpose, have signed this Treaty.
DONE at Washington, this fourth day of February 1998 in duplicate, in the
English and Czech languages, both texts being equally authentic.
FOR THE UNITED STATES OF AMERICA: FOR THE CZECH REPUBLIC:
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Form A
CERTIFICATION OF BUSINESS RECORDS
I, (name) , having been advised as a witness that a false
attestation subjects me to a penalty of criminal punishment, attest as follows:
I am employed by/associated with (name of business from which documents are
sought) in the position of (business position or title) and
by reason of my position am authorized and qualified to make this attestation.

Each of the records attached hereto is a record in the custody of the above-named
business that:
(A) was made, at or near the time of the occurrence of the matters set forth
therein [ circle appropriate number(s)]:
(1) by a person with knowledge of those matters;
(2) from information transmitted by a person with knowledge of those
matters;
(3) by a person who otherwise had a duty to record information
concerning such matters on behalf of the above-named business;
(B) was kept in the course of a regularly conducted business activity;
(C) was made by the business as a regular practice; and,
(D) if not an original record, is a duplicate of the original.
(date of execution)
(country of execution)
(signature)
14
Form B
CERTIFICATION OF ABSENCE OF BUSINESS RECORDS
I
, having been advised as a witness that a false
(name)
attestation subjects me to a penalty of criminal punishment, attest as follows:
I am employed by/associated with (name of business from which documents are
sought) in the position of (business position or title) and

by reason of my position am authorized and qualified to make this attestation.
As a result of my employment/association with the above-named business, I am
familiar with the business records it maintains. The business maintains business records
that are:
(A) made, at or near the time of the occurrence of the matters set forth therein
[circle appropriate number(s)]:
(1) by a person with knowledge of those matters;
(2) from information transmitted by a person with knowledge of those
matters;
(3) by a person who otherwise had a duty to record information
concerning such matters on behalf of the above-named business;
(B) kept in the course of a regularly conducted business activity; and
(C) made by the business as a regular practice.
Among the records so maintained are records of individuals and entities that
have accounts or otherwise transact business with the above-named business. I have
made or caused to be made a diligent search of those records. No records have been
found reflecting any business activity between the business and the following individuals
and entities:
If the business had maintained an account on behalf of or had participated in a
transaction with any of the foregoing individuals or entities, its business records would
reflect that fact.
(date of execution)
(country of execution)
(signature)
15
Form C
CERTIFICATION OF OFFICIAL RECORDS
I,
, having been advised as a witness that a false
(name)
attestation subjects me to a penalty of criminal punishment, attest as follows:
1. (name of public authority) is a government office or
agency of (country) and is authorized by law to
maintain official records setting forth matters required by law to be
reported and recorded or filed;
2. my position with the above-named public authority is (official
title);
3. in my official capacity I have caused the production of true and accurate
copies of records maintained by that public authority; and
4. those copies are described below and attached.
Description of records:
(signature)
(Official Seal or Stamp)
(date)
16
Form D
CERTIFICATION OF ABSENCE OF OFFICIAL RECORDS
I,
name) ,
( having been advised as a witness that a false
attestation subjects me to a penalty of criminal punishment, attest as follows:
1. (name of public authority) is a government office or
and is authorized by law to
agency of (country)
maintain official records setting forth matters that are required by law to
be reported and recorded or filed;
2. records of the type described below set forth matters that are required by
law to be reported and recorded or filed, and such matters regularly are
recorded or filed by the above-named public authority;
3. my position with the above-named public authority is
(official
title);
4. in my official capacity I have made, or caused to be made, a diligent
search of the above-named public authority's records for the records
described below; and;
5. no such records have been found to exist therein.
Description of records:
(signature)
(Official Seal or Stamp)
(date)
17
Form E
CERTIFICATION WITH RESPECT TO SEIZED ITEMS
I,
, having been advised as a witness that a false
(name)
attestation subjects me to a penalty of criminal punishment, attest as follows:
My position with the Government of (country) is

(official title)
6. I received custody of the items listed below from
on (date)
person)
(name of
at
(place) ; and
7. I relinquished custody of the items listed below to (name of
person) on (date) at
in the same condition as when I received
(place)

them (or, if different, as noted below). (Official Seal or Stamp)
Description of items:
Changes in condition while in my custody:
(date of execution)
(country of execution)
(signature)
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