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12940 Estonia - Treaty on Mutual Legal Assistance in Criminal Matters


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12940

 

 

MUTUAL LEGAL ASSISTANCE

 

 

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and ESTONIA

 

Signed at Washington April 2, 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.”


 

 

 

 


ESTONIA

Mutual Legal Assistance

Treaty signed at Washington April 2, 1998;
Transmitted by the President of the United States of America
to the Senate June 19, 1998 (Treaty Doc. 105-52,
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 Estonia September 10, 1998;
Ratifications exchanged October 20, 2000;
Entered into force October 20, 2000.

 

 

 

 

 

TREATY
BETWEEN THE GOVERNMENT OF
THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE
REPUBLIC OF ESTONIA
ON
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
TABLE OF CONTENTS
Article 1 Scope of Assistance
Article 2 Central Authorities
Article 3 Limitations on Assistance
Article 4 Form and Contents of Requests
Article 5 Execution of Requests
Article 6 Costs
Article 7 Limitations on Use
Article 8 Testimony or Evidence in the Requested State
Article 9 Records of Government Agencies
Article 10 Testimony in the Requesting State
Article 11 Transfer of Persons in Custody
Article 12 Transit of Persons in Custody
Article 13 Location or Identification of Persons or Items
Article 14 Service of Documents
Article 15 Search and Seizure
Article 16 Return of Items
Article 17 Assistance in Forfeiture Proceedings
Article 18............. Compatibility with Other Treaties
Article 19 Consultation
Article 20 Ratification, Entry Into Force, and Termination
FORMS
Form A Certification of Business Records
Form B Certification of Absence or Nonexistence of
Business Records
Form C Certification of Official Records
Form D Certification of Absence or Nonexistence of
Official Records
Form E Certification with Respect to Seized Items
The Government of the United States of America and the Government of the Republic of
Estonia (hereinafter referred to as "the Parties"),
Desiring to improve the effectiveness of the law enforcement authorities of both countries
in the investigation, prosecution, and prevention of crime through cooperation and mutual legal
assistance in criminal matters,
Have agreed as follows:
-2-
Article 1
Scope of Assistance
1. The Parties shall provide mutual assistance, in accordance with the
provisions of this Treaty, in connection with the investigation, prosecution, and
prevention of offenses, and in proceedings related to criminal matters.
2. Assistance shall include:
(a) taking the testimony or statements of persons;
(b) providing documents, records, and other items;
(c) locating or identifying persons or items;
(d) serving documents;
(e) transferring persons in custody for testimony or other purposes;
(f) executing searches and seizures;
(g) assisting in proceedings related to immobilization and forfeiture of
assets; restitution; collection of fines; and
(h) any other form of assistance not prohibited by the laws of the
Requested State.
3. Assistance shall be provided without regard to whether the conduct that is
the subject of the investigation, prosecution, or proceeding in the Requesting State would
constitute an offense under the laws of the Requested State.
4. This Treaty is intended solely for mutual legal assistance between the
Parties. 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.
-3-
Article 2
Central Authorities
1. Each Party shall designate a Central Authority to make and receive
requests pursuant to this Treaty.
2. For the United States of America, the Central Authority shall be the
Attorney General or a person designated by the Attorney General. For the Republic of
Estonia, the Central Authority shall be the Ministry of Justice or a person designated by
the Minister of Justice.
3. The Central Authorities shall communicate directly with one another for the
purposes of this Treaty.
Article 3
Limitations on 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;
(b) the request relates to a political offense;
(c) the execution of the request would prejudice the security 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.
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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 and Contents 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. If the request is not in writing, it shall be confirmed in writing within ten days
unless the Central Authority of the Requested State agrees otherwise. The request shall
be in the language of the Requested State unless otherwise agreed.
2. The request shall include the following:
(a) the name of the authority conducting the investigation, prosecution,
or proceeding to which the request relates;
(b) a description of the subject matter and nature of the investigation,
prosecution, or proceeding, including the specific criminal offenses
that relate to the matter;
(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;
(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;
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(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 the manner in which any testimony or statement is
to be taken and recorded;
(f) a description of the testimony or statement sought, which may
include a list of questions to be asked of a person;
(g) a description of any particular procedure to be followed in
executing the request;
(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 the
request or, when appropriate, shall transmit it to the authority having jurisdiction to do
so. The competent authorities of the Requested State shall do everything in their power
to execute the request. The Courts or other competent authorities of the Requested State
shall have authority to issue subpoenas, search warrants, or other orders necessary to
execute the request.
2. The Central Authority of the Requested State shall make all necessary
arrangements for representation of the Requesting State in the execution of a request for
assistance in the Requested State.
-6-
3. Requests shall be executed in accordance with the laws of the Requested
State except to the extent that this Treaty provides otherwise. Procedures specified in the
request shall be followed except to the extent that those procedures cannot lawfully be
followed in the Requested State. Where neither the Treaty nor the request specifies a
particular procedure, the request shall be executed in accordance with the appropriate
procedure under the laws applicable for criminal investigations or proceedings in the
Requested State.
4. If the Central Authority of the Requested State determines that execution
of a request would interfere with an ongoing criminal investigation, prosecution, or
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 such
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 concerning 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 a request. If
execution of the request is denied, delayed, or postponed, the Central Authority of the
Requested State shall inform the Central Authority of the Requesting State of the reasons
for the denial, delay, or postponement.
-7-
Article 6
Costs
1. The Requested State shall pay all costs relating to the execution of a
request, including the costs of representation, except for the following:
(a) the fees of experts;
(b) the costs of translation, interpretation, and transcription;
(c) the allowances and expenses related to travel of persons traveling
either in the Requested State for the convenience of the Requesting
State or pursuant to Articles 10 and 11.
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.
Article 7
Limitations on Use
1. The Central Authority of the Requested State may require that the
Requesting State not use any information or evidence obtained under this Treaty in any
investigation, prosecution, or proceeding other than that 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.
2. The Central Authority of the Requested State may request that
information or evidence furnished under this Treaty be kept confidential or be used only
subject to terms and conditions that it may specify. If the Requesting State accepts the
information or evidence subject to such conditions, the Requesting State shall use its best
efforts to comply with the conditions.
-8-
3. Nothing in this Article shall preclude the use or disclosure of information
or evidence to the extent that there is an obligation to do so under the Constitution of the
Requesting State in a criminal prosecution. The Requesting State shall notify the
Requested State in advance of any such use or disclosure.
4. Information or evidence that has been made public in the Requesting State
in the normal course of the proceeding for which it was provided may thereafter be used
for any purpose.
Article 8
Testimony or 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 testify or produce
items, including documents and records. A person 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.
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
evidence pursuant to this Article.
3. The Requested State shall permit the presence of such persons as specified
in the request during the execution of the request and shall allow such persons to
question the person giving the testimony or 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 or evidence
-9-
shall nonetheless be taken and the claim made known to the Central Authority of the
Requesting State for resolution by the authorities of that State.
5. Evidence produced in the Requested State pursuant to this Article or that
is the subject of testimony taken under this Article shall, upon request, be authenticated,
by an attestation, including, with respect to 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 or
nonexistence of such records, shall be admissible in evidence in the Requesting State as
proof of the truth of the matters set forth therein.
Article 9
Records of Government Agencies
1. The Requested State shall provide the Requesting State with copies of
publicly available records, including documents or information in any form, in the
possession of an executive, legislative, or judicial authority in the Requested State.
2. The Requested State may provide copies of any records, including
documents or information in any form, that are in the possession of an executive,
legislative, or judicial authority in that State, but that are not publicly available, 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 for records that are not publicly available entirely or in part.
3. Records 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 by an official responsible for maintaining similar records through
the use of Form D appended to this Treaty. No further authentication shall be necessary.
-10-
Records authenticated by Form C, or Form D certifying the absence or nonexistence 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
Testimony in the Requesting State
1. When the Requesting State requests the appearance of a person in that
State, the Requested State shall invite the person to appear before the appropriate
authority in the Requesting State. The Central Authority of the Requested State shall
promptly inform the Central Authority of the Requesting State of the person's response.
2. The Requesting State shall indicate the extent to which the person's
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. The Central Authority of the Requesting State may, in its discretion,
determine that a person appearing in the Requesting State pursuant to this Article shall
not be subject to service of process, or be detained or subjected to any restriction of
personal liberty, by reason of any acts or convictions that preceded the person's
departure from the Requested State.
4. The safe conduct provided for by this Article shall cease seven days after
the Central Authority of the Requesting State has notified the Central Authority of the
Requested State that the person's presence is no longer required, or when the person,
having left the Requesting State, voluntarily returns. The Central Authority of the
RequestingState may, in its discretion, extend this period for up to fifteen days if it
determines that there is good cause to do so.
Article 11
Transfer of Persons in Custody
1. A person in the custody of the Requested State whose presence outside the
Requested State is sought for purposes of assistance under this Treaty shall be
transferred from the Requested 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 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 by both Central Authorities;
(c) the receiving State shall not require the sending State to initiate
extradition or any other proceedings for the return of the person
transferred;
(d) the person transferred shall receive credit for service of the sentence
imposed in the sending State for time served in the custody of the
receiving 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.
-12-
4. Safe conduct shall be provided in accordance with Article 10, 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 12
Transit of Persons in Custody
1. The Requested State may authorize the transit through its territory of a
person held in custody by the Requesting State or a third State, whose personal
appearance has been requested by the Requesting State in an investigation, prosecution,
or proceeding.
2. The Requested State shall have the authority and the obligation to keep the
person in custody during transit.
Article 13
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 14
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.
-13-
2. 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 a reasonable time before the scheduled appearance.
3. The Requested State shall return a proof of service to the Requesting State
in the manner specified in the request.
Article 15
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, 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
continuity of custody, and any changes in condition. No further certification shall be
required. The certificates shall be admissible in evidence in the Requesting State.
3. The Central Authority of the Requested State may require that the
Requesting State agree to the terms and conditions deemed to be necessary to protect
third party interests in the item to be transferred.
Article 16
Return of Items
The Central Authority of the Requested State may require that the Central
Authority of the Requesting State return, as soon as possible, any items, including
documents, records, or articles of evidence, furnished to it in execution of a request under
this Treaty.
-14-
Article 17
Assistance in Forfeiture Proceedings
1. The Central Authority of either Party may notify the Central Authority of
the other Party when it becomes aware of proceeds or instrumentalities of offenses that
are located in the other Party and may be forfeitable or otherwise subject to seizure
under the laws of that Party. If the Party receiving such information has jurisdiction in
this regard, it may present this information to its authorities for a determination whether
any action is appropriate. These authorities shall issue their decision in accordance with
the laws of their country. The Central Authority of the Party that received the
information shall inform the Central Authority of the Party that provided the
information of the action taken.
2. The Parties shall assist each other to the extent permitted by their
respective laws in proceedings relating to the forfeiture of the proceeds and
instrumentalities of offenses, restitution to the victims of crime, and the collection of fines
imposed as sentences in criminal prosecutions. This may include action to temporarily
immobilize the proceeds or instrumentalities pending further proceedings.
3. The Party that has custody over proceeds or instrumentalities of offenses
shall dispose of them in accordance with its laws. Either Party may transfer all or part of
such assets, or the proceeds of their sale, to the other Party, to the extent permitted by the
transferring Party's laws and upon such terms as it deems appropriate.
Article 18
Compatibility with Other Treaties
Assistance and procedures set forth in this Treaty shall not prevent either of the
Parties from granting assistance to the other Party through the provisions of other
applicable international agreements, or through the provisions of its national laws. The
-15-
Parties may also provide assistance pursuant to any bilateral arrangement, agreement, or
practice that may be applicable.
Article 19
Consultation
The Central Authorities of the Parties 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 20
Ratification, Entry Into Force, and Termination
1. This Treaty shall be subject to ratification, and the instruments of
ratification shall be exchanged at Tallinn as soon as possible.
2. This Treaty shall enter into force upon the exchange of instruments of
ratification.
3. Either Party may terminate this Treaty by means of written notice to the
other Party. Termination shall take effect six months following the date of notification.
-16-
IN WITNESS WHEREOF, the undersigned, being duly authorized by their
respective Governments, have signed this Treaty.
DONE at Washington this second day of April, 1998, in duplicate,
in the English and Estonian languages, both texts being equally authentic.
FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF
THE UNITED STATES OF AMERICA: THE REPUBLIC OF ESTONIA:
-17-
Form A
CERTIFICATION OF BUSINESS RECORDS
I, attest on penalty of criminal punishment for false statement or
[name]
attestation that I am employed by/associated with
[name of business from which documents are sought]
in the position of and by reason of my position am
(business position or title]
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, by
(or from information transmitted by) a person with knowledge of those
matters;
(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]
[place of execution]
[signature]
-18-
Form B
CERTIFICATION OF ABSENCE OR NONEXISTENCE OF BUSINESS RECORDS
I, , attest on penalty of criminal punishment for false statement or
[name]
attestation that I am employed by/associated with
[name of business from which documents are sought]
in the position of and by reason of my position am
(business position or title]
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 records that are:
(A) made, at or near the time of the occurrence of the matters set forth, by (or
from information transmitted by) a person with knowledge of those matters;
(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:


[date of execution]
[place of execution]
[signature]

-19-
Form C
CERTIFICATION OF OFFICIAL RECORDS
I, attest on penalty of criminal punishment for false statement or
[name]
attestation that:
1. is a government office or agency of
[name of office or agency]
and is authorized by law to maintain official records
[country]
setting forth matters authorized 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 Documents:
[signature]
[date]
Official Seal
-20-
Form D
CERTIFICATION OF ABSENCE OR NONEXISTENCE OF OFFICIAL RECORDS
I, attest on penalty of criminal punishment for false statement or
name
attestation that:
1. is a government office or agency of
[name of office or agency]
and is authorized by law to maintain official records
[country]
setting forth matters authorized by law to be reported and recorded or filed;
2. records of the type described below set forth matters that are authorized 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 caused the production of true and accurate
copies of records maintained by that public authority; and
5. no such records have been found to exist therein.
Description of Documents:
[signature]
[date]
Official Seal
-21-
Form E
CERTIFICATION WITH RESPECT TO SEIZED ITEMS
I, [name] , attest on penalty of criminal punishment for false statement or
attestation that:
1. My position with the Government of [country] is
[official title]
2. I received custody of the items listed below from [name of person]
on , at [date] [place] ; and
3. I relinquished custody of the items listed below to
on , at
[date] [
name of person]
in the same condition as
[place]
when I received them (or, if different, as noted below).
Description of Articles:
Changes in condition while in my custody:
[date of execution]
[place of execution]
[signature]
Official Seal



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