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12978 Ukraine - Treaty on Mutual Legal Assistance in Criminal Matters


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12978

 

 

MUTUAL LEGAL ASSISTANCE

 

 

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and UKRAINE

 

Signed at Kiev July 22, 1998


with

Annex

 

 

 


 

 


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.”


 

 

 

 


UKRAINE

Mutual Legal Assistance

Treaty signed at Kiev July 22, 1998;
Transmitted by the President of the United States of America
to the Senate November 10, 1999 (Treaty Doc. 106-16,
106th Congress, 1st Session);
Reported favorably by the Senate Committee on Foreign Relations
September 27, 2000 (Senate Executive Report No. 106-24,
106th Congress, 2d Session);
Advice and consent to ratification by the Senate
October 18, 2000;
Ratified by the President January 5, 2001;
Ratified by Ukraine February 10, 2000;
Ratifications exchanged February 27, 2001;
Entered into force February 27, 2001.
With annex.

TREATY
BETWEEN
THE UNITED STATES OF AMERICA
AND
UKRAINE
ON
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
The United States of America and Ukraine,
Desiring to improve the effectiveness of the competent 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:
ARTICLE I
SCOPE OF ASSISTANCE
1. The Contracting States 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, and collection of fines; and
(h) any other form of assistance not prohibited by the laws of the Requested State.
3. Assistance shall he 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
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. Each Contracting State shall have a Central Authority to make and receive
requests pursuant to this Treaty.
2. For the United States of America, the Central Authority shall he the
Attorney General or a person designated by the Attorney General. For Ukraine, the
Central Authority shall be the Ministry of Justice and the Office of the Prosecutor
General.
3. Each Central Authority shall make only such requests as it considers and
approves. The Central Authority for the Requesting State shall use its best efforts to
ensure that a request is not made where, in its view:
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(a) the offense on which the request is based does not have serious consequences; or
(b) the extent of the assistance to be requested is disproportionate to the sentence
expected upon conviction.
4. 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 this 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 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 he 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 nature and subject matter of the investigation, prosecution,
or proceeding, and the applicable provisions of law for each offense;
(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:
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(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 proceedings, 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 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,
including certifications specified in Articles 8, 9, and 15 of this Treaty through
completion of the appropriate forms annexed to this Treaty;
(h) information as to the expenses related to travel and subsistence of a person
asked to appear outside the Requested State; 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 competent authorities of the Requested State
shall have authority to issue subpoenas, search and arrest warrants, or other orders
necessary to execute the request.
2. The Central Authority of the Requested State shall represent or make
arrangements for representation of the interests of the Requesting State in the
execution in the Requested State of a request for assistance.
3. Requests shall be executed in accordance with the laws of the Requested State
except to the extent that this 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.
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
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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
inquiries 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 the
request. If the 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.
ARTICLE 6
COSTS
1. The Requested State shall pay all costs relating to the execution of the
request, except for the following:
(a) the fees of experts;
(b) the costs of interpretation, translation, and transcription; and
(c) the expenses related to travel and subsistence of persons travelling either in the
Requested State for the convenience of the Requesting State or pursuant to
Articles 10 and 11 of this Treaty.
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 evidence or information 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 evidence or
information 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
evidence or information subject to such conditions, the Requesting State shall use its
best efforts to comply with the conditions.
3. Nothing in this Article shall preclude the use or disclosure of evidence or
information 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 possible use or disclosure.
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4. Evidence or information that has been made public in the Requesting State in
a manner consistent with paragraph 1 or 2 of this Article 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 testimony or 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 he 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 shall nonetheless be taken and the claim made known by written
notification to the Central Authority of the Requesting State for resolution by the
competent authorities of that State.
5. If specified in a request, evidence produced in the Requested State pursuant
to this Article or referred to in testimony taken under this Article shall be certified
by the appropriate form attached to the request. Business records certified as
authentic by the appropriate form, or the form certifying the absence or non-
existence of such records, shall be admissible in evidence in the Requesting State as
proof of the matters set forth therein.
ARTICLE 9
OFFICIAL RECORDS
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 government departments and agencies 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 a government department or
agency 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 refuse to execute,
entirely or in part, a request for records not publicly available.
3. If specified in a request, evidence produced in the Requested State pursuant
to this Article shall be certified by the appropriate form attached to the request.
Official records certified as authentic by the appropriate form, or the form certifying
the absence or non-existence of such records, shall be admissible in evidence in the
Requesting State as proof of the matters set forth therein.
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ARTICLE 10
TESTIMONY OR EVIDENCE OUTSIDE THE REQUESTED STATE
1. When the Requesting State requests the appearance of a person in that State
or in a third State, the Requested State shall invite the person to appear before the
appropriate authority in the Requesting or in the third 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 he 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 after a competent
authority of the Requesting State has notified a person appearing pursuant to this
Treaty that the person's presence is no longer required, and that person, being free to
leave, has not left within seven days or, having left, has voluntarily returned.
ARTICLE 11
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
Treaty shall be transferred from the Requested State to the Requesting State or to
the third State for that purpose if the person consents and if the Central Authorities
of both 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 both Central Authorities;
(h) 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; and
(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
shall not exceed the time remaining to be served on that sentence.
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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 a third State whose personal appearance has been
requested by the Requesting State to give testimony or evidence or otherwise
provide assistance in an investigation, a prosecution, or a proceeding related to a
criminal matter.
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 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.
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. If specified in a request, every official in the Requested State who has had
custody of a seized item shall certify, through the use of a form attached to the
request, the identity of the item, the continuity of custody, and any changes in
condition. Such certificates shall be admissible in evidence in the Requesting State as
proof 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 party interests in the item to be transferred.
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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 and records, furnished to it in execution of a request under this Treaty.
ARTICLE 17
ASSISTANCE IN FORFEITURE PROCEEDINGS
1. If the Central Authority of one Contracting State becomes aware of proceeds
or instrumentalities of offenses that are located in the other State and may be
forfeitable or otherwise subject to seizure under the laws of that State, it may so
inform the Central Authority of 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. These authorities
shall issue their decision in accordance with the laws of their country. The Central
Authority of the State that received the information shall inform the Central
Authority of the State that provided the information of the action taken.
2. The Contracting States 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 Contracting State that has custody over proceeds or instrumentalities of
offenses shall dispose of them in accordance with its laws. Either Contracting State
may transfer all or part of such assets, or the proceeds of their sale, to the other
State, to the extent permitted by the transferring State'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
Contracting State from granting assistance to the other Contracting State through the
provisions of other applicable international agreements, or through the provisions of
its national laws. The Contracting States may also provide assistance pursuant to any
bilateral arrangement, agreement, or practice that may be applicable.
ARTICLE 19
CONSULTATION
The Central Authorities of the Contracting States 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 Washington as soon as possible.
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2. This Treaty shall enter into force upon the exchange of instruments of
ratification.
3. Either Contracting State may terminate this Treaty 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 respective plenipotentiaries have signed this Treaty.
DONE at Kyiv this twenty-second day of July, 1998, in duplicate in the English and
Ukrainian languages, both texts being equally authentic.
FOR THE UNITED STATES
OF AMERICA:[Signature]
FOR UKRAINE:[Signature]
ANNEX
TO THE TREATY
BETWEEN
THE UNITED STATES OF AMERICA
AND
UKRAINE
ON
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
Form A: Certification of Business Records
Form B: Certification of Absence or Non-Existence of Business Records
Form C: Certification of Official Records
Form D: Certification of Absence or Non-Existence of Official Records
Form E: Certification with respect to Seized Items
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,
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)
FORM B
CERTIFICATION OF ABSENCE OR NON-EXISTENCE 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.
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:
(A) are made, at or near the time of the occurrence of the matters set forth therein
by, or from information transmitted by, a person with knowledge of those
matters;
(B) are kept in the course of a regularly conducted business activity; and
(C) are 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)
(place of execution)
(signature)
FORM C
CERTIFICATION OF OFFICIAL RECORDS
I, (name) , certify 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
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 records:
(signature)
(Official Seal or Stamp)
(date)
FORM D
CERTIFICATION OF ABSENCE OR NON-EXISTENCE OF OFFICIAL
RECORDS
I, (name) , certify 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 that are
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 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)
FORM E
CERTIFICATION WITH RESPECT TO SEIZED ITEMS
I, (name) , having been advised as a witness that a false attestation subjects me to
a penalty of criminal punishment, attest as follows:
1. I am employed by (country) and my position or title is (position or title) ;
2. I received custody of the items listed below from (name of person) on
(date) at (place) ; and
3. I relinquished custody of the items listed below to (name of person) on
(date) at (place) in the same condition as when I received them (or, if
different, as noted below).
Description of items:
Changes in condition while in my custody:
(date of execution)
(place of execution) (Official Seal or Stamp)
(signature)

 

 



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