printable banner

U.S. Department of State - Great Seal

U.S. Department of State

Diplomacy in Action

13037 Romania - Treaty on Mutual Legal Assistance in Criminal Matters


   
Share

TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13037

 

 

MUTUAL LEGAL ASSISTANCE

 

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and ROMANIA

 

Signed at Washington May 26, 1999

 

 

 

 



 

 


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.”


 

 

 

 


ROMANIA

Mutual Legal Assistance

Treaty signed at Washington May 26, 1999;
Transmitted by the President of the United States of America
to the Senate February 3, 2000 (Treaty Doc. 106-20,
106th Congress, 2d 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 Romania April 24, 2000;
Ratifications exchanged at Bucharest October 17, 2001;
Entered into force October 17, 2001.

TREATY BETWEEN
THE UNITED STATES OF AMERICA
AND
ROMANIA
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 Official Records
Article 10 Appearance Outside of the
Requested 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 Proceeds and Instrumentalities
of Offenses
Article 18 Compatibility with Other
Arrangements
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 United States of America and Romania,
Desiring to improve the effectiveness 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 Contracting 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. Except as otherwise provided in this Treaty, 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
Contracting 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.
Article 2
Central Authorities
1. Each Contracting 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 Romania, the
Central Authority shall be 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 execution of the request would prejudice the security or similar
essential interests of the Requested State;
(c) the request relates to an offense which is considered by the Requested
State to be a political offense; or
(d) the request is not made in conformity with 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.
-4-
3. If the Central Authority of the Requested State denies assistance pursuant
to this Article, it shall inform the Central Authority of the Requesting State of the reasons
for the denial.
4. The Requested State shall not refuse to execute a request on the ground of
bank secrecy.
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.
2. The request shall be translated into the language of the Requested State
unless otherwise agreed. Any supporting documentation shall be translated into the
language of the Requested State, if necessary, upon request by the Requested State.
3. 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) the reasons for which the evidence, information, or other assistance is
sought.
4. 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;
-5-
(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 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;
(i) any time limit within which the request should be executed; and
(j) 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 judicial or other authorities of the Requested State
shall have power 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 Central Authority of the Requesting State in the
execution of a request for assistance in the Requested State.
3. Requests shall be executed according to the laws and procedures 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.
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, prior to the execution
of the request, 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 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
therefor.
-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, which shall be paid by the
Requesting State:
(a) the fees of experts;
(b) the costs of translation, interpretation, and
transcription; and
(c) the allowances and expenses related to travel of
persons pursuant to Articles 10, 11 and 12.
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 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.
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
-8-
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 a manner consistent with paragraph 1 or 2 may thereafter be used.
Article 8
Testimony or Evidence in the Requested State
1. A person in the Requested State from whom testimony or evidence is
requested shall be compelled, if necessary, to appear, testify, or produce items, including
documents, records and articles of evidence.
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 pose
questions to be asked of the person giving the testimony or evidence. The persons present
at the execution of a request shall be permitted to make a verbatim record of the
proceedings. The use of technical means to make such a verbatim record shall be
permitted.
4. If the person referred to in paragraph 1 asserts a claim of immunity,
incapacity, or privilege under the laws of the Requesting State, but not under the laws of
the Requested State, the testimony or evidence 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 that has been produced in the Requested State pursuant to this
Article or that has been the subject of testimony taken under this Article shall, upon
-9-
request, be certified by an attestation, including, in the case of business records,
certification 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 certified by Form A, or Form B certifying the absence
or nonexistence of such records, shall be admissible in evidence hi the Requesting State.
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 a governmental 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 a governmental 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 the Requested State's own
governmental 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 certified
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 certification shall be necessary. Records certified by
Form C , or Form D certifying the absence or nonexistence of such records, shall be
admissible in evidence in the Requesting State.
Article 10
Appearance Outside of the Requested State
1. When the Requesting State requests that a person in the Requested State
appear in the Requesting State or in a third state for the purpose of assistance under this
-10-
Treaty, the Requested State shall invite the person to do so. The person may agree or
refuse to appear. The Central Authority of the Requested State shall promptly inform the
Central Authority of the Requesting State of the person's response. If necessary, the
Requesting State shall be responsible for obtaining any authorization from a third state.
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 in paragraph 3 of 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 Requesting State 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 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 for that purpose if the person consents and
if the Central Authorities of both States agree. If necessary, the Requesting State shall be
responsible for obtaining any authorization from a third state.
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 for that purpose 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; and
(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.
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.
-12-
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 in the manner specified
in the Request.
Article 15
Search and Seizure
1. The Requested State shall execute a request that it search for, seize, and
transfer 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 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
Forms shall be admissible in evidence in the Requesting State.
3. The Central Authority of the Requested State may require that the
-13-
Requesting State agree to 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 and other articles of evidence, furnished to it in execution of a request
under this Treaty.
Article 17
Proceeds and Instrumentalities of Offenses
1. If the Central Authority of one Contracting Party becomes aware that
proceeds or instrumentalities of offenses that may be forfeitable or otherwise subject to
seizure are located in the other Contracting Party, it may so inform the Central Authority
of the other Contracting Party. If the Contracting 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
Contracting Party that received the information shall inform the Central Authority of the
Contracting Party that provided the information of the action taken.
2. The Contracting 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 Contracting Party that has custody over proceeds or instrumentalities
of offenses shall dispose of them in accordance with its laws. Either Contracting Party
may transfer to the other Contracting Party all or part of such assets, or the proceeds of
-14-
their sale, to the extent not prohibited by the transferring Contracting Party's laws and
upon such terms as it deems appropriate.
Article 18
Compatibility with Other Arrangements
Assistance and procedures set forth in this Treaty shall not prevent either
Contracting Party from granting assistance to the other Contracting Party through the
provisions of other applicable international agreements, or through the provisions of its
national laws. The Contracting 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 Contracting 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 as soon as possible.
2. This Treaty shall enter into force upon the exchange of instruments of
ratification.
3. This Treaty shall apply to any request presented after the date of its entry
into force whether the relevant acts or omissions occurred prior to or after that date.
-15-
4. Either Contracting Party may terminate this Treaty by means of written
notice to the other Contracting Party. Termination shall take effect six months following
the date of receipt of the notification.
IN WITNESS WHEREOF, the undersigned, being duly authorized for this purpose, have
signed this Treaty.
DONE at Washington, in duplicate, this twenty-sixth day of May, 1999, in the English and
Romanian languages, both texts being equally authentic.
FOR THE UNITED STATES OF AMERICA: FOR ROMANIA:
-16-
Form A
CERTIFICATION OF BUSINESS RECORDS
I, attest on penalty of criminal punishment for false statement
[name]
or attestation that I am employed by/associated with
[name of business from which documents are sought]
in the position of [business position or title] 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, 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]
-17-
Form B
CERTIFICATION OF ABSENCE OR
NONEXISTENCE OF BUSINESS RECORDS
I, attest on penalty of criminal punishment for false statement
[name]
or 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 authorized
[business position or title]
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]
-16-
Form C
CERTIFICATION OF OFFICIAL RECORDS
I, attest on penalty of criminal punishment for false statement
[name]
or attestation that:
1. [name of office or agency] is an 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 Documents:
[signature]
[date]
Official Seal
-19-
Form D
CERTIFICATION OF ABSENCE OR
NONEXISTENCE OF OFFICIAL RECORDS
I [name] , attest on penalty of criminal punishment for false statement
or attestation that:
1.
[name of office or agency] is an 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. 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. I have made or caused to be made a diligent search of the records
maintained by that public authority; and
5. No such records have been found to exist therein.
Description of Documents:
[signature]
[date]
Official Seal
-20-
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 is
[country]
[official title, including agency];
2. I received custody of the items listed below from
[name of person]
on [date] , at ; and [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 Articles:
Changes in condition while in my custody:
[date of execution]
[place of execution]
[signature]
Official Seal

 

 

 



Back to Top
Sign-in

Do you already have an account on one of these sites? Click the logo to sign in and create your own customized State Department page. Want to learn more? Check out our FAQ!

OpenID is a service that allows you to sign in to many different websites using a single identity. Find out more about OpenID and how to get an OpenID-enabled account.