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13078 Cyprus - Treaty on Mutual Legal Assistance in Criminal Matters


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13078

 

 

MUTUAL LEGAL ASSISTANCE

 

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and CYPRUS

 

Signed at Nicosia December 20, 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.”


 

 

 

 


CYPRUS

Mutual Legal Assistance

Treaty signed at Nicosia December 20, 1999;
Transmitted by the President of the United States of America
to the Senate July 13, 2000 (Treaty Doc. 106-35,
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 Cyprus July 30, 2002;
Ratifications exchanged at New York September 18, 2002;
Entered into force September 18, 2002.

TREATY BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE REPUBLIC OF CYPRUS
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 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 and Resolution of Disputes
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 Cyprus,
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:
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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. 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
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.
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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
Cyprus, the Central Authority shall be the Minister of Justice and Public Order or a
person designated by the Minister.
3. The Central Authorities shall communicate directly with one another for
the purposes of this Treaty.
4. In cases of urgency the Central Authorities may transmit requests through
the International Criminal Police Organization (INTERPOL).
Article 3
Limitations on Assistance
1. The Central Authority of the Requested State may deny assistance if:
(a) the request relates to a political offense or 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 execution of the request would violate the Constitution of the
Requested State or the obligations of the Requested State under any
international multilateral treaty relating to human rights; or
(d) the request is not made in conformity with the Treaty.
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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 pursuant
to this Article, 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 Requesting State accompanied by a translation 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.
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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;
(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 outside of the Requested State will be entitled; and
(i) any other information that may be brought to the attention of the
Requested State to facilitate the 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.
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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.
3. Requests shall be executed according to the internal 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. 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
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
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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 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 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
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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
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 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 shall be compelled, if necessary, to appear and testify or give statements or
produce items, including documents and 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 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 Requested State, the claim shall be resolved
in accordance with the laws of the Requested State. If, however, 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
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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
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 or nonexistence of such records, shall be admissible in evidence in the Requesting
State.
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 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 the Requested State's
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.
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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.
Article 10
Appearance Outside of the Requested State
1. When the Requesting State requests that a person in the Requested State
appear outside the Requested State, the Requested State shall invite the person to do so.
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
Requesting State may, in its discretion, extend this period for up to fifteen days if it
determines that there is good cause.
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Article 11
Transfer of Persons in Custody
1. A person in the custody of the Requested State whose presence outside of
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 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 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.
(e) where the receiving State is a third State, the Requesting State shall
make all arrangements necessary to meet the requirements of this
paragraph.
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Article 12
Transit of Persons in Custody
1. The Requested State may, subject to any constitutional limitations,
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
The Requested State shall use its best efforts to ascertain the location or identity in
the Requested State of persons or items specified in a request.
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.
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Article 15
Search and Seizure
1. The Requested State shall, to the extent permitted by its law, 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
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 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 Party becomes aware that proceeds or
instrumentalities of offenses that may be forfeitable or otherwise subject to seizure are
located in the other Party, it may so inform the Central Authority of the other Party. If
the Party receiving such information has jurisdiction in this regard, it may present this
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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 to the other
Party all or part of such assets, or the proceeds of their sale, to the extent not prohibited
by the transferring 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 Party
from granting assistance to the other Party through the provisions of other applicable
international agreements, or through the provisions of its national laws. The Parties may
also provide assistance pursuant to any bilateral arrangement, agreement, or practice
that may be applicable.
Article 19
Consultation and Resolution of Disputes
1. 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
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Authorities may also agree on such practical measures as may be necessary to facilitate
the implementation of this Treaty.
2. Any dispute arising out of the interpretation, application, or
implementation of this Treaty shall be resolved through diplomatic channels if the
Central Authorities are themselves unable to reach agreement.
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 the 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.
4. 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 receipt of the
notification.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their
respective Governments have signed this Treaty.
DONE at Nicosia, in duplicate, this 20th day of December, 1999, in the English and
Greek languages, both texts being equally authentic. In case of divergence the English
text shall prevail.
FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA: REPUBLIC OF CYPRUS:
Form A
CERTIFICATION OF BUSINESS RECORDS
I, attest on penalty of criminal punishment for false
name
statement 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
[business position or title]
authorized and qualified to make this attestation. Each of the records attached hereto is
the original or a duplicate of the original 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]
Sworn to or affirmed before me, (name), a judicial officer, this
day of , 20 .
Form B
CERTIFICATION OF ABSENCE OR NONEXISTENCE
OF BUSINESS RECORDS
I, attest on penalty of criminal punishment for false
[name]
statement or attestation that I am employed by/associated with
[name of business from which documents
in the position of and by reason of my position am
are sought] [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]
Sworn to or affirmed before me, (name), a judicial officer, this
day of , 20_.
Form C
CERTIFICATION OF OFFICIAL RECORDS
I, attest on penalty of criminal punishment for false
[name]
statement or attestation that:
1. is a government office or
[name of office or agency]
agency of and is authorized by law to maintain official
[country]
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
Form D
CERTIFICATION OF ABSENCE OR NONEXISTENCE
OF OFFICIAL RECORDS
I, attest on penalty of criminal punishment for false
[name]
statement or attestation that:
1. is a government office or agency
[name of office or agency]
of 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
Form E
CERTIFICATION WITH RESPECT TO SEIZED ITEMS
I, attest on penalty of criminal punishment for false
[name]
statement or attestation that:
1. My position with the Government of is
[country]
[official title]
2. I received custody of the items listed below from
at
[date] [place];
on
[name of person]
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

 

 



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