Bulgaria Extradition Treaty with the United States

Bulgaria International Extradition Treaty with the United States

September 19, 2007, Date-Signed

May 21, 2009, Date-In-Force

Message from the President of the United States

January 22, 2008.–Treaty was read the first time, and together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate

LETTER OF TRANSMITTAL

The White House, January 22, 2008.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Extradition
Treaty between the Government of the United States of America
and the Government of the Republic of Bulgaria (the
“Extradition Treaty” or the “Treaty”) and the Agreement on
Certain Aspects of Mutual Legal Assistance in Criminal Matters
between the Government of the United States of America and the
Government of the Republic of Bulgaria (the “MLA Agreement”),
both signed at Sofia on September 19, 2007. I also transmit,
for the information of the Senate, the report of the Department
of State with respect to the Extradition Treaty and the MLA
Agreement.

The new Extradition Treaty would replace the outdated
Extradition Treaty between the United States and Bulgaria,
signed in Sofia on March 19, 1924, and the Supplementary
Extradition Treaty, signed in Washington countries on mutual
legal assistance in on June 8, 1934. between the two criminal
matters. The MLA Agreement is the first agreement Both the
Extradition Treaty and the MLA Agreement fulfill the
requirements for bilateral instruments (between the United
States and each European Union (EU) Member State) that are
contained in the Extradition and Mutual Legal Assistance
Agreements between the United States and the EU currently
before the Senate.

The Extradition Treaty follows generally the form and
content of other extradition treaties recently concluded by the
United States. It would replace an outmoded list of
extraditable offenses with a modern “dual criminality”
approach, which would enable extradition for such offenses as
money laundering, and other newer offenses not appearing on the
list. The Treaty also contains a modernized “political
offense” clause, and it provides that extradition shall not be
refused based on the nationality of a person sought for any of
a comprehensive list of serious offenses. Finally, the new
Treaty incorporates a series of procedural improvements to
streamline and speed the extradition process.

Because the United States and Bulgaria do not have a
bilateral mutual legal assistance treaty in force between them,
the MLA Agreement is a partial treaty governing only those
issues regulated by the U.S.-EU Mutual Legal Assistance
Agreement, specifically: identification of bank information,
joint investigative teams, video-conferencing, expedited
transmission of requests, assistance to administrative
authorities, use limitations, confidentiality, and grounds for
refusal. This approach is consistent with that taken with the
other EU Member States (Denmark, Finland, Malta, Portugal,
Slovak Republic, and Slovenia) with which the United States did
not have an existing mutual legal assistance treaty.

I recommend that the Senate give early and favorable
consideration to the Extradition Treaty and MLA Agreement,
along with the U.S.-EU Extradition and Mutual Legal Assistance
Agreements and the other related bilateral instruments between
the United States and European Union Member States.

George W. Bush.

Department of State

Washington, November 1, 2007

The President

The White House.

The President: I have the honor to submit to you the
Extradition Treaty between the Government of the United States
of America and the Government of the Republic of Bulgaria (the
“Extradition Treaty”) and the Agreement on Certain Aspects of
Mutual Legal Assistance in Criminal Matters between the
Government of the United States of America and the Government
of the Republic of Bulgaria (the “MLA Agreement”), both
signed at Sofia on September 19, 2007. Upon its entry into
force, the Extradition Treaty would replace the Extradition
Treaty between the United States and Bulgaria, signed at Sofia
on March 19, 1924, and the Supplementary Extradition Treaty,
signed at Washington on June 8, 1934. The MLA Agreement is the
first treaty between the two countries on mutual legal
assistance in criminal matters. The Extradition Treaty and the
MLA Agreement fulfill the requirements of the Agreements on
Extradition and Mutual Legal Assistance between the United
States of America and the European Union, both signed on June
25, 2003, which were transmitted to the Senate on September 28,
2006, for implementing bilateral instruments between the United
States and each member state of the European Union. The
article-by-article analyses of the two instruments are enclosed
in this report. I recommend that the Extradition Treaty and the
MLA Agreement be transmitted to the Senate for its advice and
consent to ratification. Both instruments are self-executing
and will not require implementing legislation.

Respectfully submitted,
Condoleezza Rice.

Enclosures: Overviews and analyses of the provisions of the
Extradition Treaty and MLA Agreement.

Extradition Treaty Between the Government of the United States of
America and the Government of the Republic of Bulgaria

OVERVIEW

The Extradition Treaty between the Government of the United
States of America and the Government of the Republic of
Bulgaria (the “Extradition Treaty” or the “Treaty”)
replaces an outdated 1924 extradition treaty, as amended by a
1934 supplementary treaty. This new Extradition Treaty also
serves to implement, as between the United States and Bulgaria,
the provisions of the Agreement on Extradition between the
United States of America and the European Union (the “U.S.-EU
Extradition Agreement”), currently before the Senate.

The following is an article-by-article description of the
provisions of the Treaty.

Article 1 obligates each Party to extradite to the other,
pursuant to the provisions of the Treaty, persons sought by
authorities in the Requesting State for prosecution or for
imposition or execution of a sentence for an extraditable
offense.

Article 2, which is taken from Article 4 of the U.S.-EU
Extradition Agreement, defines extraditable offenses. Article
2(1) defines an offense as extraditable if the conduct on which
the offense is based is punishable under the laws in both
States by deprivation of liberty for a period of more than one
year or by a more severe penalty. The approach taken in the
Treaty with respect to extraditable offenses is consistent with
the modern “dual criminality” approach, rather than the old
“list” approach, and is one of the key benefits of the new
Treaty. Use of a “dual criminality” clause, rather than the
categories of offenses listed in the 1924 Treaty, obviates the
need to renegotiate or supplement the Treaty as additional
offenses become punishable under the laws in both States and
ensures a comprehensive coverage of criminal conduct for which
extradition might be sought.

Article 2(2) further defines an extraditable offense to
include an attempt or a conspiracy to commit, or participation
in the commission of, an extraditable offense. The Parties
intended to include, under the broad description of
“participation,” the offenses of aiding, abetting,
counseling, or procuring the commission of an offense, as well
as being an accessory to an offense.

Additional direction is provided by Article 2(3), which
provides that an offense shall be an extraditable offense
regardless of whether: (a) the laws in the Requesting and
Requested States place the acts or omissions constituting the
offense within the same category of offenses or describe the
offense by the same terminology; (b) the offense is one for
which United States federal law requires the showing of such
matters as interstate transportation, or use of the mails or of
other facilities affecting interstate or foreign commerce, such
matters being jurisdictional only; or (c) in criminal cases
relating to taxes, customs duties, currency control or
commodities, the laws of the Requesting and Requested States
provide for the same kinds of taxes, customs duties or controls
on currency or on the import or export of the same kinds of
commodities.

With regard to offenses committed outside the territory of
the Requesting State, Article 2(4) provides that extradition
shall be granted in accordance with the provisions of the
Treaty if the laws of the Requested State provide for the
punishment of such conduct committed outside its territory in
similar circumstances. If the laws of the Requested State do
not provide for the punishment of such conduct committed
outside of its territory in similar circumstances, the
executive authority of the Requested State, in its discretion,
may proceed with extradition provided that all other
requirements for extradition are met.

Article 2(5) provides that, if extradition is granted for
an extraditable offense, it shall also be granted for any other
offense specified in the request if the latter offense is
punishable by one year’s deprivation of liberty or less,
provided that all other requirements for extradition are met.

Article 2(6) provides that, where the extradition request
is for enforcement of a sentence, the deprivation of liberty
remaining to be served must be at least four months.

Article 3(1) provides that extradition shall not be refused
based on the nationality of the person sought, for any offense
falling within a comprehensive list of 30 offenses. The list
mirrors those offenses for which surrender of nationals by one
member state of the European Union to another is mandatory
under the European Arrest Warrant procedure. Under the
Bulgarian Constitution, a treaty is required in order for
Bulgarian authorities to surrender a Bulgarian citizen to
another state for purposes of criminal prosecution. The United
States is the first country outside the European Union with
which Bulgaria has agreed to extradite nationals.

Article 3(2) provides that the Requested State additionally
may choose to extradite a national for an offense not
enumerated in paragraph 1. In the event that the Requested
State denies extradition on the sole basis of nationality with
respect to an offense not enumerated in Article 3(1), under
Article 3(3) the Requested State shall, at the request of the
Requesting State, submit the case to its competent authorities
for prosecution. Under Article 3(4), the Parties also may agree
to expand the list in paragraph 1 at a future time.

Article 4 governs political and military offenses as a
basis for the denial of extradition. As is customary in
extradition treaties, Article 4(1) provides that extradition
shall not be granted if the offense for which extradition is
requested constitutes a political offense. Article 4(2)
specifies five categories of offenses that shall not be
considered to be political offenses:

(a) an offense for which both Parties have the
obligation pursuant to a multilateral international
agreement to extradite the person sought or to submit
the case to their competent authorities for decision as
to prosecution;

(b) murder, manslaughter, malicious wounding,
inflicting grievous bodily harm, assault with intent to
cause serious physical injury, and serious sexual
assault;

(c) an offense involving kidnapping, abduction, or
any form of unlawful detention, including the taking of
a hostage;

(d) placing, using, threatening to use, or possessing
an explosive, incendiary, or destructive device capable
of endangering life, causing substantial bodily harm,
or causing substantial property damage; and

(e) a conspiracy or attempt to commit, or
participation in the commission of any of the offenses
set forth in (a)-(d).

Article 4(3) provides that, notwithstanding Article 4(2),
extradition shall not be granted if the executive authority of
the Requested State determines that the request was politically
motivated.

Article 4(4) provides that the executive authority of the
Requested State may refuse extradition for offenses under
military law that are not offenses under ordinary criminal law.
Desertion would be an example of such an offense.

Article 5(1) precludes extradition of a person who has been
convicted or discharged from proceedings with final and binding
effect by the competent authorities in the Requested State for
the offense for which extradition is requested. Article 5(1)
adopts a similar formulation to the U.S.-Austria Extradition
Treaty and clarifies that an acquittal for lack of
jurisdiction, or a discharge for lack of jurisdiction, is not
an obstacle to extradition.

Article 5(2) prohibits the Requested State from denying
extradition solely based on the existence of criminal
jurisdiction in the Requested State. Article 5(2) also ensures
that the Parties will apply their domestic law on prior
prosecution to give full force and effect to Articles 1 and 3
of the Treaty. Bulgarian criminal law allows for jurisdiction
in a wide range of situations, including situations where the
accused is a Bulgarian national but committed the crime abroad.
In addition, Bulgarian extradition law permits denial of
extradition where the offense for which extradition is
requested falls within the jurisdiction of Bulgarian courts.
Given these provisions of Bulgarian domestic law, Article 5(2)
provides important protections to ensure that U.S. extradition
requests to Bulgaria will not be denied based on Bulgaria’s
ability to assert criminal jurisdiction for the same offense
for which extradition has been requested.

Article 6 provides that extradition may be denied if
prosecution of the offense or execution of the penalty is
barred by lapse of time under the laws of the Requesting State.
Acts that would interrupt or suspend the prescriptive period in
the Requesting State are to be given effect by the Requested
State.

Article 7, which is taken from Article 13 of the U.S.-EU
Extradition Agreement, concerns capital punishment. It provides
that, when an offense for which extradition is sought is
punishable by death under the laws in the Requesting State but
not under the laws in the Requested State, the Requested State
may grant extradition on the condition that the death penalty
shall not be imposed on the person sought, or if for procedural
reasons such condition cannot be complied with by the
Requesting State, on condition that the death penalty, if
imposed, shall not be carried out. If the Requesting State
accepts extradition subject to such a condition, it must comply
with the condition.

Article 8 establishes extradition procedures and describes
the documents required to support a request for extradition.
Article 8(1), which is taken from Article 5(1) of the U.S.-EU
Extradition Agreement, provides that all requests for
extradition must be submitted through the diplomatic channel,
which shall include transmission through the channel specified
in Article 11(4) of the Treaty. Article 8(2) specifies the
documents, information, and legal texts that shall support all
extradition requests. Article 8(3) provides that a request for
the extradition of a person who is charged with an offense must
also be supported by such information as would provide a
reasonable basis to believe that the person sought committed
the offense for which extradition is sought. Article 8(4) sets
forth the items, in addition to those in paragraph 2, that must
accompany a request for the extradition relating to a person
who has been found guilty or been convicted of the offense for
which extradition is sought. It further requires that a request
for extradition of a person who has been convicted in absentia
must also be supported by such information as would provide a
reasonable basis to believe that the person sought committed
the offense for which extradition is sought, as well as
information regarding the circumstances under which the person
was absent from the proceedings. Article 8(5), which is taken
from Article 8 of the U.S.-EU Extradition Agreement, authorizes
the Requested State to require the Requesting State to furnish
additional information to support an extradition request, if
the Requested State deems it necessary to fulfill the
requirements of the Treaty. It specifies that such information
may be requested and supplied directly between the United
States Department of Justice and the Ministry of Justice of the
Republic of Bulgaria.

Article 9, which is taken from Article 5(2) of the U.S.-EU
Extradition Agreement, concerns admissibility of documents. It
provides that documents bearing the certificate or seal of
either the Ministry or Department of Justice or the foreign
affairs Ministry or Department of the Requesting State shall be
admissible in extradition proceedings in the Requested State
without further certification.

Article 10 provides that all documents submitted under the
Treaty by the Requesting State shall be translated into the
language of the Requested State, unless otherwise agreed.

Article 11 sets forth procedures and describes the
information that is required for the provisional arrest and
detention of the person sought pending presentation of the
formal extradition request and supporting documents. Article
11(1) provides for provisional arrest and sets forth procedures
for transmission of a request for provisional arrest. Article
11(2) specifies the information that must accompany an
application for provisional arrest. Article 11(3) requires the
Requested State to notify the Requesting State of the
disposition of the provisional arrest request and the reasons
for any inability to proceed with the request.

Article 11(4) provides that, if the Requested State has not
received the request for extradition and supporting documents
within sixty days of the date of provisional arrest, the person
may be discharged. Consistent with Article 7 of the U.S.-EU
Extradition Agreement, Article 11(4) provides an alternative
channel for receipt of extradition requests applicable with
respect to persons who have been provisionally arrested,
namely, through transmission of the request to the Embassy of
the Requested State in the Requesting State. Article 11(5)
provides that the discharge of a person from custody pursuant
to Article 11(4) does not prejudice the person’s subsequent re-
arrest and extradition if the extradition request and
supporting documents are delivered at a later date.

Article 12 specifies the procedures governing a decision on
the extradition request and the surrender of the person sought.
It requires the Requested State to promptly notify the
Requesting State of its decision regarding a request. If the
request is denied in whole or in part, the Requested State must
provide an explanation of the reasons for the denial and, upon
request, copies of pertinent judicial decisions. If extradition
is granted, the States shall agree on the time and place for
the surrender of the person sought. If the person sought is not
removed from the territory of the Requested State within the
time period prescribed by the law of that State, the person may
be discharged from custody, and the Requested State, in its
discretion, may subsequently refuse extradition for the same
offense(s).

Article 13 addresses temporary and deferred surrender.
Under Article 13(1), if a person whose extradition is sought is
being proceeded against or is serving a sentence in the
Requested State, the Requested State may defer extradition
proceedings until the proceedings have been concluded or the
sentence has been served in the Requested State. Alternatively,
the Requested State may conduct the extradition proceedings
and, if extradition is authorized, may choose to temporarily
surrender the person to the Requesting State for the purpose of
prosecution.

Consistent with Article 9 of the U.S.-EU Extradition
Agreement, Article 13(2) provides that the Requesting State
shall keep the person so surrendered in custody and shall
return that person to the Requested State after the conclusion
of the proceedings against that person, in accordance with
conditions to be determined by mutual agreement of the States.
Time spent in custody in the Requesting State pending
prosecution there may be deducted from the time to be served in
the Requested State. The return of the person to the Requested
State shall not require further extradition procedures.

Article 14, which is taken from Article 10 of the U.S.-EU
Extradition Agreement, governs the situation in which the
Requested State receives requests for the extradition or
surrender of the same person from more than one State, either
for the same offense or for different offenses. Under Article
14(1), in the event of requests by more than one State for the
same person, the executive authority of the Requested State
shall determine to which State, if any, it will surrender that
person. Article 14(2) provides that, in the event that Bulgaria
receives an extradition request from the United States and a
request for surrender pursuant to the European Arrest Warrant
for the same person, Bulgaria’s competent court of law, or such
other authority as Bulgaria may designate, shall determine to
which State, if any, it will surrender the person.

Article 14(3) provides a non-exclusive list of factors to
be considered by the Requested State in determining to which
State to surrender a person who is sought by more than one
State.

Article 15 provides that the Requested State may, to the
extent permitted under its law, seize and surrender to the
Requesting State all items, including articles, documents,
evidence, and proceeds, that are connected with the offense in
respect of which extradition is granted. Such items may be
surrendered even if the extradition cannot be carried out due
to the death, disappearance, or escape of the person sought.
The Requested State may condition the surrender of the items
upon satisfactory assurances from the Requesting State that the
property will be returned to the Requested State as soon as
practicable. The Requested State may also defer the surrender
of such items if they are needed as evidence in the Requested
State. The rights of third parties in such items are to be
respected in accordance with the laws of the Requested State.

Article 16 sets forth the Rule of Specialty, which, subject
to specific exceptions set forth in paragraph 3, prohibits a
person extradited under the Treaty from being detained, tried,
or punished in the Requesting State except for:

(a) any offense for which extradition was granted, or a
differently denominated offense based on the same facts as the
offense for which extradition was granted, provided such
offense is extraditable, or is a lesser included offense;

(b) any offense committed after the extradition of the
person; or

(c) any offense for which the competent authority of the
Requested State consents to the person’s detention, trial, or
punishment.

Article 16(2) provides that a person extradited under the
Treaty may not be the subject of onward extradition or
surrender for any offense committed prior to the extradition to
the Requesting State unless the Requested State consents. This
provision would preclude Bulgaria from transferring a fugitive
surrendered to it by the United States to a third country or
intemational tribunal without the consent of the United States.

Article 16(3) sets forth exceptions to the rule of
specialty. It provides that the restrictions set forth under
paragraphs 1 and 2 shall not prevent the detention, trial, or
punishment of an extradited person, or the extradition of a
person to a third State, if the extradited person either leaves
the territory of the Requesting State after extradition and
voluntarily returns to it or fails to leave the territory of
the Requesting State within twenty-five days of being free to
do so.

Consistent with Article 11 of the U.S.-EU Extradition
Agreement, Article 17 provides for simplified procedures in
situations where the person sought waives extradition or
consents to being surrendered. The rule of specialty
protections do not apply if a person waives extradition. If a
person consents to surrender, the consent of the person sought
may include agreement to waiver of protection of the rule of
specialty.

Article 18, which is taken from Article 12 of the U.S.-EU
Extradition Agreement, governs the transit through the
territory of one State of a person surrendered to the other
State by a third country, or to a third country by the other
State.

Article 19 contains provisions regarding representation and
the expenses associated with extradition. Specifically, the
Requested State is required to advise, assist, appear in court
on behalf of, and represent the interests of the Requesting
State in any proceedings arising out of a request for
extradition. Article 19(2) establishes that the Requested State
bears all expenses incurred in that State in connection with
the extradition proceedings, except that the Requesting State
pays expenses related to the translation of extradition
documents and the transportation of the person surrendered.
Article 19(3) specifies that neither State shall make any
pecuniary claim against the other arising out of the arrest,
detention, examination, or surrender of persons under the
Treaty.

Article 20(1) provides that the U.S. Department of Justice
and the Bulgarian Ministry of Justice may consult in connection
with the processing of individual cases and in furtherance of
efficient implementation of the Treaty.

Article 20(2), which is taken from Article 14 of the U.S.-
EU Extradition Agreement, provides for consultation between the
Parties when the Requesting State contemplates the submission
of particularly sensitive information in support of a request
for extradition, in order to determine the extent to which the
information can be protected by the Requested State in the
event of submission.

Article 21 makes the Treaty applicable to offenses
committed both before and after the date it enters into force.

Article 22 contains final clauses addressing the Treaty’s
ratification and entry into force. It provides that the Treaty
is subject to ratification and that the Treaty shall enter into
force upon the date of the latter of the diplomatic notes by
which the Parties notify each other that their internal legal
requirements for the entering into force of the Treaty have
been completed. Article 22(3) provides that, upon entry into
force of the Treaty, the Treaty shall supersede the Treaty of
Extradition between the United States of America and Bulgaria,
signed at Sofia on March 19, 1924, as well as the Supplementary
Extradition Treaty, signed at Washington on June 8, 1934, and
shall apply to all pending requests made under those prior
treaties.

Under Article 23, either State may terminate the Treaty
with six months’ written notice to the other State through the
diplomatic channel.

The Department of Justice joins the Department of State in
urging approval of this Treaty by the Senate at the earliest
possible date.

Agreement on Certain Aspects of Mutual Legal Assistance in Criminal
Matters Between the Government of the United States of America and the
Government of the Republic of Bulgaria

OVERVIEW

The Agreement on Certain Aspects of Mutual Legal Assistance
in Criminal Matters between the Government of the United States
of America and the Government of the Republic of Bulgaria (the
“MLA Agreement” or the “Agreement”) serves to implement, as
between the United States and Bulgaria, the provisions of the
2003 Agreement on Mutual Legal Assistance between the United
States of America and the European Union (the “U.S.-EU Mutual
Legal Assistance Agreement”). Because the United States and
Bulgaria do not have a bilateral mutual legal assistance treaty
in force between them, the MLA Agreement is a partial treaty
governing only those issues regulated by the U.S.-EU Mutual
Legal Assistance Agreement. This approach is consistent to the
one taken with the other EU member states (Denmark, Finland,
Malta, Portugal, Slovak Republic, and Slovenia) with which the
United States did not have an existing bilateral mutual legal
assistance treaty.

The following is a description of the provisions of the MLA
Agreement and the accompanying Annex.

The MLA Agreement

Paragraph 1 of the Agreement specifies the articles of the
U.S.-EU Mutual Legal Assistance Agreement applicable between
the United States and Bulgaria. These provisions are set forth
in detail in the Annex to the MLA Agreement.

Paragraph 2 states that the Agreement 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.

Paragraph 3 provides that the Annex to the Agreement
reflects the provisions of the U.S.-EU Mutual Legal Assistance
Agreement that shall apply between the United States and
Bulgaria.

In accordance with Article 12 of the U.S.-EU Mutual Legal
Assistance Agreement, paragraphs 4 and 5 make the Agreement
applicable to offenses committed both before and after the date
it enters into force. In accordance with Article 12(2) of the
U.S.-EU Mutual Legal Assistance Agreement, Articles 3 and 4 of
the Annex apply to requests pending at the time the Agreement
enters into force.

Paragraph 6 sets forth provisions on the entry into force
and termination of the Agreement. The Agreement will enter into
force after an exchange of instruments between the United
States and Bulgaria indicating that they have completed their
internal procedures for entry into force and on the date of
entry into force of the U.S.-EU Mutual Legal Assistance
Agreement. Should the U.S.-EU Mutual Legal Assistance Agreement
be terminated, the Agreement will also be terminated, although
the Parties may nevertheless agree to continue to apply some or
all of its provisions.

The Annex to the MLA Agreement

Article 1 of the Annex incorporates Article 4 of the U.S.-
EU Mutual Legal Assistance Agreement (“Identification of bank
information”).

Article 1(1) requires the Requested State, upon receiving a
request, to promptly ascertain if banks located in its
territory possess information on whether a natural or legal
person suspected of or charged with a criminal offense as
designated pursuant to Article 1( 4), holds a bank account or
accounts. Subsection (b) permits, but does not obligate, the
Requested State to ascertain whether bank information exists
pertaining to convicted persons, or whether there is
information in the possession of non-bank financial
institutions, or financial transactions other than those
related to accounts.

Article 1(2) requires a request for this form of
cooperation to include, first, the identity of the natural or
legal person relevant to locating such accounts or
transactions; second, sufficient information to enable the
competent authority of the Requested State to reasonably
suspect that such person engaged in a criminal offense and that
banks or non-bank financial institutions in the Requested State
may have the information requested and to conclude that the
information sought relates to the criminal investigation or
proceeding for which assistance is sought; and, third, as much
information as possible concerning which banks or other
institutions may have the information, in order to reduce the
breadth of the inquiry.

Article 1(3) designates the U.S. channel of communication
for requests for assistance under this article as the U.S.
attache responsible for Bulgaria of the Drug Enforcement
Administration, the Bureau of Immigration and Customs
Enforcement, and the Federal Bureau of Investigation (depending
on the nature of the investigation or proceeding giving rise to
the request). For Bulgaria, the designated channel is the
Supreme Cassation Prosecutors Office during pretrial and the
Ministry of Justice during the trial. Article 1(3) also allows
the United States and the European Union to modify these
designations by exchange of diplomatic notes after the entry
into force of the Agreement.

Article 1(4) provides that the United States and Bulgaria
will provide assistance under this article with respect to
money laundering and terrorist activity punishable under the
laws of both states, and with respect to such other criminal
activity as to which they may notify each other. U.S.
negotiators verified that under Bulgarian law, assistance will
be available for a wide range of conduct associated with
terrorism (which includes the conduct criminalized in
international counter-terrorism conventions to which they are
party) and money laundering with respect to an extremely broad
range of predicate offenses.

Article 1(5) establishes that assistance may not be refused
under Article 1 on the grounds of bank secrecy.

Article 1(6) provides that the Requested State shall
respond to a request for production of the records concerning
the accounts or transactions identified pursuant to this
article in accordance with its domestic law.

Article 2 of the Annex incorporates Article 5 of the U.S.-
EU Mutual Legal Assistance Agreement (“Joint investigative
teams”).

Article 2(1) provides that joint investigative teams may be
established and operated in the respective territories of the
United States and Bulgaria, where the Parties agree to do so.

Under Article 2(2), the manner of the team’s operation
shall be agreed between the competent authorities, as
determined by the respective States concerned.

Article 2(3) describes channels of communication so as to
facilitate direct communication between law enforcement
authorities with respect to cases arising under Article 2. The
paragraph provides that the competent authorities determined by
the respective States concerned shall communicate directly for
purposes of establishing and operating such teams, except where
the complexity, scope or other circumstances involved are
deemed to require more central coordination, in which case the
States concerned may agree upon other channels of
communication. This approach facilitates speed, efficiency and
clarity by providing for direct communications in most cases
among the affected law enforcement components, rather than
through a mutual legal assistance request transmitted through a
central authority, as would otherwise generally take place.

Article 2(4) states that, where the joint investigative
team needs investigative measures to be taken in one of the
States involved in the team, a member of the team of that State
may request its own competent authorities to take those
measures without the other State having to submit a mutual
legal assistance request. The legal standard for obtaining the
measure is the applicable domestic standard. Thus, where an
investigative measure is to be carried out in the United
States, for example, a U.S. team member could do so by invoking
existing domestic investigative authority, and would share
resulting information or evidence seized pursuant to such an
action with the foreign authorities. A formal mutual legal
assistance request would not be required. In a case in which
there is no domestic U.S. jurisdiction and consequently a
compulsory measure cannot be carried out based on domestic
authority, the provisions of 28 U.S.C. Section 1782 may furnish
a separate legal basis for carrying out such a measure.

Article 3 of the Annex incorporates Article 6 of the U.S.-
EU Mutual Legal Assistance Agreement (“Video conferencing”).

Article 3(1) provides that the use of video transmission
technology shall be available between the United States and
Bulgaria for taking testimony in a proceeding for which mutual
legal assistance is available. To the extent that procedures
for video conferencing are not set forth in Article 3, the law
of the Requested State governs the procedures.

Article 3(2) provides that the costs associated with
establishing and servicing the video transmission will be borne
by the Requesting State, unless otherwise agreed. Other related
costs will be borne as agreed upon by the United States and
Bulgaria.

Article 3(3) provides for a consultation mechanism in order
to facilitate legal, technical or logistical issues that may
arise in the execution of a particular request.

Article 3(4) provides that the making of intentionally
false statements or other witness or expert misconduct shall be
punishable in the Requested State in the same manner as if such
conduct had been committed in the course of a domestic
proceeding. This is already the case where the United States
has been requested to facilitate the taking of video testimony
from a witness or expert located in the United States on behalf
of a foreign State, since the proceeding to execute the request
is a U.S. proceeding and therefore penalties under U.S. law for
perjury, obstruction of justice or contempt of court are
applicable.

Article 3(5) specifies that the availability of video
transmission technology for purposes of facilitating the taking
of testimony does not mean that other means of obtaining
testimony are no longer available.

Article 3(6) makes clear that the Requested State may also
permit the use of video conferencing technology for purposes
other than providing testimony, including for purposes of
identification of persons or objects, and taking of
investigative statements (to the extent these are not
considered to be testimony under the law of the Requesting
State).

Article 4 of the Annex incorporates Article 7 of the U.S.-
EU Mutual Legal Assistance Agreement (“Expedited transmission
of requests”). Article 4 provides that requests for mutual
legal assistance, and communications related thereto, may be
made by expedited means of communications, including fax or
email, with formal confirmation to follow where required by the
Requested State. The Requested State may respond to the request
by any such expedited means of communication.

Article 5 of the Annex incorporates Article 8 of the U.S.-
EU Mutual Legal Assistance Agreement (“Mutual legal assistance
to administrative authorities”). Article 5 provides an express
legal basis for the provision of assistance to an
administrative authority investigating conduct with a view to
criminal prosecution or referral to criminal investigation or
prosecution authorities, pursuant to its specific
administrative or regulatory authority to undertake such
investigation. If the administrative authority anticipates that
no prosecution or referral will take place, assistance is not
available. Article 5(2) provides that requests for assistance
under Article 5 shall be transmitted between the U.S.
Department of Justice and the Bulgarian Ministry of Justice or
such other authorities as may be agreed upon by the U.S.
Department of Justice and Bulgarian Ministry of Justice.

Article 6 of the Annex incorporates Article 9 of the U.S.-
EU Mutual Legal Assistance Agreement (“Limitations on use to
protect personal and other data”).

Article 6(1) permits the Requesting State to use evidence
or information it has obtained from the Requested State for its
criminal investigations and proceedings, for preventing an
immediate and serious threat to its public security, for non-
criminal judicial or administrative proceedings directly
related to its criminal investigations or proceedings, for non-
criminal judicial or administrative proceedings for which
assistance was provided under Article 5 of the Annex, and for
any other purpose if the information or evidence was made
public within the framework of the proceedings for which it was
transmitted or pursuant to the above permissible uses. Other
uses of the evidence or information require the prior consent
of the Requested State.

Article 6(2)(a) specifies that the Article does not
preclude the Requested State from imposing additional
conditions where the particular request for assistance could
not be granted in the absence of such conditions. Where such
additional conditions are imposed, the Requested State may
require the Requesting State to give information on the use
made of the evidence or information.

Article 6(2)(b) provides that generic restrictions with
respect to the legal standards of the Requesting State for
processing personal data may not be imposed by the Requested
State as a condition under paragraph 2( a) to providing
evidence or information. This provision is further elaborated
upon in the explanatory note to the U.S.-EU Mutual Legal
Assistance Agreement (regarding Article 9(2)(b) of that
Agreement), which specifies that the fact that the Requesting
and Requested States have different systems of protecting the
privacy of data does not give rise to a ground for refusal of
assistance and may not as such give rise to additional
conditions under Article 6(2)(a). Such refusal of assistance
could only arise in exceptional cases in which, upon balancing
the important interests involved in the particular case,
furnishing the specific data sought by the Requesting State
would raise difficulties so fundamental as to be considered by
the Requested State to fall within the “essential interests”
grounds for refusal contained in Article 8.

Article 6(3) provides that where, following disclosure to
the Requesting State, the Requested State becomes aware of
circumstances that may cause it to seek additional conditions
in a particular case, it may consult with the Requesting State
to determine the extent to which the evidence or information
can be protected.

Article 7 of the Annex incorporates Article 10 of the U.S.-
EU Mutual Legal Assistance Agreement (“Requesting State’s
request for confidentiality”). Article 7 requires the
Requested State, if asked, to use its best efforts to keep
confidential a request and its contents, and to inform the
Requesting State if the request cannot be executed without
breaching confidentiality.

Article 8 of the Annex incorporates Article 13 of the U.S.-
EU Mutual Legal Assistance Agreement (“Non-derogation”).
Article 8 makes clear that the provisions of the Annex do not
preclude the assertion of a ground for refusal of assistance
available to the Requested States pursuant to its applicable
legal principles, including where execution of the request
would prejudice its sovereignty, security, public order or
other essential interests, except where such ground for refusal
is precluded by Article 1(5) (bank secrecy) or 6(2)(b) (generic
restrictions relating to personal data) of the Annex.

The Department of Justice joins the Department of State in
urging approval of this Agreement by the Senate at the earliest
possible date.

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Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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