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[Senate Treaty Document 104-18]
[From the U.S. Government Publishing Office]



   104th Congress 1st            SENATE              Treaty Doc.
         Session
                                                        104-18
_______________________________________________________________________



 
TREATY WITH THE PHILIPPINES ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND 
   THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES ON MUTUAL LEGAL 
 ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT MANILA ON NOVEMBER 13, 1994




 September 5, 1995.--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, September 5, 1995.
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 Treaty Between 
the Government of the United States of America and the 
Government of the Republic of the Philippines on Mutual Legal 
Assistance in Criminal Matters, signed at Manila on November 
13, 1994. I transmit also, for the information of the Senate, 
the report to the Department of State with respect to the 
Treaty.
    The Treaty is one of a series of modern mutual legal 
assistance treaties being negotiated by the United States in 
order to counter criminal activity more effectively. The Treaty 
will enhance our ability to investigate and prosecute a wide 
variety of crimes, including drug trafficking and terrorism 
offenses. The Treaty is self-executing.
    The Treaty provides for a broad range of cooperation in 
criminal matters. Mutual assistance available under the Treaty 
includes: taking of testimony or statements of persons; 
providing documents, records, and items of evidence; serving 
documents; locating or identifying persons or items; 
transferring persons in custody for testimony or other 
purposes; executing requests for searches and seizures; 
assisting in proceedings related to forfeiture of assets, 
restitution, and collection of fines; and any other form of 
assistance not prohibited by the laws of the Requested States.
    I recommend that the Senate give early and favorable 
consideration to the Treaty and give its advice and consent to 
ratification.

                                                William J. Clinton.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                        Washington, August 2, 1995.
The President,
The White House.
    I have the honor to submit to you the Treaty Between the 
Government of the United States of America and the Government 
of the Republic of the Philippines on Mutual Legal Assistance 
in Criminal Matters (the ``Treaty''), signed at Manila on 
November 13, 1994. I recommend that the Treaty be transmitted 
to the Senate for its advice and consent to ratification.
    The Treaty covers mutual legal assistance in criminal 
matters. In recent years, similar bilateral treaties have 
entered into force with Argentina, the Bahamas, Canada, Italy, 
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland, 
Thailand, Turkey, the United Kingdom (concerning the Cayman 
Islands), and Uruguay. Other similar treaties with Belgium, 
Colombia, and Panama have been signed by the United States and 
have received Senate advice and consent (but have not yet 
entered into force). In addition, treaties with the United 
Kingdom, South Korea, and Nigeria have been transmitted to the 
Senate, where they await Senate consideration. The Treaty with 
the Philippines contains many provisions similar to those in 
other recent treaties. It will enhance our ability to 
investigate and prosecute a variety of offenses, including drug 
trafficking and terrorism offenses of particular interest to 
the U.S. law enforcement community. The Treaty is designed to 
be self-executing and will not require implementing 
legislation.
    Article 1 sets forth a non-exhaustive list of the major 
types of assistance provided under the Treaty, including taking 
the testimony or statements of persons; providing documents, 
records and items of evidence; serving documents; locating or 
identifying persons or items; transferring persons in custody 
for testimony or other purposes; executing requests for 
searches and seizures; assisting in proceedings related to 
forfeiture of assets, restitution, and collection of fines; and 
rendering any other form of assistance not prohibited by the 
laws of the Requested State. The scope of the Treaty includes 
not only criminal offenses, but also proceedings related to 
criminal matters, which may be civil or administrative in 
nature.
    Article 1 states that assistance shall be provided without 
regard to whether the conduct involved would constitute an 
offense under the laws of the Requested State. This paragraph 
is important because United States and Philippine criminal law 
differ significantly and a requirement of dual criminality 
(which is a standard aspect of extradition treaties but which 
we prefer not to include in mutual legal assistance treaties) 
would have limited the areas in which assistance is available.
    Article 1 states explicitly that it is not intended to 
create rights in private parties to obtain, suppress, or 
exclude any evidence, or to impede the execution of a request.
    Article 2 provides for the establishment of Central 
Authorities and defines Central Authorities for purposes of the 
Treaty. For the United States, Central Authority is the 
Attorney General or a person designated by the Attorney 
General. For the Republic of the Philippines, the Central 
Authority is the Secretary of Justice or a person designated by 
the Secretary of Justice. The article provides that the Central 
Authorities shall communicate directly with one another, or 
through diplomatic channels, for the purposes of the Treaty.
    Article 3 sets forth the limited circumstances under which 
a Requested State's Central Authority may deny assistance under 
the Treaty. A request may be denied if it relates to a 
political offense or to a military offense that would not be a 
crime under ordinary criminal law. In addition, a request may 
be denied if its execution would prejudice the security or 
similar essential interests of the Requested State, or if it is 
not made in conformity with the Treaty.
    Before denying assistance under Article 3, the Central 
Authority of the Requested State is required to consult with 
its counterpart in 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 is required to comply with the 
conditions. If the Central Authority of the Requested State 
denies assistance, it is required to inform the Central 
Authority of the Requesting State of the reasons for the 
denial.
    Article 4 prescribes the form and content of written 
requests under the Treaty, specifying in detail the information 
required in each request. The article permits other forms of 
request in emergency situations but requires written 
confirmation within ten days thereafter unless the Central 
Authority of the Requested State agrees otherwise. All requests 
and supporting documents are to be submitted in English unless 
otherwise agreed.
    Article 5 requires the Central Authority of the Requested 
State to execute the request promptly or to transmit it to the 
authority having jurisdiction to do so. It provides that the 
competent authorities of the Requested State shall do 
everything in their power to execute a request, and that courts 
or other competent authorities of the Requested State shall 
have authority to issue subpoenas or other orders necessary to 
execute the request. The Central Authority of the Requested 
State must make all arrangements for and meet the costs of 
representation of the Requesting State in any proceedings 
arising out of an assistance request.
    Requests are to be executed in accordance with the laws of 
the Requested State except to the extent that the Treaty 
provides otherwise. However, the method of execution specified 
in the request is to be followed except insofar as it is 
prohibited by the laws of the Requested State. If the Central 
Authority of the Requested State determines that execution of 
the request would interfere with an ongoing investigation, 
prosecution, or proceeding, it may postpone execution or, after 
consulting with the Central Authority of the Requesting State, 
impose conditions on execution. If the Requesting State accepts 
assistance subject to conditions, it shall comply with them.
    Article 5 further requires the Requested State, if asked to 
do so, to use its best efforts to keep confidential a request 
and its contents, and to inform the Requesting State's Central 
Authority if the request cannot be executed without breaching 
confidentiality. This provides the Requesting State an 
opportunity to decide whether to pursue the request or to 
withdraw it in order to maintain confidentiality.
    The article requires the Requested State's Central 
Authority to respond to reasonable inquiries by the Requesting 
State's Central Authority regarding the status of the execution 
of a particular request; to report promptly to the Requesting 
State's Central Authority the outcome of its execution; and, if 
the request is denied, to inform the Requesting State's Central 
Authority in writing of the reasons for the denial.
    Article 6 apportions between the two States the costs 
incurred in executing a request. It provides that the Requested 
State shall pay all costs, except for the following items to be 
paid by the Requesting State: fees of expert witnesses, costs 
of translation, interpretation, and transcription, and 
allowances and expenses related to travel of persons pursuant 
to Articles 10 and 11.
    Article 7 requires the Requesting State to comply with any 
request by the Central Authority of the Requested State that 
information or evidence obtained under the Treaty not be used 
for proceedings other than those described in the request 
without its prior consent. Further, if the Requested State's 
Central Authority asks that information or evidence furnished 
be kept confidential or be used in accordance with specified 
conditions, the Requesting State must use its best efforts to 
comply with the conditions. Once information is made public in 
the Requesting State in accordance with either of these 
provisions, no further limitations on use apply. Nothing in the 
article prevents the use or disclosure of information to the 
extent that there is an obligation to do so under the 
Constitution of the Requesting State in a criminal prosecution. 
The Requesting State is obliged to notify the Requested State 
in advance of any such proposed use or disclosure.
    Article 8 provides that a person in the Requested State 
from whom evidence is requested pursuant to the Treaty shall be 
compelled, if necessary, to appear and testify or produce 
evidence. The article requires the Central Authority of the 
Requested State, upon request, to furnish information in 
advance about the date and place of the taking of testimony or 
evidence.
    Article 8 requires the Requested State to permit the 
presence of persons specified in the request (such as the 
accused, counsel for the accused, or other interested persons) 
and, to the extent allowed by its laws, to permit them to 
question the person giving the testimony or evidence. In the 
event that a person whose testimony or evidence is being taken 
asserts a claim of immunity, incapacity, or privilege under the 
laws of the Requesting State, Article 8 provides that the 
testimony or evidence shall be taken and the claim made known 
to the Central Authority of the Requesting State for resolution 
by its authorities.
    Finally, in order to ensure admissibility in evidence in 
the Requesting State, Article 8 provides a mechanism for 
authenticating evidence that is produced pursuant to or that is 
the subject of testimony taken in the Requested State.
    Article 9 requires that the Requested State provide the 
Requesting State with copies of publicly available records in 
the possession of government departments or agencies. The 
Requested State may further provide copies of records or 
information in the possession of a government department or 
agency, but not publicly available, to the extent and under the 
same conditions as it would provide them to its own law 
enforcement or judicial authorities. The Requested State has 
the discretion to deny such requests entirely or in part. 
Article 9 also provides that no further authentication shall be 
necessary for admissibility into evidence in the Requesting 
State of official records where the official in charge of 
maintaining them authenticates the records through the use of 
Form B appended to this Treaty.
    Article 10 provides a mechanism for the Requesting State to 
invite the voluntary appearance in its territory of a person 
located in the Requested State. The Requesting State shall 
indicate the extent to which the expenses will be paid.
    The Central Authority of the Requesting State has 
discretion to determine that a person appearing in the 
Requesting State 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 his 
departure from the Requested State. Any safe conduct provided 
for by this article ceases 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 if the person has left the Requesting 
State and voluntarily returned to it. An extension of up to 
fifteen days for good cause may be granted by the Requesting 
State's Central Authority in its discretion.
    Article 11 provides for transfer of a person in custody in 
the Requested State to the Requesting State for purposes of 
assistance under the Treaty (for example, a witness 
incarcerated in the Requested State may be transferred to the 
Requesting State to have his deposition taken in the presence 
of the defendant), provided that the person in question and the 
Central Authority of the Requested State agree. The article 
also provides for voluntary transfer of a person in the custody 
of the Requesting State to the Requested State for purposes of 
assistance under the Treaty (for example, a defendant in the 
Requesting State may be transferred for purposes of attending a 
witness deposition in the Requested State), if the person 
consents and if the Central Authorities of both States agree.
    Article 11 establishes both the express authority and the 
obligation of the receiving State to maintain the person 
transferred in custody unless otherwise authorized by the 
sending State. The return of the person transferred is subject 
to terms and conditions agreed to by the Central Authorities, 
and the sending State is not required to initiate extradition 
proceedings for return of the person transferred. The person 
transferred receives credit for time served in the custody of 
the receiving State.
    Article 12 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items specified in a request.
    Article 13 obligates the Requested State to use its best 
efforts to effect service of any document relating, in whole or 
in part, to a request under the Treaty. A request for the 
service of a document requiring a person to appear in the 
Requesting State must be transmitted a reasonable time before 
the scheduled appearance. Proof of service is to be provided in 
the manner specified in the request.
    Article 14 obligates the Requested State to execute 
requests for search, seizure, and delivery of any item to the 
Requesting State if the request includes the information 
justifying such action under the laws of the Requested State. 
It provides that, upon request, every official who has custody 
of a seized item is required to certify, through the use of 
Form C, the continuity of custody, the identity of the item, 
and the integrity of its condition. No further certification is 
required. The certificate is admissible in evidence in the 
Requesting State. The article further provides that the Central 
Authority of the Requested State may impose terms and 
conditions deemed necessary to protect third party interests in 
items to be transferred.
    Article 15 requires the Requesting State's Central 
Authority, upon request of the Requested State's Central 
Authority, to return documents, records, or items obtained in 
the execution of a request as soon as possible or, if agreed by 
the Central Authorities, to dispose of such documents, records, 
or items in a mutually acceptable manner.
    Article 16 provides that, if the Central Authority of one 
Contracting Party becomes aware of proceeds or 
instrumentalities of offenses that are located in the other 
Contracting Party and may be forfeitable or otherwise subject 
to seizure, it may so inform the Central Authority of that 
other Party. If the party receiving such information has 
jurisdiction, it may present this information to its 
authorities for a determination whether any action is 
appropriate. The Central Authority of the Party receiving such 
information is required to inform the Central Authority that 
provided the information of any action taken.
    Article 16 also obligates the Contracting Parties to assist 
each other to the extent permitted by their respective laws in 
proceedings relating to forfeiture of proceeds and 
instrumentalities of offenses, restitution to victims of crime, 
and collection of fines imposed as sentences in criminal 
prosecutions. The Party having custody over proceeds or 
instrumentalities of offenses is required to dispose of them in 
accordance with its laws. Either Party may share forfeited 
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 17 states that assistance and procedures provided 
in the Treaty shall not prevent either Contracting Party from 
granting assistance through the provisions of other applicable 
international agreements or through the provisions of its 
national laws.
    Article 18 provides that the Central Authorities shall 
consult, at times mutually agreed, to promote the most 
effective use of the Treaty, and may agree upon such practical 
measures as may be necessary to facilitate Treaty 
implementation.
    Article 19 provides that the Treaty shall apply to any 
request presented after the date of its entry into force 
regardless of whether the relevant acts or omissions occurred 
prior to that date.
    Article 20 provides that the Treaty shall be subject to 
ratification, instruments of ratification shall be exchanged in 
Manila as soon as possible, and the Treaty shall enter into 
force upon the exchange of the instruments of ratification. 
Article 20 further provides that either Party may terminate the 
Treaty by six months' written notice of the other Party.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegation, consisting of representatives from the Departments 
of Justice and State, and will be transmitted separately to the 
Senate Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate as soon as 
possible.
            Respectfully submitted,
                                                     Peter Tarnoff.