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[Senate Treaty Document 105-25]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 1st Session                                                     105-25
_______________________________________________________________________


 
  INTER-AMERICAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 
                    WITH RELATED OPTIONAL PROTOCOL

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

  INTER-AMERICAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS, 
  ADOPTED AT THE TWENTY-SECOND REGULAR SESSION OF THE ORGANIZATION OF 
AMERICAN STATES (OAS) GENERAL ASSEMBLY MEETING IN NASSAU, THE BAHAMAS, 
    ON MAY 23, 1992, AND THE OPTIONAL PROTOCOL RELATED TO THE INTER-
 AMERICAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS, ADOPTED 
AT THE TWENTY-THIRD REGULAR SESSION OF THE OAS GENERAL ASSEMBLY MEETING 
  IN MANAGUA, NICARAGUA, ON JUNE 11, 1993. BOTH INSTRUMENTS SIGNED ON 
   BEHALF OF THE UNITED STATES AT OAS HEADQUARTERS IN WASHINGTON ON 
                            JANUARY 10, 1995





 September 3, 1997.--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 3, 1997.
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 Inter-American 
Convention on Mutual Assistance in Criminal Matters (``the 
Convention''), adopted at the twenty-second regular session of 
the Organization of American States (OAS) General Assembly 
meeting in Nassau, The Bahamas, on May 23, 1992, and the 
Optional Protocol Related to the Inter-American Convention on 
Mutual Assistance in Criminal Matters (``the Protocol''), 
adopted at the twenty-third regular session of the OAS General 
Assembly meeting in Managua, Nicaragua, on June 11, 1993. Both 
of these instruments were signed on behalf of the United States 
at the OAS headquarters in Washington on January 10, 1995. In 
addition, for the information of the Senate, I transmit the 
report of the Department of State with respect to the 
Convention and the Protocol.
    When ratified, the Convention and the Protocol will 
constitute the first multilateral convention between the United 
States and other members of the OAS in the field of 
international judicial cooperation in criminal matters. The 
provisions of the Convention and Protocol are explained in the 
report of the Department of State that accompanies this 
message.
    The Convention and Protocol will establish a treaty-based 
system of judicial assistance in criminal matters analogous to 
that which exists bilaterally between the United States and a 
number of countries. These instruments should prove to be 
effective tools to assist in the prosecution of a wide variety 
of modern criminals, including members of drug cartels, 
``white-collar'' criminals, and terrorists. The Convention and 
Protocol are self-executing, and will not require implementing 
legislation.
    The Convention provides for a broad range of cooperation in 
criminal matters. Mutual assistance available under the 
Convention includes: (1) taking testimony or statements of 
persons; (2) providing documents, records, and articles of 
evidence; (3) serving documents; (4) locating or identifying 
persons or items; (5) transferring persons in custody for 
testimony or other purposes; (6) executing requests for 
searches and seizures; (7) assisting in forfeiture proceedings; 
and (8) rendering any other form of assistance not prohibited 
by the laws of the Requested State.
    The Protocol was negotiated and adopted at the insistence 
of the United States Government, and will permit a greater 
measure of cooperation in connection with tax offenses. I 
believe that the Convention should not be ratified by the 
United States without the Protocol. If the Convention and 
Protocol are ratified, the instruments of ratification would be 
deposited simultaneously.
    One significant advantage of this Convention and Protocol 
is that they provide uniform procedures and rules for 
cooperation in criminal matters by all the states that become 
Party. In addition, the Convention and Protocol would obviate 
the expenditure of resources that would be required for the 
United States to negotiate and bring into force bilateral 
mutual assistance treaties with certain OAS member states.
    I recommend that the Senate give early and favorable 
consideration to the Convention and the Protocol, and that it 
give its advice and consent to ratification, subject to the 
understandings described in the accompanying report of the 
Department of State.

                                                William J. Clinton.


                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                         Washington, June 18, 1997.
The President,
The White House.
    The President: I have the honor to submit to you, with a 
view to transmittal to the Senate for its advice and consent to 
ratification, the Inter-American Convention on Mutual 
Assistance in Criminal Matters (``the Convention''), and the 
Optional Protocol Related to the Inter-American Convention on 
Mutual Assistance in Criminal Matters (``the Protocol''). The 
Convention was adopted and opened for signature at the twenty-
second regular session of the General Assembly meeting of the 
Organization of American States (OAS) in Nassau, The Bahamas in 
May 1992. The Protocol was adopted and opened for signature at 
the twenty-third regular session of the OAS General Assembly 
meeting in Managua, Nicaragua in June 1993. Both the Convention 
and the Protocol were signed by the United States on January 
10, 1995 at the OAS headquarters in Washington. I recommend 
that both the Convention and Protocol be transmitted to the 
Senate for its advice and consent to ratification.
    To date, ten states have signed the Convention (Brazil, 
Canada, Ecuador, Grenada, Nicaragua, Peru, Suriname, the United 
States, Uruguay and Venezuela). Three states (Venezuela, Peru, 
and Canada) have ratified, and the Convention entered into 
force on April 14, 1996. However, only three states (the United 
States, Brazil, and Ecuador) have signed the protocol, and none 
has ratified it. Thus, the Protocol is not yet in force.
    The Convention and Protocol establish a treaty-based system 
of mutual assistance among the OAS member states in criminal 
matters, analogous to that which exists pursuant to bilateral 
mutual legal assistance treaties between the United States and 
a number of countries. This Convention contains many provisions 
similar to those in our bilateral treaties. It will enhance our 
ability to investigate and prosecute a variety of offenses, 
including violent crimes, drug trafficking, fraud and while-
collar crimes. The Convention is designed to be self-executing 
and will not require implementing legislation.
    The United States declined initially to sign the Convention 
because, among other reasons, it limited assistance in cases 
involving tax offenses. The United States therefore proposed 
the draft of the Protocol to the Convention for consideration 
at the twenty-third regular session of the OAS General 
Assembly, which met in Managua, Nicaragua in 1993. The text of 
the Protocol that was adopted during that session is generally 
based on the draft that was proposed by the United States. The 
relevant U.S. Government agencies believe the Convention should 
not be ratified by the United States without the Protocol. If 
both are ratified, the instruments of ratification would be 
submitted simultaneously.
    The Convention consists of forty articles. Chapter I 
(Articles 1-9) contains the Convention's general provisions. 
Article 1 states the purpose of the Convention, which is for 
the Parties to render to one another mutual assistance in 
criminal matters, in accordance with the provisions of the 
Convention.
    Article 2 defines the scope and application of the 
Convention. Specifically, the Parties are obligated to render 
to one another mutual assistance in investigations, 
prosecutions, and proceedings that pertain to crimes over which 
the Requesting State has jurisdiction at the time the 
assistance is requested. In addition, this Article expressly 
states that the Convention does not authorize any Party to 
undertake, in the territory of another Party, the exercise of 
jurisdiction or the performance of functions that are placed 
within the exclusive purview of the authorities of that other 
Party by its domestic law. Finally, Article 2 stipulates that 
the Convention's provisions do not create any right on the part 
of any private person to obtain or exclude any evidence or to 
impede execution of any request for assistance.
    Article 3 provides that each state will designate a central 
authority that shall be responsible for issuing and receiving 
requests for assistance. For the UnitedStates, the central 
authority would be the Attorney General, or such person or persons as 
the Attorney General may designate. The central authorities shall 
communicate directly with one another for purposes of implementation of 
the Convention.
    Article 4 specifies that, in light of the diversity of 
legal systems of the Parties, assistance under the Convention 
shall be based on requests for cooperation that emanate from 
those authorities in the Requesting State that are responsible 
for criminal investigation or prosecution.
    Article 5 states that assistance under the Convention shall 
generally not be subject to a ``dual criminality'' requirement; 
that is, assistance shall be rendered even if the act that 
gives rise to it is not punishable under the legislation of the 
Requested State. However, the Article authorizes the Requested 
State to refuse assistance on grounds of lack of dual 
criminality when the request pertains to either of two 
measures: (a) immobilization and sequestration of property; and 
(b) searches and seizures (including house searches). Although 
the United States generally prefers to avoid the inclusion of 
dual criminality requirements in its mutual legal assistance 
treaties, the above-cited exceptions in Article 5 will confer 
on the United States the discretion to decline to provide 
assistance in connection with certain measures that under U.S. 
law are subject to constitutional limitations, in cases where 
the criminal laws of the Requesting State proscribe conduct 
that is not punishable under United States law.
    Article 6 provides that the act that gives rise to the 
request must be punishable by one year or more of imprisonment 
in the Requesting State.
    Article 7 contains a non-exhaustive list of the major types 
of assistance to be provided under the Convention, including 
notification of rulings and judgments; taking of testimony or 
statements from persons; summoning of witnesses and expert 
witnesses to provide testimony; immobilization and 
sequestration of property, freezing of assets, and assistance 
in procedures related to seizures; searches or seizures; 
examinations of objects and places; service of judicial 
documents; transmittal of documents, reports, information, and 
evidence; and transfer of detained persons for the purposes of 
the Convention. The Article provides that any other procedure 
may also be covered by the Convention upon agreement between 
the Requesting State and the Requested State.
    Article 8 states that the Convention shall not apply to 
crimes that are subject exclusively to military legislation.
    Article 9 sets forth the grounds upon which the Requested 
State may refuse assistance. Specifically, the Requested State 
may decline assistance if it determines that the request is 
being used to prosecute a person on a charge with respect to 
which the person has already been sentenced or acquitted in a 
trail in the Requesting or Requested State. Assistance may also 
be refused if the investigation has been initiated for the 
purpose of prosecuting, punishing, or discriminating in any way 
against an individual or group of persons for reason of sex, 
race, social status, nationality, religion, or ideology. In 
addition, a request may be denied if it refers to a crime that 
is political or related to a political crime, or to a common 
crime prosecuted for political reasons. Article 9 also gives 
the Requested State the discretion to deny assistance if the 
request has been issued at the request of a special or ad hoc 
tribunal; or if public policy (order public), sovereignty, 
security or basic public interests would be prejudiced.
    Article 9 provides, finally, that a request may be denied 
if it pertains to a tax crime. However, Article 9 stipulates 
that assistance in connection with tax crimes shall be granted 
if the offense is committed by way of an intentionally 
incorrect statement, whether oral or written, or by way of an 
intentional failure to declare income derived from any other 
offense covered by the Convention for the purpose of concealing 
such income. In addition, cooperation with respect to tax 
offenses is subject to the terms of the Protocol for those 
states that are Parties to that instrument.
    Chapter II (Articles 10-16) describes procedures for the 
filing, processing and execution of requests for assistance. 
Article 10 provides that requests shall be made in writing and 
executed in accordance with the domestic law of the Requested 
State.
    Article 11 permits the Requested State to postpone 
execution of any request if doing so is necessary to continue 
an investigation or proceeding in progress in the Requested 
State. In such cases, the Requested State must provide an 
explanation of its grounds for postponing execution of the 
request.
    Article 12 stipulates that documents and objects delivered 
in compliance with a request for assistance shall be returned 
to the Requested State as soon as possible, unless the latter 
decides otherwise.
    Article 13 provides that the Requested State shall execute 
requests for search, seizure, attachment, and surrender of any 
items, documents, records, or effects, if the competent 
authority determines that the request contains information that 
justifies the proposed action. Such action is subject to the 
procedural and substantive law of the Requested State. 
Furthermore, the Article provides that the Requested State 
shall determine, according to its law, what requirements must 
be met to protect the interests held by third parties in the 
items that are to be transferred.
    Article 14 authorizes the central authority of any Party to 
convey to its counterparts in other Parties information it has 
on the existence of proceeds, fruits, or instrumentalities of a 
crime in the territory of those Parties.
    Article 15 requires the Parties to assist each other, to 
the extent permitted by their respective laws, in precautionary 
measures and measures for securing the proceeds, fruits, and 
instrumentalities of the crime.
    Article 16 provides that the Requested State shall set the 
date and place for execution of the request for assistance and 
may so inform the Requesting State. The Article also authorizes 
officials and interested parties of the Requesting State or 
their representatives, after informing the central authority of 
the Requested State, to be present at and participate in the 
execution of the request for assistance, to the extent 
permissible under the law of the Requested State's authorities.
    Chapter III (Articles 17-23) addresses the subjects of 
service of judicial decisions, judgments and verdicts, and the 
appearance of witnesses and expert witnesses. Article 17 
provides that, at the request of the Requesting State, the 
Requested State shall serve notice of decisions, judgments, or 
other documents issued by the competent authorities of the 
Requesting State.
    Article 18 directs that, at the request of the Requesting 
State, any person present in the Requested State may be 
summoned to appear before a competent authority, in accordance 
with the law of the Requested State, to give testimony or to 
provide documents, records, or evidence.
    Article 19 states that, when the Requesting State requests 
that a person appear in its territory to give testimony or a 
report, the Requested State shall invite the witness or expert 
witness to appear voluntarily, without the use of threats or 
coercive measures, before the appropriate authority in the 
Requesting State.
    Article 20 addresses the subject of transfers of persons 
subject to criminal proceedings. The Article authorizes 
temporary transfers to the Requesting State, for the purpose of 
assistance under the Convention, of persons subject to criminal 
proceedings in the Requested State, but only if the person and 
the Requested State consent. The article also authorizes 
transfers to the Requested State of persons subject to criminal 
proceedings in the Requesting State, but only if the person and 
both states consent.
    The Article enunciates grounds for denial of a request for 
transfer, including instances in which the individual in 
custody refuses to consent to the transfer; when the person's 
presence is necessary in an investigation or criminal 
proceeding that is under way in the jurisdiction to which he is 
subject at the time; and when there are other considerations, 
whether legal or of another nature, as determined by the 
competent authority of the Requested or Requesting State.
    Article 20 also stipulates that the receiving state shall 
have the obligation to keep the transferred person in physical 
custody; that it shall return the transferred person to the 
sending state as soon as possible or as agreed by the central 
authorities of the two states; and that the sending state shall 
not be required to initiate extradition proceedings for the 
return of the transferred person. In addition, the transferred 
person shall receive credit toward service of the sentence 
imposed in the sending state for time served in the receiving 
state; and the length of time spent by the person in the 
receiving state shall not exceed the period remaining for 
service of the sentence or 60 days, whichever is less, unless 
the person and both states agree to an extension of time.
    Article 21 obligates the Parties to render cooperation, to 
the extent possible, for travel through their territory of the 
persons mentioned in Article 20, provided that the central 
authorities of the transit state are given due advance notice 
and that such persons travel in the custody of agents of the 
Requesting State (except where air transportation is used and 
no landing is scheduled in the territory of the Party to be 
overflown).
    Article 22 requires, upon request of the person being 
transferred from the sending state, that the receiving state 
grant safe-conduct to the person. This means that the person 
shall not be detained or prosecuted for offenses committed 
prior to the transfer; be required to make a statement or give 
testimony in proceedings not specified in the request; or be 
detained or prosecuted on the basis of any statement he makes, 
except in case of contempt of court or perjury.
    Article 23 provides that, in connection with witnesses or 
expert witnesses, documents containing the relevant questions, 
interrogatories, or questionnaires shall be forwarded to the 
extent possible or necessary.
    Chapter IV (Articles 24-25) addresses the issue of 
transmittal of information and records. Article 24 provides 
that, upon request, the Requested State shall make available to 
the Requesting State a copy of the public documents, records, 
or information held by the government agencies or departments 
of the Requested State. In addition, the Requested State may 
make available such government information and records that are 
not public, but only to the same extent as it would make such 
available to its own judicial authorities or to others 
responsible for application of the law.
    Article 25 prohibits the Requesting State from disclosing 
or using any information or evidence obtained in the course of 
application of the Convention for purposes other than those 
specified in the request for assistance, unless consent is 
obtained from the central authority of the Requested State. To 
ensure that the Convention is implemented consistent with 
existing U.S. legislation, I recommend that the following 
understanding to Article 25 be included in the United States 
instrument of ratification:

          The United States understands that Article 25 of the 
        Convention, which limits disclosure or use of 
        information or evidence obtained under the Convention, 
        shall no longer apply if such information or evidence 
        is made public, in a manner consistent with Article 25, 
        in the course of proceedings in the Requesting State.

Article 25 further provides that, when necessary, the Requested 
State may ask that the information or evidence provided remain 
confidential according to conditions specified by the central 
authority.
    Chapter V (Articles 26-31) sets forth the procedures that 
govern the presentation and processing of requests. Article 26 
specifies the information that requests for assistance must 
contain, including a statement of the crime to which the 
procedure refers; a summary of the relevant facts; the nature 
of the proceeding giving rise to the request for assistance; a 
precise description of the assistance requested and any 
information necessary for the fulfillment of such request; and, 
where pertinent, a description of any proceeding or other 
special requirement of the Requesting State.
    Article 26 also provides that when the Requested State is 
unable to comply with a request, it must return the request to 
the Requesting State with an explanation of the reasons 
therefor. The Requested State may request additional 
information when necessary for fulfillment of the request under 
its domestic law or to facilitate such fulfillment.
    Article 27 eliminates any requirement for certification or 
authentication of documents, so long as the documents are 
processed through the central authorities in accordance with 
the Convention.
    Article 28 requires that requests for assistance and their 
accompanying documentation be translated into an official 
language of the Requested State.
    Article 29 renders the Requested State responsible for all 
regular costs of executing a request in its territory, except 
for fees for expert witnesses, travel costs, and other expenses 
related to the transportation of persons from the territory of 
the state to that of the other, which shall be borne by the 
Requesting State.
    Article 30 permits the Parties to exchange information on 
matters related to the application of the Convention, for the 
purpose of furthering the treaty's implementation.
    Article 31 directs that the domestic law of each Party 
shall govern liability for damages arising from the acts of its 
authorities in the execution of the Convention. The Article 
also exempts the Parties from liability for damages that may 
arise from the acts committed by the authorities of another 
Party in the formulation or execution of a request under the 
Convention.
    Chapter VI (Articles 32-40) sets forth the final clauses. 
Article 32 provides that the Convention shall be open for 
signature by the member states of the Organization of American 
States.
    Article 33 renders the Convention subject to ratification, 
and requires that instruments of ratification be deposited with 
the General Secretariat of the Organization of American States.
    Article 34 opens the Convention to accession by any other 
state, and requires that instruments of accession be deposited 
with the OAS General Secretariat.
    Article 35 permits each state to make reservations to the 
Convention at the time of signature, approval, ratification, or 
accession, provided that each reservation concerns at least one 
specific provision and is not incompatible with the object and 
purpose of the Convention.
    Article 36 provides that the Convention shall not be 
interpreted as affecting or restricting obligations in effect 
under any other bilateral or multilateral convention, or 
provisions therein, relating to international criminal judicial 
assistance, or more favorable practices that those states may 
observe in the matter. The United States wishes to ensure that 
morefavorable provisions in bilateral treaties not be 
prejudiced by the OAS MLAT, and that accession to this Convention not 
be interpreted as indicative of the United States Government's 
willingness to include identical provisions in future bilateral 
treaties. For these reasons, the United States made a statement at the 
OAS General Assembly in Nassau, The Bahamas, in 1992, emphasizing the 
provisions of this Article. In order to stress this point formally, I 
recommend that the following understanding be included in the United 
States instrument of ratification of both the Convention and the 
Protocol:

          The United States understands that the Convention and 
        Optional Protocol are not intended to replace, 
        supersede, obviate or otherwise interfere with any 
        other bilateral or multilateral treaties or 
        conventions, including those that relate to mutual 
        assistance in criminal matters.

    Article 37 states that the Convention shall enter into 
force on the thirtieth day following the date of deposit of the 
second instrument of ratification. For each state that ratifies 
or accedes to the Convention after the deposit of the second 
instrument of ratification, the Convention shall enter into 
force on the thirtieth day after deposit by such state of its 
instrument of ratification or accession.
    Article 38 provides that if a Party has two or more 
territorial units in which different systems of law govern 
matters addressed in the Convention, it shall state at the time 
of signature, ratification, or accession whether the Convention 
shall apply to all of its territorial units or only to one or 
more of them.
    Article 39 sets forth the termination clause of the 
Convention. It states that the Convention shall remain in force 
indefinitely, but that any Party may denounce or terminate it. 
The instrument of denunciation must be deposited with the OAS 
General Secretariat. The Convention shall cease to be in force 
for the denouncing state one year from the date of deposit of 
the instrument of denunciation.
    Article 40 provides that the English, French, Spanish and 
Portuguese texts of the Convention are equally authentic, and 
that the original instruments in each of those languages shall 
be deposited with the OAS General Secretariat, which shall 
forward authenticated copies of the text of the United Nations 
General Secretariat for registration and publication. Finally, 
this Article indicates that the OAS General Secretariat shall 
notify the OAS member states, as well as those states that have 
acceded to the Convention, of the signatures and deposits of 
instruments of ratification, accession, and denunciation, and 
of reservations, if any, as well as the statements specified in 
Article 38 of the Convention.
    The Protocol consists of five Articles. The first Article 
provides that Parties to the Protocol shall not exercise the 
right contemplated in Article 9.f of the Convention to refuse a 
request for assistance from anotherParty to the Protocol solely 
on the ground that the request concerns a tax crime.
    Article 2 provides that, when acting as a Requested State 
under the Convention, Parties to the Protocol shall not decline 
assistance that requires the measures referred to in Article 5 
of the Convention, if the act specified in the request 
corresponds to a tax crime of the same nature under the laws of 
the Requested State.
    Articles 3, 4, and 5 contain the final clauses. Article 3 
articulates which states can become Parties or accede to the 
Convention, and imposes requirements regarding the deposit of 
instruments of ratification or accession. This Article also 
specifies conditions for the filing of reservations, and 
includes a paragraph stating that the Protocol shall not be 
interpreted as affecting or restricting obligations under other 
treaties or practices with respect to international criminal 
assistance. As mentioned above in connection with Article 36 of 
the Convention, I recommend that the following understanding be 
included in the United States instrument of ratification of 
both the Convention and the Protocol:

          The United States understands that the Convention and 
        Optional Protocol are not intended to replace, 
        supersede, obviate or otherwise interfere with any 
        other bilateral or multilateral treaties or 
        conventions, including those that relate to mutual 
        assistance in criminal matters.

Finally, Article 3 sets forth provisions regarding entry into 
force of the Protocol, and requiring statements by countries 
with two or more territorial units on the application of the 
Protocol to such units.
    Article 4 provides that the Protocol shall remain in force 
as long as the Convention does, but that any of the Parties may 
denounce it. The instrument of denunciation must be deposited 
with the OAS General Secretariat, and the Protocol would cease 
to be in effect for the denouncing state one year from the date 
of such deposit.
    Article 5 requires that the original text of the Protocol 
in the four OAS languages be deposited with the OAS General 
Secretariat, and that the latter forward authenticated copies 
of the text to the United Nations Secretariat for registration. 
Finally, Article 5 directs the OAS General Secretariat to 
notify the OAS member states and acceding states of the 
signatures and deposits of instruments of ratification, 
accession, and denunciation, as well as reservations, if any, 
and the statements specified in Article 3.
    It is my belief that this Convention and the Protocol would 
afford substantial benefits to the United States, and would be 
fully consistent with existing United States legislation.
    A Technical Analysis explaining in detail the provisions of 
the Convention and the Protocol was prepared by the United 
States negotiating delegation and will be transmitted 
separately to the Senate Committee on Foreign Relations.
    The Departments of Justice and Treasury join the Department 
of State in recommending that the Convention and the Protocol 
be transmitted to the Senate at an early date for its advice 
and consent to ratification, subject to the understandings 
described above.
    Respectfully submitted,
                                                Madeleine Albright.