Treaty with South Africa on Mutual Legal Assistance in Criminal MattersSenate Consideration of Treaty Document 106-36
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[Senate Treaty Document 106-36] [From the U.S. Government Publishing Office] 106th Congress Treaty Doc. SENATE 2d Session 106-36 _______________________________________________________________________ TREATY WITH SOUTH AFRICA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON SEPTEMBER 16, 1999 July 13, 2000.--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 __________ U.S. GOVERNMENT PRINTING OFFICE 79-118 (STAR PRINT) WASHINGTON : 2000 LETTER OF TRANSMITTAL ---------- The White House, July 13, 2000. 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 South Africa on Mutual Legal Assistance in Criminal Matters, signed at Washington on September 16, 1999. I transmit also, for the information of the Senate, the report of 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 activities more effectively. Together with the Extradition Treaty Between the Government of the United States of America and the Government of the Republic of South Africa, also signed September 16, 1999, this Treaty will, upon entry into force, provide an effective tool to assist in the prosecution of a wide variety of offenses, including terrorism, organized crime, drug-trafficking offenses, and other violent crimes as well as money laundering, and other white collar crimes of particular interest to the U.S. law enforcement community. 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 the testimony or statements of persons; providing documents, records and articles of evidence; locating or identifying persons; serving documents; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; assisting in proceedings related to restraint or immobilization and confiscation or forfeiture of assets or property, compensation or restitution, and recovery or collection of fines; and any other form of assistance not prohibited by the laws of the Requested State. 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, June 3, 2000. The President, The White House. The President: 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 South Africa on Mutual Legal Assistance in Criminal Matters (the ``Treaty''), signed at Washington on September 16, 1999. 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 a number of other countries. This Treaty contains many provisions similar to those in the other treaties and all of the essential provisions sought by the United States. It will enhance our ability to investigate and prosecute a variety of offenses, including terrorism, organized crime, drug-trafficking offenses, and other violent crimes, as well as money laundering and other forms of white collar crime of particular interest to the U.S. law enforcement community. The Treaty is designed to be self-executing and will not require new legislation. Article 1 sets forth a now-exclusive list of the major types of assistance to be provided under the Treaty, including taking the testimony or statements of persons; providing documents, records and articles of evidence; locating or identifying persons; serving documents; transferring persons in custody for testimony or other purposes; executing requests for searches and seizures; assisting in proceedings related to restraint or immobilization and confiscation or forfeiture of assets or property, compensation or restitution, and recovery or collection of fines; and any other form of assistance not prohibited by the laws of the Requested State. The scope of the Treaty includes not only assistance provided in connection with the investigation, prosecution, and prevention of offenses, but also in proceedings related to criminal matters, which may be civil or administrative in nature. Article 1(3) states that assistance shall be provided without regard to whether the conduct that is the subject of the investigation, prosecution or proceeding in the Requesting State would constitute an offense under the laws of the Requested State. Article 1(4) provides that the Treaty is intended solely for mutual legal assistance between the States and does not give rise to a right on the part of any private person to obtain, suppress or exclude any evidence, or to impede the execution of a request. Article 2 provides for the establishment of Central Authorities and defines Central Authorities for purposes of the Treaty. For the United States, the Central Authority is the Attorney General or a person designated by the Attorney General. For South Africa, the Central Authority is the Director-General of the Department of Justice or a person designated by the Director-General. The Article also provides that the Central Authorities shall communicate directly with one another for the purposes of the Treaty. Such communication may, in exceptional circumstances, be effected through diplomatic channels or through Interpol. Article 3 sets forth the circumstances under which a Requested State's Central Authority may deny assistance under the Treaty. A request may be denied if: (a) it relates to a political offense (a term expected to be defined on the basis of the term's usage in extradition treaties); (b) it relates to an offense under military law that would not be an offense under ordinary criminal law; (c) its execution would prejudice the national security or any other essential interests of the Requested State; or (d) it is not made in conformity with the Treaty. Article 3(2) establishes several categories of offenses that are not to be considered political offenses under the Treaty: (a) a murder or other violent crime against a Head of State or Deputy Head of State of the Requesting or Requested State; (b) an offense for which both the Requesting or Requested State have an obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their respective competent authorities for decision as to prosecution (e.g., the Convention for the Suppression of Unlawful Seizures of Aircraft, done at the Hague on 16 December 1970, 22 UST 1641, TIAS 7192); (c) murder; (d) an offense involving kidnapping, abduction, or any form of unlawful detention, including the taking of a hostage; and (e) attempting or conspiring to commit, aiding, abetting, inducing, counseling or procuring the commission of, or being an accessory before or after the fact to such offenses. Before denying assistance, the Central Authority of the Requested State is required under Article 3(3) to consult with its counterpart in the Requesting State to consider whether assistance can be given subject to such conditions as the Central Authority of the Requested State deems necessary. If the Requesting State accepts assistance subject to such conditions, it is required to comply with them. If the Central Authority of the Requested State denies assistance, it is required under Article 3(4) 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 requests to be made in other forms in emergency situations, but requires written confirmation within ten days unless the Central Authority of the Requested State agrees otherwise. The request must be in English. Article 5 concerns execution of requests. Article 5(1) requires the Central Authority of the Requested State to execute the request promptly or, when appropriate, 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 the courts of the Requested State have authority to issue subpoenas, search warrants, or other orders necessary to execute the request. Under Article 5(2), the Central Authority of the Requested State must make all necessary arrangements for representation of the Requesting State in the Requested State in any proceedings arising out of a request for assistance. Under Article 5(3), requests are to be executed in accordance with the laws of the Requested State, including the terms of the Treaty. 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. Under Article 5(4), if the Central Authority of the Requested State determines that execution of the request would interfere with an ongoing criminal investigation, prosecution, or proceeding in that State, 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 such conditions, it shall comply with them. Article 5(5) further requires the Requested State, if so requested, to use its best efforts to keep confidential a request and its contents and to inform the Central Authority of the Requested State if the request cannot be executed without breaching confidentiality. This provides the Requested State an opportunity to decide whether to pursue the request or to withdraw it in order to maintain confidentiality. Article 5 additionally requires the Requested State's Central Authority to respond to reasonable inquiries concerning progress in executing a request; to report promptly to the Requested State's Central Authority the outcome of its execution; and, if the request cannot successfully be executed in whole or in part, to inform the Requested State's Central Authority of the reasons therefor. Article 6 sets forth the mechanism for authentication or certification of information or evidence furnished under this Treaty. Article 6(1) specifies the forms (attached as Forms A, B, and E) to be used upon request by the United States, for authentication or certification of information or evidence provided to the United States under Articles 9, 10 and 16 and the forms (attached as Forms C and D) to certify the absence or non-existence of evidence. Article 6(c) provides that information or evidence authenticated or certified using the specified forms, as well as forms certifying the absence of records, shall be admissible in the United States as proof of the matters set forth therein. Article 6(2) specifies the conditions under which authentication or certification of such information or evidence provided to South Africa will be required, upon request by South Africa. It also provides that the substantive form of the attestation, affidavit or declaration required will be communicated by South Africa's Central Authority to its counterpart in the United States from time to time. Specifically, Article 6(2)(b) provides that in the case of court records of judicial proceedings, it is sufficient if a copy of such records is certified as a true copy of the original recorded by the relevant judicial officer or another competent authority in the United States. Moreover, all documents subject to a South African request for certification or authentication are to be accompanied by a certificate (attached as Form F), although Article 6(2) does provide that such authentication or certification may be made in the manner in which foreign documents are authenticated or certified to enable them to be produced in any court in the Republic of South Africa. In the case of documents contemplated in Article 10 of the Treaty, both Form F and the South African manner of authentication or certification are sufficient mechanisms for authentication or certification of evidence furnished to the Republic of South Africa. Article 7 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 Requested State: fees of expert witnesses; costs of translation, interpretation, and transcription; and the allowances and expenses related to travel of persons pursuant to Articles 11, 12 and 13. If, during the execution of a request, it become apparent that fulfillment of the request will entail expenses of an extraordinary nature, Article 7 indicates that the Central Authorities will consult to determine the terms and conditions under which execution may continue. Article 8(1) requires the Requested 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 in any investigation, prosecution, or proceeding other than that described in the request without its prior consent. Further, under Article 8(2), if the Requested State's Central Authority asks that information or evidence furnished under this Treaty be kept confidential or be used subject to specified conditions, and the Requesting State accepts the information subject to such conditions, the Requested State must use its best efforts to comply with the conditions. Once information is made public in the Requested State in accordance with either of these provisions, it may thereafter be used for any purpose. Article 8(3) provides that nothing in Article 8 prevents the use or disclosure of information to the extent that there is an obligation to do so under the Constitution of the Requested State in criminal proceedings. The Requested State is obliged to notify the Requested State in advance of any such proposed use or disclosure. Article 9 provides that a person in the Requested State from whom testimony or evidence is requested pursuant to the Treaty shall be compelled, if necessary, to appear and testify or produce items, including documents, records, and articles of evidence. Article 9(2) 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 pursuant to this Article. Article Article 9(3) further 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 permit them to question, directly or indirectly, 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 9(4) provides that the testimony or evidence shall be taken and the claim made known to the Central Authority of the Requested State for resolution by its authorities. Article 10 requires that the Requested State provide the Requesting State with copies of publicly available records in the possession of organs of State and government departments and agencies in the Requested State. Under Article 10(2), the Requested State may also provide copies of any documents, records, or information which are in the possession of an organ of State or a government department or agency in that State, but which are not publicly available, to the same extent and under the same conditions as it would provide them to its own law enforcement or judicial authorities. The Requested State has discretion to deny such requests entirely or in part. Article 11(1) provides a mechanism for the Requesting State to invite the voluntary appearance in its territory of a person located in the Requested State, indicating the extent to which the expenses will be paid. The Requested State is to inform the Central Authority of the Requesting State promptly of the person's response. Article 11(2) provides that the Central Authority of the Requesting State may, in its discretion, determine that a person appearing in the Requesting State pursuant to this Article shall not be subject to service of process, or be detained or subjected to any restriction of personal liberty, by reason of any acts or convictions that preceded the person's departure from the Requested State. Under Article 11(3), 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 the person, having left the Requesting State, voluntarily returns. The Central Authority of the Requesting State may, in its discretion, extend this safe conduct period for up to fifteen days if it determines that there is good cause to do so. Article 12 provides that a person in the custody of either State, whose presence for purposes of assistance under the Treaty is sought, may be transferred from the custody of one State to the custody of the other State provided that the person concerned and both Central Authorities consent and any terms or conditions set by the transferring State will be adhered to by the receiving State. These conditions may include that the receiving State shall have the authority and the obligation to keep the person transferred in custody unless otherwise authorized by the sending State; that the receiving State shall return the transferred person to the custody of the sending State as soon as circumstances permit or as otherwise agreed to by the Central Authorities; that the sending State is not required to initiate extradition proceedings or return of the person transferred; and that the person transferred receives credit for service of the sentence imposed in the sending State for time served in the custody of the receiving State. Under this Article, for example, a witness incarcerated in the Requested State could be transferred to the Requesting State to testify in a trial, or a defendant in the Requesting State could be transferred to attend a witness deposition in the Requested State if the person consents and the Central Authorities of both States agree. Article 13 provides that the Requested State may authorize the transit through its territory of a person held in custody by a third State whose personal appearance has been requested by the Requesting State to give testimony or evidence or otherwise provide assistance in an investigation, prosecution or proceeding. It further states that, where such transit is authorized, the Requested State shall have the authority and the obligation to keep the person in custody during transit in accordance with the laws of the Requested State, including the terms of the Treaty. Article 14 obligates the Requested State to use its best efforts to ascertain the location or identity of persons or items in the Requested State specified in a request. Article 15 obligates the Requested State to use its best efforts to effect service of any document relating, in whole or in part, to a request for assistance under the Treaty. A request for the service of a document requiring a person to appear before an authority in the Requesting State must be transmitted a reasonable time before the scheduled appearance. Proof of service is to be provided by the Requested State in the manner specified in the request. Article 16 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. The Article also provides that, upon request, every official who has custody of a seized item is required to certify the continuity of the item's custody, the identity of the item, and the integrity of its condition. Article 16(3) 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 17 provides that the Central Authority of the Requested State may require its counterpart in the Requesting State to return any documents, records or articles of evidence furnished to it in execution of a request under the Treaty as soon as possible. Article 18(1) provides that, if the Central Authority of one Contracting State becomes aware of proceeds of crimes or instrumentalities or objects used in the commission of crimes that are located in the other State and may be forfeitable or otherwise subject to seizure under the laws of that State, it may so inform the Central Authority of that other State. If the State receiving such information has jurisdiction in this regard, it may present this information to its authorities for a determination whether any action is appropriate. The Central Authority of the State receiving such information is required to inform the Central Authority of the State that provided the information of any action taken. Article 18 also obligates the Contracting States to assist each other to the extent permitted by their respective laws in proceedings relating to restraint or immobilization of proceeds of crimes and instrumentalities or objects used in the commission of crimes, confiscation or forfeiture of proceeds of crimes and instrumentalities or objects used in the commission of crimes, recovery or collection of fines imposed by courts as sentences in criminal proceedings and compensation or restitution to victims of crime. The State having custody over proceeds of crimes and instrumentalities or objects used in the commission of crimes is required to dispose of them in accordance with its laws. Either State may transfer to the other State all or part of such assets or property, or the proceeds of their sale, to the extent permitted under the transferring State's laws and upon such terms as it deems appropriate. Article 19 states that assistance and procedures provided in the Treaty shall not prevent either Contracting State from granting assistance through the provisions of other applicable international agreements or through the provisions of its domestic law. The States may also provide assistance pursuant to any bilateral arrangement, agreement or practice that may be applicable. Article 20 provides that the Central Authorities shall consult, at times mutually agreed, to promote the most effective use of the Treaty, and that they may agree upon such practical measures as may be necessary to facilitate the Treaty's implementation. Article 21 states that the Treaty shall apply to any assistance contemplated in Article 1, whether the acts were committed before, on, or after the date upon which the Treaty enters into force and that nothing in the Treaty shall be deemed to require or authorize any action by the Requested State that is contrary to the constitution of that State. Article 22 provides that the Treaty shall be subject to ratification and shall enter into force upon the exchange of instruments of ratification. It further provides that either State may terminate the Treaty by written notice to the other State through the diplomatic channel, termination to take effect six months following the date of notification. 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, Frank E. Loy.