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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.