Mutual Legal Assistance Treaty with JapanSenate Consideration of Treaty Document 108-12
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[Senate Treaty Document 108-12] [From the U.S. Government Publishing Office] 108th Congress Treaty Doc. 1st Session SENATE 108-12 _______________________________________________________________________ MUTUAL LEGAL ASSISTANCE TREATY WITH JAPAN __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting TREATY BETWEEN THE UNITED STATES OF AMERICA AND JAPAN ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON AUGUST 5, 2003; INCLUDING A RELATED EXCHANGE OF NOTES November 24, 2003.--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 WASHINGTON : 2003 19-118 LETTER OF TRANSMITTAL ---------- The White House, November 24, 2003. 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 United States of America and Japan on Mutual Legal Assistance in Criminal Matters, signed at Washington on August 5, 2003. I transmit also, for the information of the Senate, a related exchange of notes and 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 negotiated by the United States in order to counter criminal activities more effectively. The Treaty should be an effective tool to assist in the investigation and prosecution of a wide variety of crimes. 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 testimony, statements, or items; examining persons, items, or places; locating or identifying persons, items, or places; providing items from governmental departments or agencies; inviting persons to testify in the requesting Party; transferring persons in custody for testimony or other purposes; assisting in proceedings related to forfeiture and immobilization of assets; and any other form of assistance permitted under the laws of the requested Party and agreed upon by the Central Authorities of the two Contracting Parties. I recommend that the Senate give early and favorable consideration to the Treaty, and give its advice and consent to ratification. George W. Bush. LETTER OF SUBMITTAL ---------- Department of State, Washington, October 27, 2003. The President, The White House. The President: I have the honor to submit to you the Treaty Between the United States of America and Japan on Mutual Legal Assistance in Criminal Matters (``the Treaty''), and a related exchange of notes, both signed at Washington on August 5, 2003. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification, and the exchange of notes be submitted for the information of the Senate. The Treaty covers mutual legal assistance in criminal matters. In recent years, similar bilateral treaties have entered into force between the United States and a number of other countries. This Treaty contains many provisions similar to those in other treaties and includes the essential provisions sought by the United States. It is accompanied by an exchange of notes (described below), which relates to Article 2 of the Treaty. The Treaty will enhance our ability to investigate and prosecute a variety of offenses. The Treaty is designed to be self-executing and will not require implementing legislation. Article 1 sets out the scope of assistance available under the Treaty. Article 1(2) contains a non-exhaustive list of the major types of assistance to be provided under the Treaty, including taking testimony, statements or items; examining persons, items or places; locating or identifying persons, items or places; providing items in the possession of governmental departments or agencies; presenting an invitation to a person whose appearance in the requesting Party is sought; transfer of a person in custody for testimony or other purposes; assisting in proceedings related to forfeiture and immobilization of proceeds or instrumentalities of criminal offenses; and any other assistance permitted under the laws of the requested Party and agreed upon between the Central Authorities of the Contracting Parties. The scope of the Treaty includes not only assistance provided in connection with the investigation, prosecution, and prevention of criminal offenses, but also in certain related proceedings. Significantly, Article 1(3) permits assistance in connection with an administrative investigation of suspected criminal conduct (e.g., an investigation by the Securities and Exchange Commission of suspected securities fraud), in such cases and upon such conditions as the requested Party deems appropriate. The Central Authority of the requesting Party would be required to certify that the authority conducting the investigation has statutory or regulatory authority to conduct the investigation of facts that could constitute criminal offenses, and that the testimony, statements or items to be obtained will be used in the requesting Party in an investigation, prosecution or other proceeding in criminal matters, including a decision whether to prosecute. Article 1(4) states that assistance is to be provided without regard to whether the conduct involved would constitute an offense under the laws of the requested Party, except as otherwise provided in the Treaty (see Article 3 below). Article 1(5) states explicitly that the Treaty does not create a new right or affect a pre-existing right on the part of any private person to impede the execution of a request or exclude any evidence. Article 2 provides for the designation 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 Japan, the Central Authority is the minister of Justice or the National Public Safety Commission or their designees. The authorization for Japan to designate two agencies is necessary because of the respective jurisdictions of the two agencies concerned. The article provides that the Central Authorities are to communicate directly with one another for the purposes of the Treaty. This Treaty is accompanied by an exchange of diplomatic notes that further sets forth the specific kinds of requests that will be handled by each agency on the Japanese side. The notes also provide for consultations between the United States and Japan before the implementation of any changes in such designations. In the exchange of notes Japan has designated the Minister of Justice as the Central Authority with respect to requests made by the United States. With respect to requests made by Japan, the Minister of Justice will also serve as the Central Authority for requests submitted by public prosecutors or judicial police officials, or if a request requires examination of a witness in a U.S. court. The Central Authority in connection with requests made by police officials or imperial guard officers will be the National Public Safety Commission or its designee. The Minister of Justice and the National Public Safety Commission will establish a mechanism to avoid unnecessary duplication of requests and to facilitate efficient and speedy provision of assistance. 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 it relates to a political offense, if the execution of a request would impair security or other essential interests, if a request does not conform to the requirements of this Treaty, or if the conduct would not constitute a criminal offense under the laws of the requested Party and execution of the request requires a court warrant or other compulsory measures under the laws of the requested Party. Before denying assistance under Article 3(1), the Central Authority of the requested Party is required to consult with its counterpart in the requesting Party to consider whether assistance can be given subject to such conditions as the Central Authority of the requested Party deems necessary. If the requesting Party accepts assistance subject to these conditions, it is required to comply with them. If the Central Authority of the requested Party denies assistance, it is required under Article 3(3) to inform the Central Authority of the requesting Party 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. A request for assistance must be in writing, except that a request may be accepted in another form if the Central Authority of the requested Party considers it appropriate to receive a request by other reliable means. In such cases, a supplementary confirmation of the request may be required in writing. Article 5 concerns execution of requests. Article 5(1) requires the Central Authority of the requested Party to execute the request promptly or, where appropriate, to transmit it to the authority having jurisdiction to do so. It provides that the competent authorities of the requested Party must do everything in their power to ensure the execution of a request. Under Article 5(2), the Central Authority of the requested Party must make all arrangements for execution of a request in the requested Party. Article 5(3) provides that requests are to be executed in accordance with the provisions of this Treaty and the laws of the requested Party. The manner or particular procedure described in a request referred to in paragraph 3(2) (taking testimony, statements or items), 3(6) (examination of persons, items or places) or 3(8) (particular procedures) of Article 4 shall be followed to the extent it is in accordance with the laws of the requested Party, and where it is possible. Article 5(4), provides that courts in the United States shall have authority to issue subpoenas, search warrants, or other orders necessary to execute the request. In Japan judges will have similar authority to issue the necessary warrants or orders. Under Article 5(5), if the Central Authority of the requested Party determines that execution of a request would interfere with an ongoing criminal investigation, prosecution, or proceeding in that State, it may postpone execution or make execution subject to conditions deemed necessary after consultations with the Central Authority of the requesting Party. If the requesting Party accepts such conditions, it must comply with them. Article 5(6) further requires the requested Party, if so requested by the Central Authority of the requesting Party, to make its best efforts to keep confidential the fact a request has been made, its contents, the outcome of executing a request and other relevant information. The Central Authority of the requested Party must inform the requesting Party's Central Authority if the request cannot be executed without disclosure of such information. This provides the requesting Party an opportunity to decide whether to pursue the request or to withdraw it in order to maintain confidentiality. This article also requires the requested Party's Central Authority to respond to reasonable inquiries by the requesting Party's Central Authority concerning progress toward execution of a particular request; to promptly inform the requesting Party's Central Authority of the outcome of its execution; and, if the request cannot be executed in whole or in part, to inform the requesting Party's Central Authority of the reasons therefor. Article 6 apportions between the two Parties the costs incurred in executing a request. It provides that the requested Party must pay all costs relating to the execution of a request, except for the following items to be paid by the requesting Party: fees of expert witnesses; costs of translation, interpretation and transcription; and allowances and expenses related to travel of persons pursuant to Articles 14 and 15. The article further provides that, in the event that a request entails extraordinary expenses, consultation between Central Authorities shall occur in order to determine the terms and conditions for execution. Article 7 requires the requesting Party, if so requested, not to use any testimony, statements or items provided under the Treaty for any purposes other than those described in the request without the prior consent of the requested Party. Further, if the requesting Party accepts information or evidence under the Treaty, subject to a request by the requested Party's Central Authority that it be kept confidential or be used in accordance with specified terms and conditions, the requesting Party must comply with the conditions. Nothing in the Article prevents the use or disclosure of testimony, statements or items provided under the Treaty to the extent that there is an obligation to do so under the Constitution of the requesting Party in a criminal prosecution. The requesting Party is obliged to notify the requested Party in advance of any such proposed use or disclosure. Once information is made public in the requesting Party in accordance with either of these provisions, it may thereafter be used for any purpose. Article 8 provides that items provided under the Treaty be transported and maintained in accordance with the conditions specified by the requested Party, including the conditions deemed necessary to protect third-party interests. In particular, the requesting Party shall not examine an item without the consent of the requested Party, if the examination could impair the integrity of the item. The article also provides that the requesting Party return items provided under the Treaty after such items have been used for the purpose described in a request. Article 9(1) provides that the requested Party shall take testimony, statements or items and shall employ, if necessary, compulsory measures in order to do so. This is one of the principal forms of assistance available under the Treaty. Under Article 9(2), the requested Party is obliged to make its best efforts to make possible the presence of such persons as may be specified in a request during the execution of a request, and allow such persons to question the witness. In the event that direct questioning is not permitted, written questions may be posed to the person from whom testimony, statements or items are sought. Article 9(3) permits a request for the search and seizure of any item for the requesting Party, if such compulsory measures are necessary and the request includes information justifying the use of those measures under the laws of the requested Party. In the event that a person from whom testimony, statements or items are sought asserts a claim of immunity, incapacity, or privilege under the laws of the requesting Party, Article 9(4) provides that the testimony or evidence is to be taken and the claim made known to the Central Authority of the requesting Party for resolution by its competent authorities. Article 10 requires the requested Party to examine persons, items or places, and to employ compulsory measures, if necessary, in order to do so. The requested Party shall make its best efforts to make possible the presence of such persons as may be specified in a request. Examinations may include the taking of photographs or creation of video records of persons, items or places, and may involve the participation of expert witnesses. Article 11 states that the requested Party shall make its best efforts to locate or identify persons, items or places. Article 12 requires the requested Party to provide the requesting Party with items that are in the possession of governmental departments and agencies in the requested Party and are available to the general public. The requested Party may also provide items that are in the possession of a governmental department or agency, and are not available to the general public, to the same extent and under the same conditions as such items would be available to its own investigative and prosecuting authorities. Article 13 covers the authentication of documents and certification of the chain of custody of items seized during the execution of a request. Article 13(1) provides that testimony, statements or items provided may be authenticated by the requested Party by use of a form in the Attachment to the Treaty. The Attachment (see below) is an integral part of the Treaty. Testimony, statements or items so authenticated shall be admissible in evidence in proceedings in the requesting Party in accordance with the relevant provisions of the Attachment. Article 13(2) provides that the continuity of custody of items seized, the identity of the items and the integrity of their condition may be certified by the requested Party by use of a form in the Attachment. Such certification shall also be admissible in evidence in proceedings in the requesting Party. Article 14(1) provides a mechanism for the requesting Party to ask for the voluntary appearance in its territory of a person located in the requested Party whose appearance is sought before an appropriate authority in the requesting Party. The requesting Party must indicate the extent to which the expenses will be paid and the Central Authority of the requested Party must promptly inform its counterpart in the requesting Party of the person's response. Article 14(2) states that a person who consents to appear before the appropriate authority in the requesting Party pursuant to this Article shall not be subject to detention or any restriction of personal liberty by reason of any conduct or conviction that preceded that person's departure from the requested Party. Under Article 14(3), any safe conduct provided for by this Article ceases seven days after the person was notified by the appropriate authority of the requesting Party that the person's presence is no longer required, or if the person has left the requesting Party and voluntarily returns to it, or if the person fails to appear before the appropriate authority on the scheduled appearance date. The Central Authority of the requesting Party must notify the Central Authority of the requested Party when safe conduct under this Article ceases. Article 15(1) provides for the temporary transfer of a person in the custody of one Contracting Party to the other for testimony or other purposes under the Treaty, if the person consents and the Central Authorities of both Parties agree, when permitted under the laws of the requested Party. For example, a witness incarcerated in one country may be transferred to the other country to give testimony in the presence of a defendant facing criminal charges in that other country. Article 15(2) sets forth both the express authority and the obligation of the receiving Party to maintain the person transferred in custody unless otherwise authorized by the sending Party. The person transferred must be returned immediately to the custody of the sending Party or as otherwise agreed by the Central Authorities, and the sending Party is not required to initiate extradition proceedings for the return of the person transferred. The person transferred also receives credit for time served in the custody of the receiving Party. Article 15(3) provides that the person transferred to the receiving Party shall enjoy the safe conduct provided for in Article 14 of the Treaty until the person's return to the sendingParty, unless the Central Authorities agree otherwise and the person consents. Article 16(1) obligates the Parties to assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the proceeds or instrumentalities of criminal offenses, including action to temporarily immobilize the proceeds or instrumentalities pending further proceedings. Article 16(2) provides that, if the Central Authority of one Party becomes aware that proceeds or instrumentalities of criminal offenses that may be forfeitable or otherwise subject to seizure are located in the other Party, it may so inform the Central Authority of the 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 of the Party that provided the information of any action taken. Under Article 16(3), the Party having custody over proceeds or instrumentalities of criminal offenses is required to retain or dispose of them in accordance with its laws. The custodial Party may transfer such proceeds or instrumentalities, in whole or in part, to the other Contracting Party, to the extent permitted by the transferring Party's laws and upon such conditions as it deems appropriate. Article 17 states that assistance and procedures provided in the Treaty do not prevent either Party from granting assistance to the other through the provisions of other applicable international agreements or through the provisions of its national laws. Article 18 provides that the Central Authorities shall hold consultations for the purpose of facilitating speedy and effective assistance under the Treaty, and may agree upon such measures as may be necessary for this purpose. The Contracting Parties shall, if necessary, hold consultations on any matter that may arise in the Treaty's interpretation or implementation. Article 19 provides that the Treaty is subject to ratification and that the instruments are to be exchanged as soon as possible. The Treaty then enters into force on the thirtieth day after the date of the exchange of instruments. Article 19(3) provides that the Treaty applies to requests presented on or after the date of its entry into force, whether the relevant acts occurred before, on or after that date. Article 19(4) further provides that either Contracting Party may terminate the Treaty by giving six months written notice to the other Contracting Party. The Attachment contains the forms for authentication of business records and foreign public documents and certification with respect to seized items, as provided in Article 13 above. The Attachment is an integral part of the Treaty. The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate as soon as possible. Respectfully submitted, Colin L. Powell.