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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.