Mutual Legal Assistance Treaty with GermanySenate Consideration of Treaty Document 108-27
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[Senate Treaty Document 108-27]
[From the U.S. Government Printing Office]
108th Congress
2d Session SENATE Treaty Doc.
108-27
_______________________________________________________________________
MUTUAL LEGAL ASSISTANCE TREATY WITH GERMANY
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE FEDERAL REPUBLIC OF
GERMANY ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT
WASHINGTON ON OCTOBER 14, 2003; AND A RELATED EXCHANGE OF NOTES
November 16, 2004.--Treaty was read the first time, and together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate
LETTER OF TRANSMITTAL
----------
The White House, November 16, 2004.
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 the Federal Republic of
Germany on Mutual Legal Assistance in Criminal Matters, signed
at Washington on October 14, 2003, and a related exchange of
notes. 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. The
Treaty should be an effective tool to assist in the 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 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;
undertaking telecommunications surveillance, undercover
investigations, and controlled deliveries; assisting in
proceedings related to immobilization and forfeiture of assets,
restitution to the victims of crime and collection of fines;
and any other form of assistance not prohibited by the laws of
the State from whom the assistance is requested.
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,
June 14, 2004.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
Between the United States of America and the Federal Republic
of Germany on Mutual Legal Assistance in Criminal Matters
(``the Treaty''), signed at Washington on October 14, 2003, and
a related exchange of notes. I recommend that the Treaty and
exchange of notes 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 between the United States and a number of
other countries. This Treaty contains many provisions similar
to those other treaties and all by the essential provisions
sought by the United States. It is accompanied by an exchange
of notes which relates to Articles 9, 10, and 11 of the Treaty
and which forms an integral part 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. The Parties shall afford assistance in criminal
investigations and proceedings, which, in the case of Germany,
include those relating to regulatory offenses under antitrust
law. Assistance also shall be granted for investigations and
proceedings relating to regulatory offenses as a whole, to the
extent they may lead to court proceedings or may be referred
for criminal prosecution in the Requesting State and would
constitute criminal offenses in the Requested State. This will
enable assistance for investigations by, for example, the
Securities and Exchange Commission or the Federal Trade
Commission.
Article 1(2) contains a non-exhaustive list of the major
types of assistance to be provided under the Treaty, including
taking the testimony or statements of persons; providing items;
locating or identifying persons; serving documents;
transferring persons in custody for testimony or other
purposes; executing requests for searches and seizures;
undertaking special investigative techniques, such as
telecommunications surveillance, undercover investigations, and
controlled deliveries; assisting in proceedings related to
immobilization and forfeiture of assets; assisting in
proceedings related to restitution to the victims of crime and
collection of fines; and any other form of assistance not
prohibited by the laws of the Requested State. This is the
first U.S. bilateral MLAT to include special investigative
techniques among permissible types of assistance.
Paragraph 3 establishes that requests may be initiated or
executed by any competent authority designated in the Appendix
to the Treaty. For both countries, state as well as federal
officials are listed as competent authorities.
Article 1(4) provides that assistance does not depend upon
whether the conduct that is the subject of the criminal
investigation or proceeding in the Requesting State also would
constitute a criminal or regulatory offense under the laws of
the Requested State, except in limited circumstances addressed
separately in the Treaty (e.g., search and seizure under
Article 11) .
Paragraph 5 states that a request under the Treaty is
necessary in investigations or proceedings involving compulsory
process in the other State. Where denial of a request or delay
in responding to it may jeopardize the success of the
investigation or proceeding in the Requesting State, the
Parties are obliged to consult in an effort to achieve a
satisfactory result, but if, after 40 days from the
commencement of such consultations, no such result is reached,
then the Parties' obligations under the Treaty are deemed
fulfilled, and other, non-treaty-based measures may be pursued.
Article 1(6) states explicitly that the Treaty does not
create a right on the part of any private person to obtain,
suppress or exclude any evidence, or to impede the execution of
a request. Paragraph 7 extends Treaty coverage to criminal
investigations and proceedings related to foreign exchange
matters only to the extent subsequently agreed between the
Parties.
Article 2 provides for the designation of Central
Authorities and identifies who will fulfill this
responsibility. For the United States, the Central Authority is
the Attorney General or a person designated by the Attorney
General. For the Federal Republic of Germany, the Central
Authority is the Federal Ministry of Justice. The article
provides that the Central Authorities are to communicate
directly with one another for the purposes of the Treaty.
However, in cases of urgency, the German Federal Cartel Office
or a German state Ministry of Justice may communicate directly
with the U.S. Department of Justice.
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 its execution would
prejudice the security or other essential public interests of
the Requested State. During the course of negotiations, Germany
indicated that it would review on a case-by-case basis whether
to deny assistance to a capital prosecution in the United
States. Several other countries with which the United States
has concluded MLATs in recent years, including Australia,
Austria and Luxembourg, have taken a similar position.
Article 4 obligates the Requested State to effect service
of any document transmitted to it for this purpose by the
Requesting State, provided that it is received at least one
month before the scheduled court appearance of the person to be
served. Proof of service is to be provided by means of a
receipt or an official declaration. A person who is not a
national of the Requesting State, and who does not answer a
summons served upon him or her, is not subject to penalty or
other coercive measures.
Article 5 provides a mechanism for a Requesting State to
extend an invitation to a witness or expert located in the
Requested State to appear at a proceeding outside the latter's
territory. The Requesting State mut indicate the extent to
which the person's expenses will be paid.
Article 6 addresses safe conduct. A witness or expert
appearing in the Requesting State pursuant to a Treaty request
may not be subjected to suit or detained with respect to acts
that preceded departure from the Requested State. A person who
appears to answer for acts forming the subject of a criminal
proceeding is similarly not subject to suit or detention except
to the extent specified in the summons. In both cases, safe
conduct ceases 15 days after the appearance, if the person has
not left the Requesting State or returns to it.
Article 7 provides for the temporary transfer of a person
in custody in the Requested State to the Requesting State for
purposes of assistance under the Treaty (for example, a witness
incarcerated in the Requested State may be transferred to the
Requesting State to have his testimony taken in the presence of
the defendant), unless the person in question does not consent
or there are overriding grounds for non-transfer. Article 7(4)
further establishes both the express authority and the
obligation of the receiving State to keep the person
transferred in custody unless otherwise authorized by the
sending State. The person transferred must be returned to the
custody of the sending State as soon as circumstances permit or
as otherwise agreed by the Central Authorities, and the sending
State 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 State.
Article 8 provides that the Requested State may authorize
the transit through its territory of a person whose appearance
in a criminal investigation or proceeding has been sought by
the Requesting State, and obliges the Requested State to keep
the person in custody during such transit.
Article 9 requires the Requested State to provide the
Requesting State with copies of publicly available records in
the possession of its government offices and agencies. The
Requested State may also provide copies of records in the
possession of a government office or agency, but 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 the discretion to deny
requests for such non public documents, entirely or in part.
Article 9 also provides that records provided shall be
authenticated either under the provisions of the 1961 Hague
Convention Abolishing the Requirement of Legalization for
Foreign Public Documents or by an attestation of authenticity
done by the official responsible for maintaining the records.
Alternatively, the official may certify the absence or
nonexistence of such records. Such authentications and
certifications, if they follow the forms contained in the
exchange of notes to the Treaty, are admissible in evidence in
the Requesting State as proof of the truth of the matters they
address.
Article 10 states that, insofar as the laws of the
Requested State allow, a person in the Requested State from
whom testimony or evidence is requested shall be compelled, if
necessary, to appear and testify or produce documents, records,
information and other items. The Requesting State may request
that evidence be given under oath, and the giving of false
testimony is to be subject to prosecution under the laws of the
Requested State.
Article 10(3) further requires the Requested State to
permit persons specified in the request (such as the accused,
counsel for the accused, or other interested persons) to be
presentduring execution of the request and to allow them to
propose questions to be asked of the person giving the testimony or
evidence. In the event that a person whose testimony or evidence is
being taken in the Requested State asserts a claim of immunity,
incapacity, or privilege under the laws of the Requesting State,
Article 10(5) provides for the Requesting State to be consulted as to
the validity of the claim.
Finally, in order to ensure admissibility in evidence in
the Requesting State, Article 10(6) provides a mechanism for
authenticating, by means of an attestation, evidence that is
produced pursuant to or that is the subject of testimony taken
in the Requested State. Such attestations are to be certified
in accordance with procedures specified in the request, which,
in the case of business records, may include a certificate or
protocol. Evidence so authenticated is admissible in the
Requesting State as proof of the truth of the matter it
addresses. As noted above in connection with Article 9, the
Governments have exchanged diplomatic notes setting out agreed
forms to be relied upon for this purpose.
Article 11 provides that the Requested State shall execute
a request for search and seizure of any item, if the offense is
punishable criminally (or by a regulatory fine under German
law) under the laws of both States, if information is supplied
to the Requested State justifying such action under its laws,
and if the Requesting State documents that compulsory
production or seizure also could be obtained under its laws.
This Article further creates a mechanism for certifying,
through the use of procedures specified in the request, the
identity of the item and its chain of custody. A form set out
in the exchange of diplomatic notes may be utilized for this
purpose. Certifications following these procedures are
admissible as proof of the chain of custody in the Requesting
State.
Article 12 identifies three types of special investigative
techniques which may be utilized by the Parties, within their
possibilities and under the conditions prescribed by domestic
law. These are: telecommunications surveillance, undercover
investigations, and controlled deliveries. This MLAT marks the
first occasion where such techniques have been specifically
recognized by the United States as types of mutual legal
assistance. The provision was included at the request of the
Federal Republic of Germany.
Article 13(1) provides that, if the Central Authority of
one Party becomes aware that proceeds or instrumentalities of
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 theParty that provided the information of any
action taken.
Article 13(2) obligates the Parties to assist each other to
the extent permitted by their respective laws in proceedings
relating to the forfeiture of the proceeds and
instrumentalities of offenses, restitution to victims of crime,
and collection of fines imposed as sentences in criminal
prosecutions. This may include action to temporarily immobilize
proceeds or instrumentalities. Under Article 13(3), the Party
having custody over proceeds or instrumentalities of offenses
is required to dispose of them in accordance with its laws,
including the possibility of transferring assets or proceeds to
the other Party.
Article 14 requires the Requested State, if so requested by
the Central Authority of the Requesting State, to use its best
efforts to keep confidential a request and its contents. The
Central Authority of the Requested State must inform the
Requesting State's Central Authority if the request cannot be
executed without breaching such confidentiality. This provides
the Requesting State an opportunity to decide whether to pursue
the request or to withdraw it in order to maintain
confidentiality.
This article also enables the Requested State's Central
Authority to request that evidence or information it furnishes
under the Treaty be kept confidential or used only subject to
specified conditions. If evidence or information is made
subject to conditions, the Requesting State shall use its best
efforts to honor them.
Article 15 addresses conditions in detail. Where the
Requested State could refuse assistance but instead offers it
subject to conditions that are accepted by the Requesting
State, the latter is bound to comply with the conditions. This
Article also requires the Requesting State not to use
information or evidence obtained under the Treaty for any
purposes other than those for which it was sought and granted,
other than exceptions specified in paragraph 3, without the
prior consent of the Requested State.
The circumstances under which evidence or information
generally may be used without prior consent are: for other
purposes within the scope of assistance under the Treaty; for
prevention of a serious criminal offense; in non-criminal
judicial or administrative proceedings related to criminal
matters; and to avert substantial danger to public security. A
Requested State may, however, specifically exclude use for one
of these purposes in a particular case.
Article 15(4) permits a Requesting State to disclose to a
defendant in a criminal proceeding evidence that may be
exculpatory or that relates to the truth and veracity of a
prosecution witness. The Requesting State is obliged to notify
the Requested State in advance of any such proposed disclosure.
In addition, Article 15(5) permits the use of information for
anypurpose once it has been made public in the normal course of
a criminal proceeding in the Requesting State.
Article 16 provides a special rule for ensuring
confidentiality in the Requesting State of information or
evidence received in connection with an antitrust investigation
or proceeding. Such information is to receive the same degree
of protection as evidence obtained in the Requesting State
itself, may be disclosed only to persons or authorities
competent for prosecuting antitrust offenses, and may be used
only in public court proceedings or judicial decisions, absent
consent to broader use.
Article 17 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
in urgent situations. Requests not in writing require written
confirmation within ten days unless the Central Authority of
the Requested State agrees otherwise.
Article 18 stipulates that requests may be made in the
language of either Party, but, if made in the language of the
Requesting State, shall be accompanied by a translation into
the language of the Requested State. Translations of documents
in the other Party's language also are required, unless
otherwise agreed.
Article 19 concerns execution of requests. A Requested
State shall execute a request in accordance with its own
criminal law and criminal procedure law except to the extent
the Treaty provides otherwise. This obligation is to be
construed with a view to fulfilling the overall objective of
the Treaty of promoting cooperation, as recently illustrated in
the case of In re Commissioner's Subpoenas, 325 F. 3d 1287
(11th Cir. 2003). In addition, a Requested State must honor
requests for use of specific procedures unless prohibited under
its criminal procedure law. The Requested State's Central
Authority shall ensure that the request either is executed or
transmitted to the authority having jurisdiction to do so. The
competent authorities of the Requested State must do everything
in their power to execute a request, and its courts shall have
authority to issue needed orders, including search warrants.
Requests are to be executed as soon as possible. However,
Article 19(5) permits the Requested State to seek additional
information necessary to execute the request. In addition, if
the Requested State determines that execution of a request
would interfere with an ongoing criminal investigation or
proceeding in that State, it may postpone execution or make
execution subject to conditions determined to be necessary
after consultations with the Central Authority of the
Requesting State. If the Requesting State accepts assistance
subject to conditions, it must comply with them.
Article 20 provides that the Requesting State shall return
any item provided in response to a request, unless return is
waived, and that the Central Authority of the Requested State
may require its counterpart in the Requesting State to protect
third party interests in a transferred item.
Article 21 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State must pay all expenses and fees relating to the execution
of a request, except for those relating to expert services;
translation, interpretation and transcription; travel of
witnesses or experts outside the Requested State pursuant to
Article 5 or inside the Requested State pursuant to Article 10;
and the transfer of a person in custody outside the Requested
State pursuant to Article 7. The article further provides that,
in the event a request entails extraordinary expenses,
consultation between the Central Authorities shall occur in
order to determine the terms and conditions for continuing
execution.
Article 22 authorizes transfer of a matter to the other
Party for consideration of possible criminal investigation or
prosecution. The receiving Party is obliged to notify the
referring Party of the ultimate disposition of the matter.
Article 23 clarifies that, as a general matter, documents
and records transmitted in response to a request do not require
certification, authentication or other legalization except to
the extent specified in the Treaty.
Article 24 provides that the Central Authorities shall
consult, at times mutually agreed, to promote the most
effective use of the Treaty, and may agree upon practical
measures to facilitate the Treaty's implementation.
Article 25 makes clear that assistance and procedures under
the Treaty are non-exclusive; other applicable international
agreements, arrangements, or provisions of domestic law may be
utilized instead. Under Article 25(2), assistance may be
refused for a tax offense if the Requested State regards the
offense as being based either on taxation in the Requesting
State that is contrary to the provisions of any double tax
convention to which both States are party, or, in the case of
taxes not covered by any such convention, on taxation that is
contrary to the fundamental principles of taxation. Finally,
Article 25(3) clarifies that police authorities conducting
criminal investigations may request assistance directly from
the other State's police authorities. Such requests by U.S.
police authorities are to be addressed to Germany's Federal
Criminal Police Office (BKA).
Article 26 provides that the Treaty is subject to
ratification and that the instruments of ratification are to be
exchanged as soon as possible. The Treaty then enters into
force thirty days after the exchange of instruments. Article
26(3) provides that either State may terminate the Treaty by
writtennotice to the other State, termination to be effective
one year after the date of such notice.
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.