Treaty with Malaysia on Mutual Legal AssistanceSenate Consideration of Treaty Document 109-22
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[Senate Treaty Document 109-22] [From the U.S. Government Publishing Office] 109th Congress Treaty Doc. SENATE 2d Session 109-22 _______________________________________________________________________ TREATY WITH MALAYSIA ON MUTUAL LEGAL ASSISTANCE __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting TREATY BETWEEN THE UNITED STATES OF AMERICA AND MALAYSIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED ON JULY 28, 2006, AT KUALA LUMPUR November 14, 2006.--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 14, 2006. 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 Malaysia on Mutual Legal Assistance in Criminal Matters, signed on July 28, 2006, at Kuala Lumpur. 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 enhance our ability to investigate and prosecute a wide variety of crimes. The Treaty is self-executing. The Treaty provides for a broad range of cooperation in criminal matters. Under the Treaty, the Parties agree to assist each other by, among other things: providing evidence (such as testimony, documents, items, or things) obtained voluntarily or, where necessary, by compulsion; arranging for persons, including persons in custody, to travel to the other country to provide evidence; serving documents; executing searches and seizures; locating and identifying persons, items, or places; examining objects and sites; freezing and forfeiting assets or property; and identifying or tracing proceeds of crime. 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, September 27, 2006. The President, The White House. The President: I have the honor to submit to you the Treaty on Mutual Legal Assistance in Criminal Matters between the United States and Malaysia signed on July 28, 2006. 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 countries. This Treaty contains all of the essential provisions of such treaties sought by the United States. It will enhance our ability to investigate and prosecute a wide variety of offenses. The Treaty is self-executing and will not require implementing legislation. A detailed, article-by-article analysis is enclosed with this report. The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate at the earliest possible date. Respectfully submitted. Condoleezza Rice. Enclosures: As stated. U.S.-Malaysia Mutual Legal Assistance Treaty overview The Treaty on Mutual Legal Assistance in Criminal Matters between the United States and Malaysia creates for the first time a treaty-based relationship of mutual legal assistance between the United States and Malaysia. The following is an article-by-article description of the provisions of the Treaty. Article 1 sets out the scope of assistance available under the Treaty. Article 1 (1) requires the Parties to provide each other the widest measure of mutual legal assistance in connection with investigations and proceedings pertaining to criminal matters. During the negotiations, both Parties expressed their understanding that this creates an international obligation on each Party to provide mutual legal assistance. The Parties further expressed their understanding that their international obligation would be carried out pursuant to the terms of the Treaty and in compliance with domestic laws. Assistance is to be available for ``investigations and proceedings pertaining to criminal matters.'' This terminology is meant to incorporate not only the full range of proceedings in a criminal case, including grand jury and other investigative and pre-charge proceedings, but also ancillary matters such as forfeiture proceedings that may be civil in nature but are nonetheless covered by the Treaty because they pertain to a criminal matter. Article 1 (2) contains a non-exhaustive list of the major types of assistance to be provided under the Treaty, including producing evidence (such as testimony, documents, or items or things) obtained voluntarily or, where necessary, by compulsion; arranging for persons, including persons in custody, to travel to the other country to provide evidence; serving documents; executing searches and seizures; locating and identifying persons, items, or places; examining objects and sites; freezing and forfeiting assets or property; and identifying or tracing proceeds of crime. Most of these types of assistance are described in detail in subsequent articles in the Treaty. The Treaty also authorizes provision of any other form of assistance not prohibited by the laws of the state receiving the request (referred to in the Treaty, as in other such treaties, as the ``requested state'' or ``requested Party,'' while the state making the request is the ``requesting state'' or ``requesting Party''). As long as there is no specific legal restriction barring the type of assistance requested, it may be provided pursuant to the Treaty. Article 1(3), a standard provision in U.S. mutual legal assistance treaties, provides that the Treaty is intended solely for government-to-government mutual legal assistance. The Treaty is not intended to provide to private persons a means of evidence gathering, nor is it intended to extend generally to civil matters. Private persons in the United States may continue to obtain evidence from Malaysia by letters rogatory, an avenue of international assistance that the Treaty leaves undisturbed. Similarly, the paragraph provides that the Treaty is not intended to create any right in a private person to suppress or exclude evidence provided pursuant to the Treaty, or to impede the execution of a request. Article 2 requires that each Party designate a ``Central Authority'' to make and receive Treaty requests. The Central Authority of the United States would make all requests to Malaysia on behalf of federal and state agencies and local law enforcement authorities in the United States. The Central Authority of Malaysia would make all requests emanating from officials in Malaysia. In each state, the Central Authority is to be the Attorney General or a person designated by the Attorney General. In the United States, the authority to handle the duties of the Central Authority under mutual legal assistance treaties has been delegated to the Office of International Affairs in the Criminal Division of the Department of Justice. The Central Authority of the requesting state exercises discretion as to the form and content of requests, as well as the number and priority of requests. The Central Authority of the requested state is responsible for receiving and evaluating each incoming request; transmitting it to the proper agency, court, or other authority for execution; and effecting a timely response. Article 2(1) provides that, in Malaysia, requests are to be transmitted through the Ministry of Foreign Affairs to or from the Central Authority. This pass-through is necessary because of a provision of Malaysian law that requires use of the diplomatic channel in Malaysia to transmit requests. There is no such requirement in United States law, and the Treaty specifically provides that requests need not pass through the diplomatic channel in the United States. This provision also does not affect transmission of evidence or other responses to requests or any other followup communications, all of which, pursuant to Article 2(5), are to be done directly between the Central Authorities. Article 3 sets forth the circumstances under which a requested state's Central Authority may deny assistance under the Treaty. Refusal under this Article is discretionary with the Central Authority of the requested state. Several of the grounds for refusal are common to most U.S. mutual legal assistance treaties. So, for example, a request may be denied if it relates to a political or a military offense, if it does not conform to the requirements of the Treaty, or if its execution would prejudice the sovereignty, security, public order, or other essential interest of the requested state. In addition, the Treaty provides that a request may be denied if it relates to an act or omission that, if it had occurred in the requested state, would not have constituted an offense under the laws of that state punishable by a deprivation of liberty for a period of one year or more, or by a more severe penalty (Article 3(1)(e)). The United States does not generally impose this requirement--known as ``dual criminality''--on mutual legal assistance requests, but under Malaysian law Malaysia is not permitted to provide assistance in support of the investigation or prosecution of an offense that is not recognized in Malaysia. To ensure that the Treaty would be available for assistance in the types of cases in which law enforcement authorities in the United States generally require assistance, the negotiators undertook a review of the respective criminal codes of the United States and Malaysia. That review revealed broad areas of commonality between the United States and Malaysia criminal codes, establishing that a dual criminality refusal ground would not unduly restrict the ability of U.S. authorities to obtain assistance. To further provide certainty to U.S. (and Malaysian) authorities seeking assistance, the Parties agreed to include in an annex to the Treaty anon-exclusive list of offenses for which they have already established that dual criminality exists. A similar approach was previously adopted in the Mutual Legal Assistance Treaty between the United States and the Republic of Korea. If a request relates to an offense that appears on this annexed list, pursuant to Article 3(2), the request may not be denied on the grounds of an absence of dual criminality. The list in the Annex is not all- encompassing--indeed, it does not include most common crimes for which dual criminality is obvious--but rather is designed to cover some of the types of offenses regarding which mutual legal assistance requests are most commonly made. The Parties further agreed that the Annex could be modified by an exchange of notes, without requiring amendment of the Treaty. The Annex is an integral part of the Treaty. Other grounds for refusal included in Article 3( 1) reflect requirements in Malaysian law that a Central Authority maintain the discretion to consider certain factors in evaluating requests. Assistance may be refused if the request (a) was made for the purpose of investigating a person on account of that person's race, religion, sex, ethnic origin, nationality, or political opinions; (b) relates to an offense for which a person has already been convicted or acquitted by a court in the requested state; or (c) relates to an offense of insufficient gravity or an item of insufficient importance. The negotiators expressed their views that these grounds for refusal would be employed infrequently, if ever. In keeping with the overall intent of the Treaty to facilitate assistance, the Parties also included in Article 3 several provisions designed to limit the use of grounds for refusal. Article 3(2), referred to above, restricts the use of the ground of absence of dual criminality. Article 3(3) provides that assistance shall not be refused solely on the ground of bank secrecy or that the offense involves fiscal matters. And Article 3(4) requires a Central Authority, before refusing assistance under Article 3(1), 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. Finally, if a Central Authority refuses assistance, it is required under Article 3(5) to inform the Central Authority of the requesting Party of the reasons for the refusal. Articles 4 and 5 prescribe the form and contents of requests under the Treaty, specifying in detail the information required in each request. If the information in the request is not sufficient to enable the request to be executed, the Central Authority of the requested state may ask for additional information. A request for assistance must be in writing, except that in urgent situations a request may be made in another form so long as the request is confirmed in writing as soon as possible thereafter. The requirement that requests be in writing can be satisfied with an electronic version, the authenticity of which can be verified. As both countries move towards use of electronic signatures, it is anticipated that this method might be used more frequently. Article 6 concerns the execution of requests. Article 6(1) includes three important concepts: the obligation to execute requests, and to do so promptly; a requirement that competent authorities do ``everything in their power'' to execute requests; and the granting of authority to courts in the requested state to issue subpoenas, search warrants, or other orders necessary to execute requests. Taken together, the latter two provisions specifically authorize United States courts to use all of their powers to issue whatever process is necessary to satisfy a request under the Treaty. They also reflect an understanding that the Parties intend to provide each other with every available form of assistance from judicial and executive branches of government in the execution of mutual legal assistance requests. Article 6(2) addresses the manner in which requests are to be executed. It creates a hierarchy for a requested state to follow in determining the appropriate procedures for executing a request. In the first instance, requests themselves may specify a particular procedure to be followed, and such specified procedures are to be followed unless prohibited by law in the requested state. This can be important to ensure that evidence collected in one state satisfies requirements for admissibility at trial in the other. If no particular procedure is specified in the request, the request is to be executed in accordance with any specific provisions of the Treaty. Finally, if neither the Treaty nor the request specifies procedures to be followed, the requested state is to execute the request in accordance with its domestic criminal procedure laws. The negotiators intended this provision, like similar provisions in other MLATs, to allow the requested state to use its established procedures for obtaining evidence where procedures are not otherwise specified, so long as those procedures do not undermine the obligation in the Treaty to provide assistance. See, e.g, In re Commissioner's Subpoenas, 325 F.3d 1287 (11th Cir. 2003). Article 6(3) states that the Central Authority of the requested state shall represent the requesting state or make other arrangements for representing the requesting state in the execution of a request for assistance. Thus, it is understood that if execution of the request entails action by a judicial authority or administrative agency, the Central Authority of the requested state shall arrange for the presentation of the request to that court or agency at no cost to the requesting state. Under Article 6(5), if the Central Authority of the requested state determines that execution of a request would interfere with an ongoing investigation or proceeding pertaining to a criminal matter in that state, it may postpone execution or make execution subject to conditions deemed necessary after consultations with the Central Authority of the requesting state. If the requesting Party accepts assistance subject to such conditions, it must comply with them. Article 6(6) is meant to address the possible circumstance in which the Central Authority of the requested state believes that the provision of assistance is likely to create a significant safety risk, for example, to a prospective witness or his or her family members. In such a circumstance, which the negotiators concluded would be unusual, the Parties would consult on reasonable measures to address the safety concern. Confidentiality and limitations on use of evidence obtained under the Treaty are addressed in Article 7. Although requests themselves are generally not confidential, the requesting Party may ask that the request, the supporting documents, action taken pursuant to the request, and even the fact that assistance is granted be kept confidential (Article 7(2)). The requested Party is to use its best efforts to comply with such a request, but if assistance cannot be granted without breaching the confidentiality requirements, the decision whether to proceed is left to the requesting Party. Article 7(1) requires that information or evidence provided under the Treaty not be used for investigations or proceedings other than those stated in the request without the consent of the requested Party. The requested Party may also request that the information or evidence produced under theTreaty be kept confidential or be used subject to certain conditions (Article 7(3)). The default rule, however, is that such information or evidence is not confidential, and Article 7(5) also provides that once such information or evidence has been disclosed in a public judicial or administrative proceeding, it may be used for any purpose. Moreover, the Treaty is explicit that it does not preclude the disclosure of information to the extent that there is an obligation to disclose it under the Constitution of the requesting state in a criminal prosecution. This contingency, found in Article 7(4), was included to ensure that the United States would be able to satisfy any obligations to disclose information under its Constitution, such as set forth in Brady v. Maryland, 373 U.S. 83 (1963). Malaysia's delegation indicated that there is no corresponding obligation under its laws. As with other provisions of the Treaty, the confidentiality protections and use limitation provisions of Article 7 are for the benefit of the two governments that are Parties to the Treaty, and invocation and enforcement of these provisions is entirely a matter for the Parties. Article 8 is the first of a series of articles that spell out in detail the procedures to be employed in the case of specific types of requests for assistance outlined in Article 1(2). Article 8 addresses the obtaining of evidence, whether it is a statement or testimony, documents, records, or particular items or things. A person from whom evidence is sought under the Treaty may appear voluntarily to provide such evidence, or, if necessary, the Treaty authorizes the Parties to compel production of evidence. This compulsion may be accomplished by subpoena or any other means available under the laws of the requested state. Article 8(2) specifically provides that use of compulsory process is authorized regardless of whether the proceeding for which the evidence is sought takes place in a court in the requesting state. This provision was necessary to ensure that Malaysia would be empowered to compel witness testimony when requested for use in U.S. grand jury proceedings. Article 8(3) requires the requested Party to permit persons specified in the request to be present during execution of the request and, where permitted by law, to question the person giving testimony or evidence. Even where direct questioning is not permitted, persons could be permitted under this provision to propose questions to be asked of a witness. Consistent with Article 1(3), this provision does not create a right for private persons to be present during the execution of the request. Article 8(4) contains the first of several provisions in the Treaty addressing the authentication of evidence produced pursuant to the Treaty. Similar provisions are found at Article 9(3) and 14(3). In the case of requests by Malaysia, the request will specify any authentication requirements that might apply. In the case of requests by the United States, evidence produced under the Treaty is to be authenticated by use of one of the forms appended to the Treaty. The appended forms are an integral part of the Treaty. It is the intent of the Parties that evidence produced and authenticated according to the procedure set forth in the Treaty be admissible in evidence in the requesting state. In the event that a person from whom the request seeks testimony, documents, records, or items of evidence asserts a right to decline to provide such evidence (such as a privilege or immunity), Article 8(5) establishes two different methods to proceed depending on which state's law is invoked. If the claim is based on the requested state's law, it is to be resolved by the authorities of the requested state. If, however, the claim is based on the laws of the requesting state, the evidence may nonetheless be taken and the claim resolved by the authorities of the requesting state, although the requested state may request a statement from the requesting state of its views as to the validity of the claim. This formulation allows each Party to resolve privilege claims made under its own laws. Article 8(6) provides that the Parties may agree to the use of live video or television links or other appropriate communications facilities for the purpose of executing a request for the taking of testimony on a case-by-case basis. Such technologies are to be employed according to the laws and procedures of the requested state. The United States can use and has used video technology, for example, to provide testimony to other countries upon request pursuant to 28 U.S.C. Section 1782. Article 9 addresses provision of documents or other records in the possession of government agencies. The Parties are obligated to provide to each other copies of publicly available records upon request. With respect to documents that are not publicly available, whether to provide such documents is left to the discretion of the requested Party. Article 10 provides a mechanism for the requesting Party to ask for the voluntary attendance in its territory of a person located in the requested state as a witness or expert in proceedings or to assist in an investigation. The requesting Party must indicate the extent to which the person's expenses will be paid, as well as any arrangements for the person's safety and accommodation while in the requesting state. Article 11 provides a similar mechanism for persons in custody in the requested state. A need sometimes arises for the testimony in one country of a person who is incarcerated in another country. For example, a witness incarcerated in one country may have to give testimony in the presence of an incarcerated defendant in the other country. Attendance of the person is still voluntary, but is also subject to the discretion of the Parties and agreement of the Central Authorities. In addition, the Treaty imposes certain conditions on such transfers: the person must be held in custody by the requesting Party, unless otherwise authorized by the requested Party; the requesting Party must return the person in custody to the requested Party at the conclusion of the matter, or as soon as circumstances permit or as otherwise agreed; the return of the person shall not require any extradition or other proceedings, such as immigration proceedings; and the period that the person is in custody in the requesting state shall be counted towards the person's period of imprisonment or detention in the requested state. When persons agree to travel to a requesting state to give evidence, whether in custody or not, Article 12 authorizes the Central Authority of the requesting state, in its discretion, to give such persons a guarantee of ``safe conduct.'' This would ensure that a person attending in the requesting state would not be subject to service of process or any restriction on personal liberty by reason of any acts or convictions that preceded that person's departure from the requested state. It is understood that this provision would not prevent action against a person for perjury or any other crime committed while in the requesting state--rather, it applies only to past offenses. Under Article 12(2), any safe conduct so provided would cease seven days after the Central Authority of the requested state is notified that the person's presence is no longer required, or if the person has left the requesting state and voluntarily returns to it. Of course, as the Treaty sets forth, this article does not preclude a state from holding a person in custody as required by Article 11(2). While Article 11 addresses the transfer of persons in custody from one Party to the other, Article 13 addresses the situation in which one Party may need to bring persons in custody through the territory of the other on the way to or from third states in order to participate in an investigation or proceeding. Article 13(2) provides that the state through which the person transits has the authority and obligation to keep that person in custody during the transit unless otherwise agreed. Article 14 obligates the requested Party to execute a request for the search, seizure, and delivery of any documents, records, or items or things if the request includes the information justifying such action under the laws of the requested state. For requests from Malaysia to the United States, this means that a request would have to be supported by a showing of probable cause for the search. The evidentiary standard required under Malaysia law for requests by the United States is similar. Article 15 provides for determining the whereabouts in the requested state of persons (such as witnesses, potential defendants, or experts) or items or things when such information is requested. The Treaty requires only that the requested state use its ``best efforts'' to locate the persons or items or things sought. The extent of such efforts will vary, of course, depending on the quality and extent of the information provided by the requesting state concerning the suspected location and last known location. The obligation is limited to persons or items or things that are reasonably believed to be in the territory of the requested state. Thus, the United States would not be obliged to attempt to locate persons or items that may be in third countries. Article 16 relates to service of documents. It creates an obligation on the Parties to use their best efforts, upon request, to serve documents relating to a criminal investigation or proceeding such as summonses, complaints, subpoenas, or notices. When the document pertains to a response or appearance in the requesting state, it must be transmitted a reasonable time before the scheduled response or appearance. The Parties chose not to set a fixed period of time for this obligation, as circumstances may vary. Article 17 obligates the Parties, upon request and to the extent permitted by their domestic laws, to endeavor to locate, trace, restrain, freeze, seize, forfeit, or confiscate the proceeds and instrumentalities of crime or recover pecuniary penalties. The types of actions that could be undertaken in the United States under this Article include actions to seize and forfeit property under 18 U.S.C. Section 981, which can be and is employed to temporarily restrain or to seize assets or proceeds of offenses committed abroad. The language of this Article, however, does not require either state to take any action that would exceed its domestic legal authority. Thus it does not mandate, for example, institution of forfeiture proceedings against property located in the United States in the absence of statutory authority to institute such proceedings. Once property is confiscated, Article 17(2) permits the Party in control of the property to share it with the other Party or otherwise dispose of it in accordance with its own laws. United States law permits the government to transfer a share of certain forfeited property to other countries that participate directly or indirectly in the seizure or forfeiture of the property where, among other requirements, such transfer is authorized by an international agreement. This Article provides such authorization for asset sharing with Malaysia. Article 17(3) requires the rights of bona fide third parties to be respected in any action taken under this Article. Article 18 states that this Treaty shall not prevent the Parties from providing assistance to each other through the provisions of other treaties, arrangements, or practices that may be applicable, or through the provisions of their national laws. Thus, for example, the Treaty would leave the provisions of U.S. and Malaysian law on letters rogatory completely undisturbed, and would not alter any practices or arrangements concerning investigative assistance or prohibit the Parties from developing other such practices or arrangements. Article 19 addresses the costs associated with providing assistance. As is standard in U.S. mutual legal assistance treaties, Article 19 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 private counsel retained at the request of the requesting Party; fees and reasonable expenses of expert witnesses; costs of translation, interpretation and transcription; and allowances and expenses related to travel of persons pursuant to Articles 10 and 11. The article also providesthat the requesting Party shall pay the travel expenses of custodial or escorting officers, and the costs of utilizing live video links or other similar facilities, subject to agreement between the Parties. Finally, Article 19(3) provides that, in the event that fulfilling a request would require extraordinary and substantial resources, including expenses, consultation between Central Authorities shall occur in order to determine the terms and conditions for execution. Article 20 provides for consultations between the Central Authorities to promote the effective use of the Treaty. The Parties discussed the importance of regular consultations between Central Authorities. Such contacts generally result in development of practical measures to more effectively implement the Treaty. Article 21 is a dispute settlement clause. In keeping with the intent of the Treaty to make the Central Authorities the primary points of contact between the two governments in implementation of the Treaty, the Central Authorities are also expected to resolve any disputes that arise. The article provides, however, that if the Central Authorities are not able to reach accommodation after a reasonable period, disputes shall be resolved through the diplomatic channel. No external dispute resolution mechanism is contemplated or provided for. The final clauses are contained in Article 22. The Treaty will enter into force upon exchange of instruments of ratification. It is expressly retroactive--that is, once in force, it shall apply to all requests presented between the Parties regardless of when the acts or omissions constituting the offense occurred. Article 22 also provides procedures for termination of the Treaty, but specifies that termination shall not prevent completion of any requests made prior to termination.