H.Doc.108-234 AN AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND JAPAN ON SOCIAL ...

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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

<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


 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 

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