[Senate Treaty Document 104-1]
[From the U.S. Government Publishing Office]





    104th 1st Session            SENATE              Treaty Doc.
                                                        104-1
_______________________________________________________________________



                                     



 
    TREATY WITH THE REPUBLIC OF KOREA ON MUTUAL LEGAL ASSISTANCE IN 
                            CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  from

                     THEPRESIDENTOFTHEUNITEDSTATES

                              transmitting

  THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF 
    KOREA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT 
 WASHINGTON ON NOVEMBER 23, 1993, TOGETHER WITH A RELATED EXCHANGE OF 
                     NOTES SIGNED ON THE SAME DATE

TONGRESS.#13


 January 12, 1995.--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, January 12, 1995.
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 Government of the United States of America and the 
Government of the Republic of Korea on Mutual Legal Assistance 
in Criminal Matters, signed at Washington on November 23, 1993, 
with a related exchange of notes signed the same date. Also 
transmitted for the information of the Senate is the report of 
the Department of State with respect to this Treaty.
    The Treaty is one of a series of modern mutual legal 
assistance treaties that the United States is negotiating 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 modern criminals, including members of 
drug cartels, ``white-collar'' criminals, and terrorists. The 
Treaty is self-executing.
    The Treaty provides for a broad range of cooperation in 
criminal matters. Mutual assistance available under the treaty 
includes: (1) taking testimony or statements of persons; (2) 
providing documents, records, and articles of evidence; (3) 
serving documents; (4) locating or identifying persons or 
items; (5) transferring persons in custody for testimony or 
other purposes; (6) executing requests for searches and 
seizures; (7) assisting in forfeiture proceedings; and (8) 
rendering any other form of assistance not prohibited by the 
laws of the Requested States.
    I recommend that the Senate give early and favorable 
consideration to the Treaty and give its advice and consent to 
ratification.

                                                William J. Clinton.

                          LETTER OF SUBMITTAL

                              ----------                              

        Department of State, Washington, November 17, 1994.
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 Republic of Korea 
on Mutual Legal Assistance in Criminal Matters (the 
``Treaty''), signed at Washington on November 23, 1993, 
together with a related exchange of notes signed on the same 
date. I recommend that the Treaty and the related 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 with Argentina, THe Bahamas, Canada, Italy, 
Mexico, Morocco, the Netherlands, Spain, Switzerland, Thailand, 
Turkey, the United Kingdom (concerning the Cayman Islands), and 
Uruguay. Other similar treaties have been signed and ratified 
by the United States (but have not yet entered into force) with 
Belgium, Colombia, and Jamaica. In addition, treaties with 
Nigeria and Panama have been transmitted to the Senate and 
await Senate consideration. This Treaty contains many 
provisions similar to those in the other treaties. It will 
enhance our ability to investigate and prosecute a variety of 
offenses, including violent crimes, drug trafficking, and fraud 
and other white-collar crimes. The Treaty is designed to be 
self-executing and will not require implementing legislation.
    Article 1 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 documents, 
records, and articles of evidence; serving documents; locating 
or identifying persons or items; transferring persons in 
custody for testimony or other purposes; executing requests for 
searches and seizures; assisting in forfeiture proceedings; and 
any other form of assistance not prohibited by the laws of the 
Requested State. The scope of the Treaty includes not only 
criminal offenses, but also proceedings related to criminal 
matters, which may be civil or administrative in nature. The 
article makes it clear that the Treaty is not designed to be 
utilized by nongovernmental parties or institutions who seek 
evidence for use in solely private matters. Similarly, the 
Treaty is not intended to create any right in a private person 
to suppress or exclude evidence.
    Article 2 provides for the establishment of Central 
Authorities and defines the 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 the Republic of Korea, the Central Authority is 
the Minister of Justice or a person designated by the Minister 
of Justice.
    Article 3 sets forth the circumstances under which a State 
may deny assistance under the Treaty. A request may be denied 
if it relates to a political or military offense that would not 
be a crime under ordinary criminal law, or if the Central 
Authority of the Requested State has substantial grounds to 
believe that compliance with the request would promote 
prosecution or punishment based on race, religion, nationality 
or political opinion. In addition, a request may be denied if 
its execution would prejudice the security or similar essential 
interests of the Requested State.
    Article 3 also gives the Requested State the discretion to 
deny assistance if the conduct that is the subject of the 
request would not constitute an offense under the laws of the 
Requested State. This basis for denial, however, does not apply 
if the conduct in question falls under one of 23 categories of 
serious crimes described in the annex to the Treaty, for which 
assistance must be provided without regard to whether the 
conduct would be punishable under the laws of the Requested 
State.
    Before denying assistance under Article 3, the Central 
Authority of the Requested State is required to consult with 
its counterpart in the Requesting State to consider whether 
assistance can be given subject to such conditions it deems 
necessary. If the Requesting State accepts assistance subject 
to conditions, it shall comply with the conditions. If the 
Central Authority of the Requested State denies assistance, it 
shall uniform the Central Authority of the Requesting State 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 case. The article specifies further 
information to be provided to the extent necessary and possible 
to assist in locating individuals and effecting particular 
types of assistance. Unless otherwise agreed, all requests and 
supporting documents shall be in the language of the Requested 
State.
    Article 5 requires the Requested State to comply promptly 
with a request, or to transmit it to the authorities with 
jurisdiction to do so. The competent authorities of the 
Requested State shall do everything in their power to execute a 
request. The Courts of the Requested State shall have authority 
to issue subpoenas, search warrants, or other orders necessary 
to execute the request.
    Requests are to be executed in accordance with the laws of 
the Requested State unless the Treaty provides otherwise. 
However, the method of execution specified in the request shall 
be followed except insofar as it is prohibited by the laws of 
the Requested State.
    If the Central Authority of the Requested State determines 
that execution of the request would interfere with an ongoing 
criminal investigation or proceeding, it may postpone execution 
or, after consultations with the Requesting State, impose 
conditions on such execution. If the Requesting State accepts 
assistance subject to such conditions, it shall comply with 
them.
    Article 5 further requires the Requested State, if so 
requested, to use its best efforts to keep confidential a 
request and its contents, and to inform the Requesting State if 
the request cannot be executed without breaching 
confidentiality.
    Article 6 apportions between the two States the costs 
incurred in executing a request. Generally, each State shall 
bear the expenses incurred within its territory in executing a 
request.
    Article 7 obliges the Requesting State not to use any 
information or evidence obtained under the Treaty for purposes 
unrelated to the proceedings stated in the request without 
prior consent of the Requested State. If the Requested State 
requests that information or evidence furnished be kept 
confidential, the Requesting State is required to use its best 
efforts to comply with the conditions specified. Once 
information is made public in the Requesting State in 
accordance with the Treaty, no further limitations on use 
apply.
    Article 8 provides that the Requested State may compel, if 
necessary, the taking of testimony or production of documents 
or other evidence in its territory on behalf of the Requesting 
State. The article requires the Requested State, upon request, 
to inform the Requesting State in advance of the date and place 
of the taking of testimony.
    Article 8 also requires the Requested State to permit the 
presence of any persons specified in the request (such as the 
accused, counsel for the accused, or other interested persons) 
and to permit such persons to question the person whose 
testimony is being taken or, if such direct questioning is not 
permitted, to submit questions to the appropriate authority. In 
the event that a person whose testimony or evidence is being 
taken asserts a claim of immunity, incapacity, or privilege 
under the laws of the Requesting State, the testimony or 
evidence shall be taken and the claim made known to the 
Requesting State for resolution by its authorities.
    Finally, Article 8 provides a mechanism for authentication 
of documentary evidence produced pursuant to this article and 
provides that no further authentication or certification shall 
be necessary in order for such information to be admissible in 
evidence in proceedings in the Requesting State.
    Article 9 requires that the Requested State provide the 
Requesting State with copies of publicly available records or 
information of government departments and agencies. The 
Requested State may further provide copies of other records or 
information in the possession of a government department or 
agency but not publicly available, to the same extent and under 
the same conditions as it would to its own law enforcement or 
judicial authorities. Article 9 requires authentication of 
documents furnished in the manner specified in the request and 
confirms their admissibility in evidence in the Requesting 
State if so authenticated.
    Article 10 provides a mechanism for the Requesting State to 
invite the voluntary appearance and testimony in its territory 
of a person located in the Requested State. The Central 
Authority of the Requested State is required to invite the 
person to appear and to promptly inform the Requesting State of 
the person's response.
    Article 11 provides for the voluntary transfer to one State 
of a person in custody in the other State for purposes of 
assistance under the Treaty, provided that the person in 
question and both States agree. The article establishes the 
express authority and the obligation of the Requesting State to 
maintain the person transferred in custody unless other wise 
authorized by the Requested State. If further obligates the 
Requesting State to return the person to the Requested State as 
soon as circumstances permit or as otherwise agreed by the 
States, without the need for extradition proceedings.
    Article 12 provides that a person voluntarily appearing in 
the Requesting State pursuant to Article 10 or 11 shall be 
immune from criminal prosecution, detention, or any restriction 
of personal liberty, and shall not be subject to service of 
process while he is in the Requesting State. This ``safe 
conduct'' is limited to acts or convictions that preceded the 
person's departure from the Requested State. Any safe conduct 
provided under this article shall cease 15 days after the 
person's presence is no longer required in the Requesting State 
or whenever the person voluntarily enters that State after 
leaving it.
    Article 13 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items specified in a request.
    Article 14 requires the Requested State to use its best 
efforts to effect service of any documents relating to or 
forming part of a request under the Treaty. The article further 
requires that, unless otherwise agreed, any request for the 
service of a document inviting a person to appear in the 
territory of the Requesting State be received by the Requested 
State no later than 30 days before the scheduled appearance. 
The Requested State is required to return proof of service.
    Article 15 obligates the Requested State to execute 
requests for search, seizure, and delivery of any item to the 
Requesting State if the request includes the information 
justifying such action under the laws of the Requested State. 
The article further provides for the certification of the 
continuity of custody, and the identity and integrity of any 
such item in order to preserve its admissibility in evidence in 
the Requesting State. In addition, Article provides that the 
Central Authority of the Requested State may impose conditions 
on the transfer of the seized items to protect third-party 
interests in the property.
    Article 16 obliges the Requesting State to return to the 
Requested State as soon as possible any documents, records, or 
items furnished under the Treaty if the Requested State so 
requests.
    Article 17 provides that, if one State becomes aware of 
fruits or instrumentalities of offenses that are located in the 
territory of the other State and may be forfeitable or 
otherwise subject to seizure under the laws of the other State, 
it may so inform the other State. Article 17 also obligates the 
States to assist one another to the extent permitted by their 
respective laws in proceedings involving the forfeiture of the 
proceeds and instrumentalities of crime. The article further 
permits the States to agree to share forfeited assets, or the 
proceeds of their sale, to the extent permitted by their 
respective laws and upon such terms as they deem appropriate.
    Article 18 states that assistance and procedures provided 
in the Treaty shall not prevent the granting of assistance 
under any other international convention or bilateral agreement 
between the two States. The article also states that the Treaty 
shall not prevent the granting of assistance available under 
the national laws of either State.
    Article 19 provides that the Central Authorities of the two 
States shall consult, at times mutually agreed upon, concerning 
the most effective means to implement the provisions of the 
Treaty.
    Article 20 provides that the Treaty shall be ratified and 
shall enter into force upon exchange of instruments of 
ratification. The article also includes a provision that allows 
for requests under the Treaty to be actionable even if the 
relevant acts or omissions occurred prior to the date the 
Treaty entered into force. In addition, Article 20 allows 
either State to terminate the Treaty with six months written 
notice to the other State.
    In an exchange of diplomatic notes accompanying the Treaty, 
the two States agree to utilize one of three certificates of 
authenticity for business records or foreign public documents 
requested pursuant to the Treaty. The exchange of notes will 
enter into force at the same time as the Treaty.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegation, consisting of representatives from the Departments 
of Justice and State, and will be transmitted separately to the 
Senate Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
recommending approval of this Treaty by the Senate as soon as 
possible.
    Respectfully submitted,

                                                    Strobe Talbott.
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