[Senate Treaty Document 104-18]
[From the U.S. Government Publishing Office]
104th Congress 1st SENATE Treaty Doc.
Session
104-18
_______________________________________________________________________
TREATY WITH THE PHILIPPINES ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES ON MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT MANILA ON NOVEMBER 13, 1994
September 5, 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, September 5, 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 the Philippines on Mutual Legal
Assistance in Criminal Matters, signed at Manila on November
13, 1994. I transmit also, for the information of the Senate,
the report to 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 activity more effectively. The Treaty
will enhance our ability to investigate and prosecute a wide
variety of crimes, including drug trafficking and terrorism
offenses. 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 of testimony or statements of persons;
providing documents, records, and items 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 proceedings related to forfeiture of assets,
restitution, and collection of fines; and 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, August 2, 1995.
The President,
The White House.
I have the honor to submit to you the Treaty Between the
Government of the United States of America and the Government
of the Republic of the Philippines on Mutual Legal Assistance
in Criminal Matters (the ``Treaty''), signed at Manila on
November 13, 1994. 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 Argentina, the Bahamas, Canada, Italy,
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland,
Thailand, Turkey, the United Kingdom (concerning the Cayman
Islands), and Uruguay. Other similar treaties with Belgium,
Colombia, and Panama have been signed by the United States and
have received Senate advice and consent (but have not yet
entered into force). In addition, treaties with the United
Kingdom, South Korea, and Nigeria have been transmitted to the
Senate, where they await Senate consideration. The Treaty with
the Philippines contains many provisions similar to those in
other recent treaties. It will enhance our ability to
investigate and prosecute a variety of offenses, including drug
trafficking and terrorism offenses of particular interest to
the U.S. law enforcement community. The Treaty is designed to
be self-executing and will not require implementing
legislation.
Article 1 sets forth a non-exhaustive list of the major
types of assistance provided under the Treaty, including taking
the testimony or statements of persons; providing documents,
records and items 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 proceedings related to
forfeiture of assets, restitution, and collection of fines; and
rendering 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.
Article 1 states that assistance shall be provided without
regard to whether the conduct involved would constitute an
offense under the laws of the Requested State. This paragraph
is important because United States and Philippine criminal law
differ significantly and a requirement of dual criminality
(which is a standard aspect of extradition treaties but which
we prefer not to include in mutual legal assistance treaties)
would have limited the areas in which assistance is available.
Article 1 states explicitly that it is not intended to
create rights in private parties to obtain, suppress, or
exclude any evidence, or to impede the execution of a request.
Article 2 provides for the establishment of Central
Authorities and defines Central Authorities for purposes of the
Treaty. For the United States, Central Authority is the
Attorney General or a person designated by the Attorney
General. For the Republic of the Philippines, the Central
Authority is the Secretary of Justice or a person designated by
the Secretary of Justice. The article provides that the Central
Authorities shall communicate directly with one another, or
through diplomatic channels, for the purposes of the Treaty.
Article 3 sets forth the limited 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 or to a military offense that would not be a
crime under ordinary criminal law. In addition, a request may
be denied if its execution would prejudice the security or
similar essential interests of the Requested State, or if it is
not made in conformity with the Treaty.
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 as it deems
necessary. If the Requesting State accepts assistance subject
to these conditions, it is required to comply with the
conditions. If the Central Authority of the Requested State
denies assistance, it is required to inform 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 request. The article permits other forms of
request in emergency situations but requires written
confirmation within ten days thereafter unless the Central
Authority of the Requested State agrees otherwise. All requests
and supporting documents are to be submitted in English unless
otherwise agreed.
Article 5 requires the Central Authority of the Requested
State to execute the request promptly or to transmit it to the
authority having jurisdiction to do so. It provides that the
competent authorities of the Requested State shall do
everything in their power to execute a request, and that courts
or other competent authorities of the Requested State shall
have authority to issue subpoenas or other orders necessary to
execute the request. The Central Authority of the Requested
State must make all arrangements for and meet the costs of
representation of the Requesting State in any proceedings
arising out of an assistance request.
Requests are to be executed in accordance with the laws of
the Requested State except to the extent that the Treaty
provides otherwise. However, the method of execution specified
in the request is to 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 investigation,
prosecution, or proceeding, it may postpone execution or, after
consulting with the Central Authority of the Requesting State,
impose conditions on execution. If the Requesting State accepts
assistance subject to conditions, it shall comply with them.
Article 5 further requires the Requested State, if asked to
do so, to use its best efforts to keep confidential a request
and its contents, and to inform the Requesting State's Central
Authority if the request cannot be executed without breaching
confidentiality. This provides the Requesting State an
opportunity to decide whether to pursue the request or to
withdraw it in order to maintain confidentiality.
The article requires the Requested State's Central
Authority to respond to reasonable inquiries by the Requesting
State's Central Authority regarding the status of the execution
of a particular request; to report promptly to the Requesting
State's Central Authority the outcome of its execution; and, if
the request is denied, to inform the Requesting State's Central
Authority in writing of the reasons for the denial.
Article 6 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State shall pay all costs, except for the following items to be
paid by the Requesting State: fees of expert witnesses, costs
of translation, interpretation, and transcription, and
allowances and expenses related to travel of persons pursuant
to Articles 10 and 11.
Article 7 requires the Requesting State to comply with any
request by the Central Authority of the Requested State that
information or evidence obtained under the Treaty not be used
for proceedings other than those described in the request
without its prior consent. Further, if the Requested State's
Central Authority asks that information or evidence furnished
be kept confidential or be used in accordance with specified
conditions, the Requesting State must use its best efforts to
comply with the conditions. Once information is made public in
the Requesting State in accordance with either of these
provisions, no further limitations on use apply. Nothing in the
article prevents the use or disclosure of information to the
extent that there is an obligation to do so under the
Constitution of the Requesting State in a criminal prosecution.
The Requesting State is obliged to notify the Requested State
in advance of any such proposed use or disclosure.
Article 8 provides that a person in the Requested State
from whom evidence is requested pursuant to the Treaty shall be
compelled, if necessary, to appear and testify or produce
evidence. The article requires the Central Authority of the
Requested State, upon request, to furnish information in
advance about the date and place of the taking of testimony or
evidence.
Article 8 requires the Requested State to permit the
presence of persons specified in the request (such as the
accused, counsel for the accused, or other interested persons)
and, to the extent allowed by its laws, to permit them to
question the person giving the testimony or evidence. 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, Article 8 provides that the
testimony or evidence shall be taken and the claim made known
to the Central Authority of the Requesting State for resolution
by its authorities.
Finally, in order to ensure admissibility in evidence in
the Requesting State, Article 8 provides a mechanism for
authenticating evidence that is produced pursuant to or that is
the subject of testimony taken in the Requested State.
Article 9 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of government departments or agencies. The
Requested State may further provide copies of records or
information in the possession of a government department or
agency, but not publicly available, to the 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 such requests entirely or in part.
Article 9 also provides that no further authentication shall be
necessary for admissibility into evidence in the Requesting
State of official records where the official in charge of
maintaining them authenticates the records through the use of
Form B appended to this Treaty.
Article 10 provides a mechanism for the Requesting State to
invite the voluntary appearance in its territory of a person
located in the Requested State. The Requesting State shall
indicate the extent to which the expenses will be paid.
The Central Authority of the Requesting State has
discretion to determine that a person appearing in the
Requesting State shall not be subject to service of process or
be detained or subjected to any restriction of personal liberty
by reason of any acts or convictions that preceded his
departure from the Requested State. Any safe conduct provided
for by this article ceases seven days after the Central
Authority of the Requesting State has notified the Central
Authority of the Requested State that the person's presence is
no longer required, or if the person has left the Requesting
State and voluntarily returned to it. An extension of up to
fifteen days for good cause may be granted by the Requesting
State's Central Authority in its discretion.
Article 11 provides for 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 deposition taken in the presence
of the defendant), provided that the person in question and the
Central Authority of the Requested State agree. The article
also provides for voluntary transfer of a person in the custody
of the Requesting State to the Requested State for purposes of
assistance under the Treaty (for example, a defendant in the
Requesting State may be transferred for purposes of attending a
witness deposition in the Requested State), if the person
consents and if the Central Authorities of both States agree.
Article 11 establishes both the express authority and the
obligation of the receiving State to maintain the person
transferred in custody unless otherwise authorized by the
sending State. The return of the person transferred is subject
to terms and conditions agreed to by the Central Authorities,
and the sending State is not required to initiate extradition
proceedings for return of the person transferred. The person
transferred receives credit for time served in the custody of
the receiving State.
Article 12 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items specified in a request.
Article 13 obligates the Requested State to use its best
efforts to effect service of any document relating, in whole or
in part, to a request under the Treaty. A request for the
service of a document requiring a person to appear in the
Requesting State must be transmitted a reasonable time before
the scheduled appearance. Proof of service is to be provided in
the manner specified in the request.
Article 14 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.
It provides that, upon request, every official who has custody
of a seized item is required to certify, through the use of
Form C, the continuity of custody, the identity of the item,
and the integrity of its condition. No further certification is
required. The certificate is admissible in evidence in the
Requesting State. The article further provides that the Central
Authority of the Requested State may impose terms and
conditions deemed necessary to protect third party interests in
items to be transferred.
Article 15 requires the Requesting State's Central
Authority, upon request of the Requested State's Central
Authority, to return documents, records, or items obtained in
the execution of a request as soon as possible or, if agreed by
the Central Authorities, to dispose of such documents, records,
or items in a mutually acceptable manner.
Article 16 provides that, if the Central Authority of one
Contracting Party becomes aware of proceeds or
instrumentalities of offenses that are located in the other
Contracting Party and may be forfeitable or otherwise subject
to seizure, it may so inform the Central Authority of that
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 that
provided the information of any action taken.
Article 16 also obligates the Contracting Parties to assist
each other to the extent permitted by their respective laws in
proceedings relating to forfeiture of proceeds and
instrumentalities of offenses, restitution to victims of crime,
and collection of fines imposed as sentences in criminal
prosecutions. The Party having custody over proceeds or
instrumentalities of offenses is required to dispose of them in
accordance with its laws. Either Party may share forfeited
assets, or the proceeds of their sale, to the extent not
prohibited by the transferring Party's laws and upon such terms
as it deems appropriate.
Article 17 states that assistance and procedures provided
in the Treaty shall not prevent either Contracting Party from
granting assistance through the provisions of other applicable
international agreements or through the provisions of its
national laws.
Article 18 provides that the Central Authorities shall
consult, at times mutually agreed, to promote the most
effective use of the Treaty, and may agree upon such practical
measures as may be necessary to facilitate Treaty
implementation.
Article 19 provides that the Treaty shall apply to any
request presented after the date of its entry into force
regardless of whether the relevant acts or omissions occurred
prior to that date.
Article 20 provides that the Treaty shall be subject to
ratification, instruments of ratification shall be exchanged in
Manila as soon as possible, and the Treaty shall enter into
force upon the exchange of the instruments of ratification.
Article 20 further provides that either Party may terminate the
Treaty by six months' written notice of the other Party.
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
favoring approval of this Treaty by the Senate as soon as
possible.
Respectfully submitted,
Peter Tarnoff.