[Senate Treaty Document 105-42]
[From the U.S. Government Publishing Office]
105th Congress Treaty Doc.
SENATE
2d Session 105-42
_______________________________________________________________________
TREATY WITH BRAZIL ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL ON MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT BRASILIA ON OCTOBER 14, 1997
April 28, 1998.--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, April 28, 1998.
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 Federative Republic of Brazil on Mutual Legal
Assistance in Criminal Matters, signed at Brasilia on October
14, 1997. 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 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 those involved
in terrorism, other violent crimes, drug trafficking, money
laundering, and other ``white-collar'' crime. The Treaty is
self-executing, and will not require new legislation.
The Treaty provides for a broad range of cooperation in
criminal matters. Mutual assistance available under the Treaty
includes:
(1) Locating or identifying persons or items; (2) serving
documents; (3) taking testimony or statements of persons; (4)
transferring persons in custody for testimony or other
purposes; (5) providing documents, records, and items; (6)
executing requests for searches and seizures; (7) assisting in
proceedings related to immobilization and forfeiture of assets,
restitution, and collection of fines; and (8) any other form of
assistance not prohibited by the laws of the Requested State.
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.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
between the Government of the United States of America and the
Government of the Federative Republic of Brazil on Mutual Legal
Assistance in Criminal Matters (``the Treaty''), signed at
Brasilia on October 14, 1997. 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 many provisions similar to those in the other
treaties.
The Treaty will enhance our ability to investigate and
prosecute a variety of offenses, including drug trafficking,
terrorism, other violent crimes, and money laundering and other
white-collar crime. The Treaty is designed to be self-executing
and will not require new 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 items; locating or identifying persons or items;
serving documents; transferring persons in custody for
testimony or other purposes; executing requests for searches
and seizures; assisting in proceedings related to
immobilization and forfeiture of assets, restitution, and
collection of fines; and providing any other form of assistance
not prohibited by the laws of the Requested States.
The scope of the Treaty includes not only the
investigation, prosecution, and prevention of criminal
offenses, but also forfeiture, restitution, and collection of
fines, and other proceedings related to criminal matters, which
may be civil or administrative in nature. Moreover, assistance
under the Treaty is to be provided without regard to dual
criminality (i.e., whether the conduct involved would
constitute an offense under the laws of both States).
Article 1(4) states that the Parties recognize the
particular importance of combating serious criminal activities,
including money laundering and the illicit trafficking in
firearms, ammunition, and explosives, and that the Parties
shall provide each other with assistance with respect to such
matters. However, the paragraph was not intended by the
negotiators to require the Parties to give priority or special
treatment to assistance with respect to the specified offenses;
accordingly, the paragraph expressly provides that the
commitment to provide assistance regarding such offenses
imposes no limitation on the scope of assistance established
under the Article.
Article 1 also states explicitly that the Treaty is
intended solely for mutual legal assistance between the
Parties. The Treaty provisions shall not give rise to a right
on the part of any private person to obtain, suppress, or
exclude any evidence, or to impeded the execution of a request.
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 shall
be the Attorney General or a person designated by the Attorney
General. For Brazil, the Central Authority shall be the
Ministry of Justice. The Article provides that the Central
Authorities shall make and receive requests pursuant to the
Treaty, and that the Central Authorities shall communicate
directly with one another for purposes of the Treaty.
Article 3 sets forth the circumstances under which the
Central Authority of the Requested State may deny assistance
under the Treaty. A request may be denied if it relates to a
military offense that would not be an offense under ordinary
criminal law; if its execution would prejudice the security or
similar essential interests of the Requested State; or if the
request 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 conditions, it is required to comply with them. If the
Central Authority of the Requested State denies assistance, it
must inform the Central Authority of the Requesting State of
the reasons for the denial.
Article 4 prescribes the form and contents of requests
under the Treaty, specifying in detail the information required
in each request. The Article provides that requests for
assistance shall be in writing except that the Central
Authority of the Requested State may accept a request in
another form in urgent situations. In such cases, unless the
Central Authority of the Requested State agrees otherwise, the
request must be confirmed in writing within thirty days
thereafter. Unless otherwise agreed, all requests and
supporting documents shall be in the language of the Requested
State.
Article 5 requires that the Central Authority of the
Requested State promptly execute requests or, when appropriate,
transmit them to the authority having jurisdiction to do so.
The Article provides that the competent authorities of the
Requested State shall do everything in their power to execute a
request. The Courts of the Requested State shall issue
subpoenas, search warrants, or other orders necessary to
execute the request.
The Central Authority of the Requested State must make all
necessary arrangements for and meet the costs of representation
of the Requesting State in any proceedings arising out of a
request for assistance pursuant to the Treaty. Under Article
5(3), 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 a request would interfere with an ongoing
criminal investigation, prosecution, or proceeding in that
State, it may postpone execution or, after consultations with
the Central Authority of the Requesting State, impose
conditions on such execution. If the Requesting State accepts
assistance subjects to such conditions, it must comply with
them.
Article 5(5) further requires the Requested State, if so
requested by the Requesting State, to use its best efforts to
keep confidential a request and its contents. If the request
cannot be executed without breaching such confidentiality, the
Central Authority of the Requested State must so inform the
Central Authority of the Requesting State. This provides the
Requesting States with the opportunity to decide whether to
pursue the request or to withdraw it in order to maintain
confidentiality.
Finally, Article 5 requires the Central Authority of the
Requested State to respond to reasonable inquiries by the
Central Authority of the Requesting State concerning progress
toward execution of the request; to promptly inform such
Central Authority of the outcome of the execution of the
request; and, if the execution of the request is denied,
delayed, or postponed, to inform such Central Authority of the
reasons therefor.
Article 6 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State shall pay all such costs, except for the following items,
which shall be paid by the Requesting State: fees of expert
witnesses, the costs of translation, interpretation, and
transcription, and the allowances and expenses related to the
travel of persons pursuant to Articles 10 and 11.
Article 7 provides that the Central Authority of the
Requested State may request that the Requesting State not use
any information or evidence obtained under the Treaty in any
investigation, prosecution, or proceeding other than that
described in the request without the prior consent of the
Central Authority of the Requested State. The Central Authority
of the Requested State may request that information or evidence
furnished under the Treaty be kept confidential or be used only
subject to terms and conditions it may specify. If the
Requesting State accepts the information or evidence subject to
such conditions, it shall comply with the conditions. These
limitations on use to not preclude a constitutionally required
disclosure or use of information in a criminal prosecution.
Advance notice by the Requesting State of such disclosure or
use is required. Once information or evidence has been made
public in the Requesting State in a manner consistent with the
other provisions of the Article, no further limitations on use
apply, and the information or evidence may thereafter be used
for any purpose.
Article 8 provides that a person in the Requested State
from whom evidence is required pursuant to the Treaty shall be
compelled, if necessary, to appear and testify or produce
documents, records, or items. The Article requires the Central
Authority of the Requested State, upon request, to inform
theRequesting State in advance about the date and place of the taking
of testimony or evidence.
Article 8(3) also requires the Requested State to permit
the presence of persons designated in the request during the
execution of the request, and to allow such persons to present
questions to be posed to the person giving the testimony or
evidence. Article 8(4) provides that, 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
nonetheless be taken and the claim made known to the Central
Authority of the Requesting State so that the claim may be
resolved by the authorities of that State.
Finally, Article 8(5) provides a mechanism for
authentication of documentary evidence produced pursuant to
this Article. A form for use regarding business records is
included as an appendix to the Treaty (Form A). Records
authenticated by means of such form shall be admissible in
evidence in the Requesting State.
Article 9 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of authorities in the Requested State. The
Requested State may further provide copies of any records,
including documents or information in any form, that are in the
possession of authorities in that State, but that are not
publicly available, to the same extent and under the same
conditions as such copies would be available to its own law
enforcement or judicial authorities. However, the Requested
State has the discretion to deny such requests entirely or in
part. Such official records may be authenticated by the
official in charge of maintaining them through the use of Form
B appended to the Treaty. Documents authenticated through the
use of such form shall be admissible in evidence in the
Requesting State.
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 is
required to indicate the extent to which the expenses of the
person will be paid. The Central Authority of the Requested
State is required to invite the person to appear and promptly
to inform the Requesting State of the person's response.
Article 10 further provides that the Central Authority of
the Requesting State has discretion to determine that a person
appearing in that State pursuant to this Article shall not be
subject to service of process, detained, or subjected to any
restriction of personal liberty by reason of acts or
convictions that preceded the person's departure from the
Requested State. The Central Authority of the Requesting State
is required to notify the Requested State's Central Authority
whether such safe conduct shall be extended. Any safe conduct
provided for by this Article shall cease seven days after
notification by the Central Authority of the Requesting State
to its counterpart in the Requested State that the person's
presence is no longer required. The safe conduct shall also
cease if the person leaves the Requesting State but voluntarily
returns to it. An extension of up to fifteen days may be
granted by the Requesting State's Central Authority in its
discretion.
Article 11 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, provided that the
person in question and the Central Authorities of both States
agree. 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. The Article
also provides for the transfer of a person in the custody of
the Requesting State to the Requested State for purposes of
assistance under the Treaty, subject to the consent of the
person and the Central Authorities of both States. For example,
a defendant in the Requesting State may be transferred for
purposes of attending a witness deposition in the Requested
State.
Article 11(3) further establishes the express authority and
the obligation of the receiving State to maintain the person
transferred in custody unless otherwise authorized by the
sending State. It further obligates the receiving State to
return the person to the custody of the sending State as soon
as circumstances permit or as otherwise agreed by both States,
and the sending State need not initiate extradition proceedings
for return of the person transferred. The person transferred
shall receive credit toward service of the sentence imposed in
thesending State 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 documents relating, in whole
or in part, to any request for assistance under the Treaty. A
request for the service of a document requiring a person to
appear before an authority in the Requesting State must be
transmitted within a reasonable time prior to the scheduled
appearance. The Requested State is required to return proof of
service 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.
The Article provides that, upon request, every official of the
Requested State who has had custody of a seized item shall
certify, through the use of Form C appended to the Treaty, the
description of the item, the continuity of its custody, and the
integrity of its condition. No further certification is
required, and the certificate shall be admissible evidence in
the Requesting State. Article 14 further provides that the
Central Authority of the Requested State may impose upon the
Requesting State terms and conditions deemed necessary to
protect third party interests in items to be transferred.
Article 15 requires the Central Authority of the Requested
State, upon request of its counterpart in the Requesting State,
to return as soon as possible any documents, records, or items
furnished to it in execution of a request under the Treaty.
Article 16 provides that, if the Central Authority of one
Party becomes aware of proceeds or instrumentalities of
offenses that are located in the territory of the other Party
and may be forfeitable or otherwise subject to seizure under
the laws of that Party, it may so inform the Central Authority
of that Party. If that Party has jurisdiction, it may present
this information to its authorities for a determination whether
any action is appropriate under its laws, and such authorities
shall, through their Central Authority, notify the other Party
of any action taken.
Article 16 also obligates the 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 the collection of fines imposed as sentences in criminal
proceedings. Such assistance may include action to temporarily
immobilize the proceeds or instrumentalities of crime pending
further proceedings. A Party having custody over proceeds or
instrumentalities of offenses is required to dispose of them in
accordance with its laws. Either Party may transfer all or part
of such assets, or the proceeds of their sale, to the other
Party, to the extent permitted by the transferring Party's laws
and upon such terms as it deems appropriate.
Article 17 states that assistance and procedures set forth
in the Treaty shall not prevent either Party from granting
assistance to the other Party under other applicable
international agreements, or through the provisions of its
national laws. The Parties may also provide assistance to each
other through the provisions of any bilateral arrangement,
agreement, or practice that may be applicable.
Article 18 provides that the Central Authorities of the
parties shall consult, at times mutually agreed upon, to
promote the most effective use of the Treaty, and may agree on
such practical measures as may be necessary to facilitate
implementation of the Treaty.
Article 19 states that the Treaty shall apply to requests
presented after the date of its entry into force, even if the
acts or omissions constituting the offense occurred before that
date.
Article 20 provides that the Treaty is subject to
ratification and shall enter into force upon the exchange of
the instruments of ratification. The Article also provides that
the Parties may amend the Treaty by mutual agreement, and any
such amendment would enter into force upon a written exchange
of notifications between the Parties, through the diplomatic
channel, that all domestic requirements for its entry into
force have been completed. Article 20 further provides that
either Party may terminate the Treaty by written notice to the
other Party. Such termination would take effect six months
following the date of notification.
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.
Madeleine Albright.