[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.





                             
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