[Senate Treaty Document 108-12]
[From the U.S. Government Publishing Office]
108th Congress Treaty Doc.
1st Session SENATE 108-12
_______________________________________________________________________
MUTUAL LEGAL ASSISTANCE TREATY WITH JAPAN
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE UNITED STATES OF AMERICA AND JAPAN ON MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON AUGUST 5, 2003;
INCLUDING A RELATED EXCHANGE OF NOTES
November 24, 2003.--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
________
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
19-118
LETTER OF TRANSMITTAL
----------
The White House, November 24, 2003.
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 Japan on Mutual Legal
Assistance in Criminal Matters, signed at Washington on August
5, 2003. I transmit also, for the information of the Senate, a
related exchange of notes and 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 negotiated by the United States in order to
counter criminal activities more effectively. The Treaty should
be an effective tool to assist in the investigation and
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 testimony, statements, or items; examining
persons, items, or places; locating or identifying persons,
items, or places; providing items from governmental departments
or agencies; inviting persons to testify in the requesting
Party; transferring persons in custody for testimony or other
purposes; assisting in proceedings related to forfeiture and
immobilization of assets; and any other form of assistance
permitted under the laws of the requested Party and agreed upon
by the Central Authorities of the two Contracting Parties.
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,
Washington, October 27, 2003.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
Between the United States of America and Japan on Mutual Legal
Assistance in Criminal Matters (``the Treaty''), and a related
exchange of notes, both signed at Washington on August 5, 2003.
I recommend that the Treaty be transmitted to the Senate for
its advice and consent to ratification, and the exchange of
notes be submitted for the information of the Senate.
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 in other treaties and includes the essential
provisions sought by the United States. It is accompanied by an
exchange of notes (described below), which relates to Article 2
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. Article 1(2) contains a non-exhaustive list of the
major types of assistance to be provided under the Treaty,
including taking testimony, statements or items; examining
persons, items or places; locating or identifying persons,
items or places; providing items in the possession of
governmental departments or agencies; presenting an invitation
to a person whose appearance in the requesting Party is sought;
transfer of a person in custody for testimony or other
purposes; assisting in proceedings related to forfeiture and
immobilization of proceeds or instrumentalities of criminal
offenses; and any other assistance permitted under the laws of
the requested Party and agreed upon between the Central
Authorities of the Contracting Parties.
The scope of the Treaty includes not only assistance
provided in connection with the investigation, prosecution, and
prevention of criminal offenses, but also in certain related
proceedings. Significantly, Article 1(3) permits assistance in
connection with an administrative investigation of suspected
criminal conduct (e.g., an investigation by the Securities and
Exchange Commission of suspected securities fraud), in such
cases and upon such conditions as the requested Party deems
appropriate. The Central Authority of the requesting Party
would be required to certify that the authority conducting the
investigation has statutory or regulatory authority to conduct
the investigation of facts that could constitute criminal
offenses, and that the testimony, statements or items to be
obtained will be used in the requesting Party in an
investigation, prosecution or other proceeding in criminal
matters, including a decision whether to prosecute.
Article 1(4) states that assistance is to be provided
without regard to whether the conduct involved would constitute
an offense under the laws of the requested Party, except as
otherwise provided in the Treaty (see Article 3 below).
Article 1(5) states explicitly that the Treaty does not
create a new right or affect a pre-existing right on the part
of any private person to impede the execution of a request or
exclude any evidence.
Article 2 provides for the designation of Central
Authorities and defines 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 Japan, the Central Authority is the minister of
Justice or the National Public Safety Commission or their
designees. The authorization for Japan to designate two
agencies is necessary because of the respective jurisdictions
of the two agencies concerned. The article provides that the
Central Authorities are to communicate directly with one
another for the purposes of the Treaty.
This Treaty is accompanied by an exchange of diplomatic
notes that further sets forth the specific kinds of requests
that will be handled by each agency on the Japanese side. The
notes also provide for consultations between the United States
and Japan before the implementation of any changes in such
designations.
In the exchange of notes Japan has designated the Minister
of Justice as the Central Authority with respect to requests
made by the United States. With respect to requests made by
Japan, the Minister of Justice will also serve as the Central
Authority for requests submitted by public prosecutors or
judicial police officials, or if a request requires examination
of a witness in a U.S. court. The Central Authority in
connection with requests made by police officials or imperial
guard officers will be the National Public Safety Commission or
its designee. The Minister of Justice and the National Public
Safety Commission will establish a mechanism to avoid
unnecessary duplication of requests and to facilitate efficient
and speedy provision of assistance.
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 it relates to a
political offense, if the execution of a request would impair
security or other essential interests, if a request does not
conform to the requirements of this Treaty, or if the conduct
would not constitute a criminal offense under the laws of the
requested Party and execution of the request requires a court
warrant or other compulsory measures under the laws of the
requested Party.
Before denying assistance under Article 3(1), the Central
Authority of the requested Party is required to consult with
its counterpart in the requesting Party to consider whether
assistance can be given subject to such conditions as the
Central Authority of the requested Party deems necessary. If
the requesting Party accepts assistance subject to these
conditions, it is required to comply with them. If the Central
Authority of the requested Party denies assistance, it is
required under Article 3(3) to inform the Central Authority of
the requesting Party 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. A request for assistance must be in
writing, except that a request may be accepted in another form
if the Central Authority of the requested Party considers it
appropriate to receive a request by other reliable means. In
such cases, a supplementary confirmation of the request may be
required in writing.
Article 5 concerns execution of requests. Article 5(1)
requires the Central Authority of the requested Party to
execute the request promptly or, where appropriate, to transmit
it to the authority having jurisdiction to do so. It provides
that the competent authorities of the requested Party must do
everything in their power to ensure the execution of a request.
Under Article 5(2), the Central Authority of the requested
Party must make all arrangements for execution of a request in
the requested Party.
Article 5(3) provides that requests are to be executed in
accordance with the provisions of this Treaty and the laws of
the requested Party. The manner or particular procedure
described in a request referred to in paragraph 3(2) (taking
testimony, statements or items), 3(6) (examination of persons,
items or places) or 3(8) (particular procedures) of Article 4
shall be followed to the extent it is in accordance with the
laws of the requested Party, and where it is possible. Article
5(4), provides that courts in the United States shall have
authority to issue subpoenas, search warrants, or other orders
necessary to execute the request. In Japan judges will have
similar authority to issue the necessary warrants or orders.
Under Article 5(5), if the Central Authority of the
requested Party determines that execution of a request would
interfere with an ongoing criminal investigation, prosecution,
or proceeding in that State, it may postpone execution or make
execution subject to conditions deemed necessary after
consultations with the Central Authority of the requesting
Party. If the requesting Party accepts such conditions, it must
comply with them.
Article 5(6) further requires the requested Party, if so
requested by the Central Authority of the requesting Party, to
make its best efforts to keep confidential the fact a request
has been made, its contents, the outcome of executing a request
and other relevant information. The Central Authority of the
requested Party must inform the requesting Party's Central
Authority if the request cannot be executed without disclosure
of such information. This provides the requesting Party an
opportunity to decide whether to pursue the request or to
withdraw it in order to maintain confidentiality.
This article also requires the requested Party's Central
Authority to respond to reasonable inquiries by the requesting
Party's Central Authority concerning progress toward execution
of a particular request; to promptly inform the requesting
Party's Central Authority of the outcome of its execution; and,
if the request cannot be executed in whole or in part, to
inform the requesting Party's Central Authority of the reasons
therefor.
Article 6 apportions between the two Parties the costs
incurred in executing a request. It provides that the requested
Party must pay all costs relating to the execution of a
request, except for the following items to be paid by the
requesting Party: fees of expert witnesses; costs of
translation, interpretation and transcription; and allowances
and expenses related to travel of persons pursuant to Articles
14 and 15. The article further provides that, in the event that
a request entails extraordinary expenses, consultation between
Central Authorities shall occur in order to determine the terms
and conditions for execution.
Article 7 requires the requesting Party, if so requested,
not to use any testimony, statements or items provided under
the Treaty for any purposes other than those described in the
request without the prior consent of the requested Party.
Further, if the requesting Party accepts information or
evidence under the Treaty, subject to a request by the
requested Party's Central Authority that it be kept
confidential or be used in accordance with specified terms and
conditions, the requesting Party must comply with the
conditions. Nothing in the Article prevents the use or
disclosure of testimony, statements or items provided under the
Treaty to the extent that there is an obligation to do so under
the Constitution of the requesting Party in a criminal
prosecution. The requesting Party is obliged to notify the
requested Party in advance of any such proposed use or
disclosure. Once information is made public in the requesting
Party in accordance with either of these provisions, it may
thereafter be used for any purpose.
Article 8 provides that items provided under the Treaty be
transported and maintained in accordance with the conditions
specified by the requested Party, including the conditions
deemed necessary to protect third-party interests. In
particular, the requesting Party shall not examine an item
without the consent of the requested Party, if the examination
could impair the integrity of the item. The article also
provides that the requesting Party return items provided under
the Treaty after such items have been used for the purpose
described in a request.
Article 9(1) provides that the requested Party shall take
testimony, statements or items and shall employ, if necessary,
compulsory measures in order to do so. This is one of the
principal forms of assistance available under the Treaty. Under
Article 9(2), the requested Party is obliged to make its best
efforts to make possible the presence of such persons as may be
specified in a request during the execution of a request, and
allow such persons to question the witness. In the event that
direct questioning is not permitted, written questions may be
posed to the person from whom testimony, statements or items
are sought. Article 9(3) permits a request for the search and
seizure of any item for the requesting Party, if such
compulsory measures are necessary and the request includes
information justifying the use of those measures under the laws
of the requested Party. In the event that a person from whom
testimony, statements or items are sought asserts a claim of
immunity, incapacity, or privilege under the laws of the
requesting Party, Article 9(4) provides that the testimony or
evidence is to be taken and the claim made known to the Central
Authority of the requesting Party for resolution by its
competent authorities.
Article 10 requires the requested Party to examine persons,
items or places, and to employ compulsory measures, if
necessary, in order to do so. The requested Party shall make
its best efforts to make possible the presence of such persons
as may be specified in a request. Examinations may include the
taking of photographs or creation of video records of persons,
items or places, and may involve the participation of expert
witnesses.
Article 11 states that the requested Party shall make its
best efforts to locate or identify persons, items or places.
Article 12 requires the requested Party to provide the
requesting Party with items that are in the possession of
governmental departments and agencies in the requested Party
and are available to the general public. The requested Party
may also provide items that are in the possession of a
governmental department or agency, and are not available to the
general public, to the same extent and under the same
conditions as such items would be available to its own
investigative and prosecuting authorities.
Article 13 covers the authentication of documents and
certification of the chain of custody of items seized during
the execution of a request. Article 13(1) provides that
testimony, statements or items provided may be authenticated by
the requested Party by use of a form in the Attachment to the
Treaty. The Attachment (see below) is an integral part of the
Treaty. Testimony, statements or items so authenticated shall
be admissible in evidence in proceedings in the requesting
Party in accordance with the relevant provisions of the
Attachment. Article 13(2) provides that the continuity of
custody of items seized, the identity of the items and the
integrity of their condition may be certified by the requested
Party by use of a form in the Attachment. Such certification
shall also be admissible in evidence in proceedings in the
requesting Party.
Article 14(1) provides a mechanism for the requesting Party
to ask for the voluntary appearance in its territory of a
person located in the requested Party whose appearance is
sought before an appropriate authority in the requesting Party.
The requesting Party must indicate the extent to which the
expenses will be paid and the Central Authority of the
requested Party must promptly inform its counterpart in the
requesting Party of the person's response. Article 14(2) states
that a person who consents to appear before the appropriate
authority in the requesting Party pursuant to this Article
shall not be subject to detention or any restriction of
personal liberty by reason of any conduct or conviction that
preceded that person's departure from the requested Party.
Under Article 14(3), any safe conduct provided for by this
Article ceases seven days after the person was notified by the
appropriate authority of the requesting Party that the person's
presence is no longer required, or if the person has left the
requesting Party and voluntarily returns to it, or if the
person fails to appear before the appropriate authority on the
scheduled appearance date. The Central Authority of the
requesting Party must notify the Central Authority of the
requested Party when safe conduct under this Article ceases.
Article 15(1) provides for the temporary transfer of a
person in the custody of one Contracting Party to the other for
testimony or other purposes under the Treaty, if the person
consents and the Central Authorities of both Parties agree,
when permitted under the laws of the requested Party. For
example, a witness incarcerated in one country may be
transferred to the other country to give testimony in the
presence of a defendant facing criminal charges in that other
country.
Article 15(2) sets forth both the express authority and the
obligation of the receiving Party to maintain the person
transferred in custody unless otherwise authorized by the
sending Party. The person transferred must be returned
immediately to the custody of the sending Party or as otherwise
agreed by the Central Authorities, and the sending Party 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 Party.
Article 15(3) provides that the person transferred to the
receiving Party shall enjoy the safe conduct provided for in
Article 14 of the Treaty until the person's return to the
sendingParty, unless the Central Authorities agree otherwise
and the person consents.
Article 16(1) obligates the Parties to assist each other to
the extent permitted by their respective laws in proceedings
relating to the forfeiture of the proceeds or instrumentalities
of criminal offenses, including action to temporarily
immobilize the proceeds or instrumentalities pending further
proceedings.
Article 16(2) provides that, if the Central Authority of
one Party becomes aware that proceeds or instrumentalities of
criminal 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 the Party that provided the information of any
action taken.
Under Article 16(3), the Party having custody over proceeds
or instrumentalities of criminal offenses is required to retain
or dispose of them in accordance with its laws. The custodial
Party may transfer such proceeds or instrumentalities, in whole
or in part, to the other Contracting Party, to the extent
permitted by the transferring Party's laws and upon such
conditions as it deems appropriate.
Article 17 states that assistance and procedures provided
in the Treaty do not prevent either Party from granting
assistance to the other through the provisions of other
applicable international agreements or through the provisions
of its national laws.
Article 18 provides that the Central Authorities shall hold
consultations for the purpose of facilitating speedy and
effective assistance under the Treaty, and may agree upon such
measures as may be necessary for this purpose. The Contracting
Parties shall, if necessary, hold consultations on any matter
that may arise in the Treaty's interpretation or
implementation.
Article 19 provides that the Treaty is subject to
ratification and that the instruments are to be exchanged as
soon as possible. The Treaty then enters into force on the
thirtieth day after the date of the exchange of instruments.
Article 19(3) provides that the Treaty applies to requests
presented on or after the date of its entry into force, whether
the relevant acts occurred before, on or after that date.
Article 19(4) further provides that either Contracting Party
may terminate the Treaty by giving six months written notice to
the other Contracting Party.
The Attachment contains the forms for authentication of
business records and foreign public documents and certification
with respect to seized items, as provided in Article 13 above.
The Attachment is an integral part of the Treaty.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate as soon as
possible.
Respectfully submitted,
Colin L. Powell.