    [Senate Treaty Document 108-27]
    [From the U.S. Government Publishing Office]

    108th Congress
     2d Session                      SENATE                     Treaty Doc.
                                                                     108-27
    _______________________________________________________________________

                  MUTUAL LEGAL ASSISTANCE TREATY WITH GERMANY

                                   __________

                                    MESSAGE

                                      from

                       THE PRESIDENT OF THE UNITED STATES

                                  transmitting

    TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE FEDERAL REPUBLIC OF
       GERMANY ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT
        WASHINGTON ON OCTOBER 14, 2003; AND A RELATED EXCHANGE OF NOTES

     November 16, 2004.--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, November 16, 2004.
    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 the Federal Republic of
    Germany on Mutual Legal Assistance in Criminal Matters, signed
    at Washington on October 14, 2003, and a related exchange of
    notes. 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 being negotiated by the United States 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 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 the testimony or statements of persons;
    providing documents, records, and articles of evidence;
    locating or identifying persons; serving documents;
    transferring persons in custody for testimony or other
    purposes; executing requests for searches and seizures;
    undertaking telecommunications surveillance, undercover
    investigations, and controlled deliveries; assisting in
    proceedings related to immobilization and forfeiture of assets,
    restitution to the victims of crime and collection of fines;
    and any other form of assistance not prohibited by the laws of
    the State from whom the assistance is requested.
        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,
                                                         June 14, 2004.
    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 Federal Republic
    of Germany on Mutual Legal Assistance in Criminal Matters
    (``the Treaty''), signed at Washington on October 14, 2003, and
    a related exchange of notes. I recommend that the Treaty and
    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 between the United States and a number of
    other countries. This Treaty contains many provisions similar
    to those other treaties and all by the essential provisions
    sought by the United States. It is accompanied by an exchange
    of notes which relates to Articles 9, 10, and 11 of the Treaty
    and which forms an integral part 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. The Parties shall afford assistance in criminal
    investigations and proceedings, which, in the case of Germany,
    include those relating to regulatory offenses under antitrust
    law. Assistance also shall be granted for investigations and
    proceedings relating to regulatory offenses as a whole, to the
    extent they may lead to court proceedings or may be referred
    for criminal prosecution in the Requesting State and would
    constitute criminal offenses in the Requested State. This will
    enable assistance for investigations by, for example, the
    Securities and Exchange Commission or the Federal Trade
    Commission.
        Article 1(2) 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 items;
    locating or identifying persons; serving documents;
    transferring persons in custody for testimony or other
    purposes; executing requests for searches and seizures;
    undertaking special investigative techniques, such as
    telecommunications surveillance, undercover investigations, and
    controlled deliveries; assisting in proceedings related to
    immobilization and forfeiture of assets; assisting in
    proceedings related to restitution to the victims of crime and
    collection of fines; and any other form of assistance not
    prohibited by the laws of the Requested State. This is the
    first U.S. bilateral MLAT to include special investigative
    techniques among permissible types of assistance.
        Paragraph 3 establishes that requests may be initiated or
    executed by any competent authority designated in the Appendix
    to the Treaty. For both countries, state as well as federal
    officials are listed as competent authorities.
        Article 1(4) provides that assistance does not depend upon
    whether the conduct that is the subject of the criminal
    investigation or proceeding in the Requesting State also would
    constitute a criminal or regulatory offense under the laws of
    the Requested State, except in limited circumstances addressed
    separately in the Treaty (e.g., search and seizure under
    Article 11) .
        Paragraph 5 states that a request under the Treaty is
    necessary in investigations or proceedings involving compulsory
    process in the other State. Where denial of a request or delay
    in responding to it may jeopardize the success of the
    investigation or proceeding in the Requesting State, the
    Parties are obliged to consult in an effort to achieve a
    satisfactory result, but if, after 40 days from the
    commencement of such consultations, no such result is reached,
    then the Parties' obligations under the Treaty are deemed
    fulfilled, and other, non-treaty-based measures may be pursued.
        Article 1(6) states explicitly that the Treaty does not
    create a right on the part of any private person to obtain,
    suppress or exclude any evidence, or to impede the execution of
    a request. Paragraph 7 extends Treaty coverage to criminal
    investigations and proceedings related to foreign exchange
    matters only to the extent subsequently agreed between the
    Parties.
        Article 2 provides for the designation of Central
    Authorities and identifies who will fulfill this
    responsibility. For the United States, the Central Authority is
    the Attorney General or a person designated by the Attorney
    General. For the Federal Republic of Germany, the Central
    Authority is the Federal Ministry of Justice. The article
    provides that the Central Authorities are to communicate
    directly with one another for the purposes of the Treaty.
    However, in cases of urgency, the German Federal Cartel Office
    or a German state Ministry of Justice may communicate directly
    with the U.S. Department of Justice.
        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 its execution would
    prejudice the security or other essential public interests of
    the Requested State. During the course of negotiations, Germany
    indicated that it would review on a case-by-case basis whether
    to deny assistance to a capital prosecution in the United
    States. Several other countries with which the United States
    has concluded MLATs in recent years, including Australia,
    Austria and Luxembourg, have taken a similar position.
        Article 4 obligates the Requested State to effect service
    of any document transmitted to it for this purpose by the
    Requesting State, provided that it is received at least one
    month before the scheduled court appearance of the person to be
    served. Proof of service is to be provided by means of a
    receipt or an official declaration. A person who is not a
    national of the Requesting State, and who does not answer a
    summons served upon him or her, is not subject to penalty or
    other coercive measures.
        Article 5 provides a mechanism for a Requesting State to
    extend an invitation to a witness or expert located in the
    Requested State to appear at a proceeding outside the latter's
    territory. The Requesting State mut indicate the extent to
    which the person's expenses will be paid.
        Article 6 addresses safe conduct. A witness or expert
    appearing in the Requesting State pursuant to a Treaty request
    may not be subjected to suit or detained with respect to acts
    that preceded departure from the Requested State. A person who
    appears to answer for acts forming the subject of a criminal
    proceeding is similarly not subject to suit or detention except
    to the extent specified in the summons. In both cases, safe
    conduct ceases 15 days after the appearance, if the person has
    not left the Requesting State or returns to it.
        Article 7 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 (for example, a witness
    incarcerated in the Requested State may be transferred to the
    Requesting State to have his testimony taken in the presence of
    the defendant), unless the person in question does not consent
    or there are overriding grounds for non-transfer. Article 7(4)
    further establishes both the express authority and the
    obligation of the receiving State to keep the person
    transferred in custody unless otherwise authorized by the
    sending State. The person transferred must be returned to the
    custody of the sending State as soon as circumstances permit or
    as otherwise agreed by the Central Authorities, and the sending
    State 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 State.
        Article 8 provides that the Requested State may authorize
    the transit through its territory of a person whose appearance
    in a criminal investigation or proceeding has been sought by
    the Requesting State, and obliges the Requested State to keep
    the person in custody during such transit.
        Article 9 requires the Requested State to provide the
    Requesting State with copies of publicly available records in
    the possession of its government offices and agencies. The
    Requested State may also provide copies of records in the
    possession of a government office or agency, but not publicly
    available, to the same 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
    requests for such non public documents, entirely or in part.
        Article 9 also provides that records provided shall be
    authenticated either under the provisions of the 1961 Hague
    Convention Abolishing the Requirement of Legalization for
    Foreign Public Documents or by an attestation of authenticity
    done by the official responsible for maintaining the records.
    Alternatively, the official may certify the absence or
    nonexistence of such records. Such authentications and
    certifications, if they follow the forms contained in the
    exchange of notes to the Treaty, are admissible in evidence in
    the Requesting State as proof of the truth of the matters they
    address.
        Article 10 states that, insofar as the laws of the
    Requested State allow, a person in the Requested State from
    whom testimony or evidence is requested shall be compelled, if
    necessary, to appear and testify or produce documents, records,
    information and other items. The Requesting State may request
    that evidence be given under oath, and the giving of false
    testimony is to be subject to prosecution under the laws of the
    Requested State.
        Article 10(3) further requires the Requested State to
    permit persons specified in the request (such as the accused,
    counsel for the accused, or other interested persons) to be
    presentduring execution of the request and to allow them to
    propose questions to be asked of the person giving the testimony or
    evidence. In the event that a person whose testimony or evidence is
    being taken in the Requested State asserts a claim of immunity,
    incapacity, or privilege under the laws of the Requesting State,
    Article 10(5) provides for the Requesting State to be consulted as to
    the validity of the claim.
        Finally, in order to ensure admissibility in evidence in
    the Requesting State, Article 10(6) provides a mechanism for
    authenticating, by means of an attestation, evidence that is
    produced pursuant to or that is the subject of testimony taken
    in the Requested State. Such attestations are to be certified
    in accordance with procedures specified in the request, which,
    in the case of business records, may include a certificate or
    protocol. Evidence so authenticated is admissible in the
    Requesting State as proof of the truth of the matter it
    addresses. As noted above in connection with Article 9, the
    Governments have exchanged diplomatic notes setting out agreed
    forms to be relied upon for this purpose.
        Article 11 provides that the Requested State shall execute
    a request for search and seizure of any item, if the offense is
    punishable criminally (or by a regulatory fine under German
    law) under the laws of both States, if information is supplied
    to the Requested State justifying such action under its laws,
    and if the Requesting State documents that compulsory
    production or seizure also could be obtained under its laws.
    This Article further creates a mechanism for certifying,
    through the use of procedures specified in the request, the
    identity of the item and its chain of custody. A form set out
    in the exchange of diplomatic notes may be utilized for this
    purpose. Certifications following these procedures are
    admissible as proof of the chain of custody in the Requesting
    State.
        Article 12 identifies three types of special investigative
    techniques which may be utilized by the Parties, within their
    possibilities and under the conditions prescribed by domestic
    law. These are: telecommunications surveillance, undercover
    investigations, and controlled deliveries. This MLAT marks the
    first occasion where such techniques have been specifically
    recognized by the United States as types of mutual legal
    assistance. The provision was included at the request of the
    Federal Republic of Germany.
        Article 13(1) provides that, if the Central Authority of
    one Party becomes aware that proceeds or instrumentalities of
    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 theParty that provided the information of any
    action taken.
        Article 13(2) obligates the Parties to assist each other to
    the extent permitted by their respective laws in proceedings
    relating to the forfeiture of the proceeds and
    instrumentalities of offenses, restitution to victims of crime,
    and collection of fines imposed as sentences in criminal
    prosecutions. This may include action to temporarily immobilize
    proceeds or instrumentalities. Under Article 13(3), the Party
    having custody over proceeds or instrumentalities of offenses
    is required to dispose of them in accordance with its laws,
    including the possibility of transferring assets or proceeds to
    the other Party.
        Article 14 requires the Requested State, if so requested by
    the Central Authority of the Requesting State, to use its best
    efforts to keep confidential a request and its contents. The
    Central Authority of the Requested State must inform the
    Requesting State's Central Authority if the request cannot be
    executed without breaching such confidentiality. This provides
    the Requesting State an opportunity to decide whether to pursue
    the request or to withdraw it in order to maintain
    confidentiality.
        This article also enables the Requested State's Central
    Authority to request that evidence or information it furnishes
    under the Treaty be kept confidential or used only subject to
    specified conditions. If evidence or information is made
    subject to conditions, the Requesting State shall use its best
    efforts to honor them.
        Article 15 addresses conditions in detail. Where the
    Requested State could refuse assistance but instead offers it
    subject to conditions that are accepted by the Requesting
    State, the latter is bound to comply with the conditions. This
    Article also requires the Requesting State not to use
    information or evidence obtained under the Treaty for any
    purposes other than those for which it was sought and granted,
    other than exceptions specified in paragraph 3, without the
    prior consent of the Requested State.
        The circumstances under which evidence or information
    generally may be used without prior consent are: for other
    purposes within the scope of assistance under the Treaty; for
    prevention of a serious criminal offense; in non-criminal
    judicial or administrative proceedings related to criminal
    matters; and to avert substantial danger to public security. A
    Requested State may, however, specifically exclude use for one
    of these purposes in a particular case.
        Article 15(4) permits a Requesting State to disclose to a
    defendant in a criminal proceeding evidence that may be
    exculpatory or that relates to the truth and veracity of a
    prosecution witness. The Requesting State is obliged to notify
    the Requested State in advance of any such proposed disclosure.
    In addition, Article 15(5) permits the use of information for
    anypurpose once it has been made public in the normal course of
    a criminal proceeding in the Requesting State.
        Article 16 provides a special rule for ensuring
    confidentiality in the Requesting State of information or
    evidence received in connection with an antitrust investigation
    or proceeding. Such information is to receive the same degree
    of protection as evidence obtained in the Requesting State
    itself, may be disclosed only to persons or authorities
    competent for prosecuting antitrust offenses, and may be used
    only in public court proceedings or judicial decisions, absent
    consent to broader use.
        Article 17 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
    in urgent situations. Requests not in writing require written
    confirmation within ten days unless the Central Authority of
    the Requested State agrees otherwise.
        Article 18 stipulates that requests may be made in the
    language of either Party, but, if made in the language of the
    Requesting State, shall be accompanied by a translation into
    the language of the Requested State. Translations of documents
    in the other Party's language also are required, unless
    otherwise agreed.
        Article 19 concerns execution of requests. A Requested
    State shall execute a request in accordance with its own
    criminal law and criminal procedure law except to the extent
    the Treaty provides otherwise. This obligation is to be
    construed with a view to fulfilling the overall objective of
    the Treaty of promoting cooperation, as recently illustrated in
    the case of In re Commissioner's Subpoenas, 325 F. 3d 1287
    (11th Cir. 2003). In addition, a Requested State must honor
    requests for use of specific procedures unless prohibited under
    its criminal procedure law. The Requested State's Central
    Authority shall ensure that the request either is executed or
    transmitted to the authority having jurisdiction to do so. The
    competent authorities of the Requested State must do everything
    in their power to execute a request, and its courts shall have
    authority to issue needed orders, including search warrants.
        Requests are to be executed as soon as possible. However,
    Article 19(5) permits the Requested State to seek additional
    information necessary to execute the request. In addition, if
    the Requested State determines that execution of a request
    would interfere with an ongoing criminal investigation or
    proceeding in that State, it may postpone execution or make
    execution subject to conditions determined to be necessary
    after consultations with the Central Authority of the
    Requesting State. If the Requesting State accepts assistance
    subject to conditions, it must comply with them.
        Article 20 provides that the Requesting State shall return
    any item provided in response to a request, unless return is
    waived, and that the Central Authority of the Requested State
    may require its counterpart in the Requesting State to protect
    third party interests in a transferred item.
        Article 21 apportions between the two States the costs
    incurred in executing a request. It provides that the Requested
    State must pay all expenses and fees relating to the execution
    of a request, except for those relating to expert services;
    translation, interpretation and transcription; travel of
    witnesses or experts outside the Requested State pursuant to
    Article 5 or inside the Requested State pursuant to Article 10;
    and the transfer of a person in custody outside the Requested
    State pursuant to Article 7. The article further provides that,
    in the event a request entails extraordinary expenses,
    consultation between the Central Authorities shall occur in
    order to determine the terms and conditions for continuing
    execution.
        Article 22 authorizes transfer of a matter to the other
    Party for consideration of possible criminal investigation or
    prosecution. The receiving Party is obliged to notify the
    referring Party of the ultimate disposition of the matter.
        Article 23 clarifies that, as a general matter, documents
    and records transmitted in response to a request do not require
    certification, authentication or other legalization except to
    the extent specified in the Treaty.
        Article 24 provides that the Central Authorities shall
    consult, at times mutually agreed, to promote the most
    effective use of the Treaty, and may agree upon practical
    measures to facilitate the Treaty's implementation.
        Article 25 makes clear that assistance and procedures under
    the Treaty are non-exclusive; other applicable international
    agreements, arrangements, or provisions of domestic law may be
    utilized instead. Under Article 25(2), assistance may be
    refused for a tax offense if the Requested State regards the
    offense as being based either on taxation in the Requesting
    State that is contrary to the provisions of any double tax
    convention to which both States are party, or, in the case of
    taxes not covered by any such convention, on taxation that is
    contrary to the fundamental principles of taxation. Finally,
    Article 25(3) clarifies that police authorities conducting
    criminal investigations may request assistance directly from
    the other State's police authorities. Such requests by U.S.
    police authorities are to be addressed to Germany's Federal
    Criminal Police Office (BKA).
        Article 26 provides that the Treaty is subject to
    ratification and that the instruments of ratification are to be
    exchanged as soon as possible. The Treaty then enters into
    force thirty days after the exchange of instruments. Article
    26(3) provides that either State may terminate the Treaty by
    writtennotice to the other State, termination to be effective
    one year after the date of such notice.
        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.