[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.


