[Senate Executive Report 104-22]
[From the U.S. Government Publishing Office]
104th Congress Exec. Rept.
SENATE
2d Session 104-22
_______________________________________________________________________
TREATY WITH THE REPUBLIC OF KOREA ON MUTUAL LEGAL ASSISTANCE IN
CRIMINAL MATTERS
_______
July 30, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Doc. 104-1]
The Committee on Foreign Relations, to which was referred
the Treaty Between the United States of America and the
Republic of Korea on Mutual Legal Assistance in Criminal
Matters, signed at Washington on November 23, 1993, together
with a related exchange of notes signed on the same date,
having considered the same, reports favorably thereon with two
provisos and recommends that the Senate give its advice and
consent to the ratification thereof as set forth in this report
and the accompanying resolution of ratification.
I. Purpose
Mutual Legal Assistance Treaties (MLATs) provide for the
sharing of information and evidence related to criminal
investigations and prosecutions, including drug trafficking and
narcotics-related money laundering. Both parties are obligated
to assist in the investigation, prosecution and suppression of
offenses in all forms of proceedings (criminal, civil or
administrative). Absent a treaty or executive agreement, the
customary method of formally requesting assistance has been
through letters rogatory.
II. Background
On November 23, 1993, the United States signed a treaty
with the Republic of Korea on mutual assistance in criminal
matters and the President transmitted the Treaty to the Senate
for advice and consent to ratification on January 12, 1995. In
recent years, the United States has signed similar MLATs with
many other countries as part of an effort to modernize the
legal tools available to law enforcement authorities in need of
foreign evidence for use in criminal cases.
States historically have been reluctant to become involved
in the enforcement of foreign penal law.\1\ This reluctance
extended to assisting foreign investigations and prosecutions
through compelling testimony or the production of documents.
Even now, the shared interest in facilitating the prosecution
of transnational crime is viewed as being outweighed at times
by unwillingness to provide information to those with different
standards of criminality and professional conduct.
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\1\ E.g., Restatement (Third) of the Foreign Relations Law of the
United States Part IV, ch. 7, subch. A, Introductory Note and Sec. 483,
Reporters' Note 2 (1987); Ellis & Pisani, ``The United States Treaties
on Mutual Assistance in Criminal Matters: A Comparative Analysis,'' 19
Int. Lawyer 189, 191-198 (discussing history of U.S. reluctance and
evolution of cooperation) [hereinafter cited as Ellis & Pisani].
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Despite these hindrances, the need to obtain the
cooperation of foreign authorities is frequently critical to
effective criminal prosecution. Documents and other evidence of
crime often are located abroad. It is necessary to be able to
obtain materials and statements in a form that comports with
U.S. legal standards, even though these standards may not
comport with local practice. Also, assisting prosecutors for
trial is only part of how foreign authorities may assist the
enforcement process. Detecting and investigating transnational
crime require access to foreign financial records and similar
materials, while identifying the fruits of crime abroad and
having them forfeited may deter future criminal activity. It is
necessary to have the timely and discrete assistance of local
authorities.
Still, it was not until the 1960s that judicial assistance
by means of letters rogatory--requests issuing from one court
to another to assist in the administration of justice \2\--were
approved. Even then, the ability of foreign authorities to use
letters rogatory to obtain U.S. assistance was not established
firmly in case law until 1975.\3\ By this time, the United
States had negotiated and signed a mutual legal assistance
treaty with Switzerland, the first U.S. treaty of its kind.
This treaty was ratified by both countries in 1976 and entered
into force in January 1977. Since then, the United States has
negotiated more than 20 additional bilateral MLATs, 14 of which
are in force.\4\
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\2\ See In re Letter Rogatory from the Justice Court, District of
Montreal Canada, 523 F.2d 562, 564-565 (6th Cir. 1975).
\3\ Id. at 565-566.
\4\ According to the August 4, 1995, Letters of Submittal
accompanying the MLATs with Austria and Hungary, the United States has
bilateral MLATs in force with Argentina, The Bahamas, Canada, Italy,
Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland,
Thailand, Turkey, the United Kingdom concerning the Cayman Islands, and
Uruguay. MLATs not in force but ratified by the United States include
those with Belgium, Colombia, and Panama. Signed but unratified MLATs
include the five addressed in this report--those with Austria, Hungary,
the Republic of Korea, the Philippines, and the United Kingdom--and one
with Nigeria. Treaty Doc. 102-21, 104th Cong., 1st Sess. v (1992)
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Absent a treaty or executive agreement, the customary
method of formally requesting assistance has been through
letters rogatory. The Deputy Assistant Attorney General of the
Criminal Division has summarized the advantages of MLATs over
letters rogatory to the House Foreign Affairs Committee as
follows:
An MLAT or executive agreement replaces the use of
letters rogatory. * * * However, treaties and executive
agreements provide, from our perspective, a much more
effective means of obtaining evidence. First, an MLAT
obligates each country to provide evidence and other
forms of assistance needed in criminal cases. Letters
rogatory, on the other hand, are executed solely as a
matter of comity. Second, an MLAT, either by itself or
in conjunction with domestic implementing legislation,
can provide a means of overcoming bank and business
secrecy laws that have in the past so often frustrated
the effective investigation of large-scale narcotics
trafficking operations. Third, in an MLAT we have the
opportunity to include procedures that will permit us
to obtain evidence in a form that will be admissible in
our courts. Fourth, our MLATs are structured to
streamline and make more effective the process of
obtaining evidence.\5\
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\5\ ``Worldwide Review of Status of U.S. Extradition Treaties and
Mutual Legal Assistance Treaties: Hearings Before the House Committee
on Foreign Affairs.'' 100th Cong., 1st Sess. 36-37 (1987) (statement of
Mark M. Richard, Deputy Assistant Attorney General, Criminal Division).
Letters rogatory and MLATs are not the only means that have
been used to obtain assistance abroad.\6\ The United States at
times has concluded executive agreements as a formal means of
obtaining limited assistance to investigate specified types of
crimes (e.g., drug trafficking) or a particular criminal scheme
(e.g., the Lockheed investigations).\7\ A separate, formal
means of obtaining evidence has been through the subpoena
power. Subpoenas potentially may be served on a citizen or
permanent resident of the United States abroad or on a domestic
U.S. branch of a business whose branches abroad possess the
desired information.\8\
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\6\ U.S. Dept. of Justice, United States Attorneys' Manual
Sec. Sec. 9-13.520 et seq. (October 1, 1988).
\7\ Id. at Sec. 9-13.523.
\8\ Id. at Sec. 9-13.525.
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Additionally, the Office of International Affairs of the
Criminal Division of the Department of Justice notes several
informal means of obtaining assistance that have been used by
law enforcement authorities in particular circumstances. These
have included informal police-to-police requests (often
accomplished through law enforcement personnel at our embassies
abroad), requests through Interpol, requests for readily
available documents through diplomatic channels, and taking
depositions of voluntary witnesses. Informal means also have
included ``[p]ersuading the authorities in the other country to
open `joint' investigations whereby the needed evidence is
obtained by their authorities and then shared with us.'' The
Justice Department also has made ``treaty type requests that,
even though no treaty is in force, the authorities in the
requested country have indicated they will accept and execute.
In some countries (e.g., Japan and Germany) the acceptance of
such requests is governed by domestic law; in others, by custom
or precedent.'' \9\
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\9\ Id. at Sec. 9-13.524.
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Like letters rogatory, executive agreements, subpoenas, and
informal assistance also have their limitations compared to
MLATs. Executive agreements have been restricted in scope and
application. Foreign governments have strongly objected to
obtaining records from within their territories through the
subpoena power.\10\ There is no assurance that informal means
will be available or that information received through them
will be admissible in court.
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\10\ Notwithstanding foreign objections, unilateral methods such as
issuing subpoenas on domestic branches may actually have promoted the
negotiation of MLATs. According to one commentator, ``the principal
incentive for many foreign governments to negotiate MLATs with the
United States was, and remains, the desire to curtail the resort by
U.S. prosecutors, police agents, and courts to unilateral,
extraterritorial means of collecting evidence from abroad.'' E.
Nadelmann, Cops Across Borders: The Internationalization of U.S.
Criminal Law Enforcement 315 (1993) [hereinafter cited as Nadelmann].
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III. Summary
a. general
Mutual legal assistance treaties generally impose
reciprocal obligations on parties to cooperate both in the
investigation and the prosecution of crime. Most, but not all,
MLATs have covered a broad range of crimes with no requirement
that a request for assistance relate to activity that would be
criminal in the requested State. The means of obtaining
evidence and testimony under MLATs also range broadly. MLATs
increasingly are extending beyond vehicles for gathering
information to include ways of denying criminals the fruits and
the instrumentalities of their crimes.
b. section-by-section summary
1. Types of proceedings
MLATs generally call for assistance in criminal
investigations and proceedings. This coverage often is broad
enough to encompass all aspects of a criminal prosecution, from
investigations by law enforcement agencies to grand jury
proceedings to trial preparation following formal charges to
criminal trial. Most recent MLATs also cover civil and
administrative proceedings--forfeiture proceedings, for
example--related to at least some types of prosecutions, most
frequently those involving drug trafficking. However, the scope
of some MLATs has been more circumscribed than the proposed
treaty.
The Korea Treaty states that the parties shall provide
mutual assistance ``in connection with the prevention,
investigation and prosecution of offenses, and in proceedings
related to criminal matters'' (art. 1).
2. Limitations on assistance
All MLATs except various types of requests from the treaty
assistance provisions. For example, judicial assistance
typically may be refused if carrying out a request would
prejudice the national security or other essential interest of
the Requested State. Requests related to political offenses
usually are excepted, as are requests related to strictly
military offenses. Unlike the extradition treaties, dual
criminalty--a requirement that a request relate to acts that
are criminal in both the Requested and Requesting States--
generally is not required. Nevertheless, some treaties do
contain at least an element of a dual criminality standard.
Additionally, some treaties go beyond military and political
offenses to also except requests related to certain other types
of crimes. Requests related to tax offenses at times have been
restricted in an MLAT to offenses that are connected to other
criminal activities. Before a request is denied, a Requested
State generally is required to determine whether an otherwise
objectionable request may be fulfilled subject to conditions.
The Korea Treaty states that assistance may be denied if
the conduct involved is not an offense in the Requested State,
but a broad range of criminal conduct is excepted from the dual
criminality requirement. Excepted conduct includes a long list
of crimes, among them drug trafficking, racketeering activity,
money laundering, fraud (including securities fraud),
immigration crimes, antitrust, bankruptcy, insider trading,
crime against computer systems, trade laws, tax evasion, crimes
involving intellectual property, firearms offenses, and certain
violent crime addressed in multilateral conventions (art. 3 &
Annex).
3. Transmittal of requests
Requests under MLATs are conveyed directly through
designated Competent Authorities, which in the United States
has been the Criminal Division of the Justice Department. The
time and paperwork saved in thereby bypassing the courts and
diplomatic channels are among the main advantages of MLATs. For
example, a report by the Criminal Justice Section of the
American Bar Association has stated that the circuitry of the
channel for transmitting letters rogatory and evidence obtained
under them often effectively frustrates use of letters rogatory
as a means of obtaining assistance.\11\
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\11\ American Bar Association, Criminal Justice Section, Report
(No. 109) to the House of Delegates 3 (1989 Annual Meeting in Honolulu)
(hereinafter cited as ABA Report).
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The provisions on the form and contents of requests are
contained in article 4 of the respective treaties. All five of
the MLATs under consideration require that a request for
assistance under an MLAT be in writing, except in urgent
situations (in which case a request must be confirmed in
writing later, typically within 10 days). Among the information
usually to be included in a request are (1) the name of the
authority conducting the investigation, prosecution, or
proceeding to be assisted by the request; (2) a detailed
description of the subject matter and nature of the
investigation, prosecution, or proceeding to which the request
relates, including, under all of the treaties other than the UK
treaty, a description of the pertinent offenses; (3) a
description of the evidence or other assistance being sought;
and (4) the purpose for which the assistance is being sought.
To the extent necessary and possible, other information
that may facilitate carrying out the request also is to be
provided, including, for example, information on the
whereabouts of information or persons sought or a description
of a place or person to be searched and of objects to be
seized. Additional information may include lists of questions
to be asked, a description of procedures to be followed, and
information on allowances and expenses to be provided to an
individual who is asked to appear in the Requesting State.
4. Execution of requests
Under the proposed treaties the Competent Authority of a
Requested State is to execute a request promptly or, when
appropriate, transmit the request to authorities having
jurisdiction within the Requested State to execute it. The
competent authorities of the Requested State are to do
everything in their power to execute the request.
Article 5 of the proposed MLAT provides that requests are
to be executed in accordance with the laws of the Requested
State, unless the treaties provide otherwise. At the same time,
the method of execution specified in a request is to be
followed unless the laws of the Requested State prohibit it. As
is typical in other MLATs the proposed treaty provides that the
judicial authorities of the Requested State shall have power to
issue subpoenas, search warrants, or other orders necessary to
execute the request.
The Central Authority of a Requested State may postpone or
place conditions on the execution of a request if execution in
accordance with the request would interfere with a domestic
criminal investigation or proceeding, jeopardize the security
of a person, or place an extraordinary burden on the resources
of the Requested State.
At the request of a Requesting State, a Requested State is
to use its best efforts to keep a request and its contents
confidential. If a request cannot be executed without breaching
confidentiality, the Requested State shall so inform the
Requesting State, and the Requesting State then is given the
option to proceed nonetheless. (Provisions on keeping
information provided to a Requesting State confidential are
discussed below.)
Requested States generally bear the costs of executing a
request other than expert witness fees; interpretation,
transcription and translation costs; and travel costs for
individuals whose presence is Requested in the Requesting State
or a third State.
5. Types of assistance
In conducting a covered proceeding, a Requesting State
commonly may obtain assistance from a Requested State that
includes (1) the taking of testimony or statements of persons
located there; (2) service of documents; (3) execution of
requests for searches and seizures; (4) the provision of
documents and other articles of evidence; (5) locating and
identifying persons; and (6) the transfer of individuals in
order to obtain testimony or for other purposes. Also, mutual
legal assistance treaties increasingly have called for
assistance in immobilizing assets, obtaining forfeiture, giving
restitution, and collecting fines.
Taking testimony and compelled production of documents in
Requested State
The proposed MLAT permits a State to compel a person in the
Requested State to testify and produce documents there. Persons
specified in the request are to be permitted to be present and
usually have the right to question the subject of the request
directly or have questions posed in accordance with applicable
procedures of the Requested State. If a person whose testimony
is sought objects to testifying on the basis of a privilege or
other law of the Requesting State, the person nevertheless must
testify and objections are to be noted for later resolution by
authorities in the Requesting State.
With respect to questioning a witness by a person specified
in the request, though most treaties grant a right to question,
the proposed Korea MLAT (art. 8) leaves it to the discretion of
the requested State to allow questioning by a person specified
in the request.
Service of documents
Under an MLAT, a Requesting State may enlist the assistance
of the Requested State to serve documents related to or forming
part of a request to persons located in the Requested State's
territory. This obligation generally is stated as a requirement
of the Requested State to ``use its best efforts to effect
service'' (art. 14).
The treaties require that documents requiring a person to
appear before authorities be transmitted by a certain time--
usually stated as ``a reasonable time,'' ``30 days'' in the
case of the Korea MLAT--before the appearance. The service
provisions of the MLAT under consideration is broader than some
of those under MLATs currently in force. Provisions under some
earlier MLATs provide that a Requested State has discretion to
refuse to serve a document that compels the appearance of a
person before the authorities of the Requesting State.
Searches and seizures
MLATs compel that an item be searched for and seized in the
Requested State whenever a Requesting State provides
information that would be sufficient to justify a search and
seizure under the domestic law of the Requested State. The MLAT
authorizes conditioning or otherwise modifying compliance to
assure protection of third parties who have an interest in the
property seized. The proposed Korean MLAT contains procedures
for verifying the condition of an item when seized and the
chain of individuals through whose hands the item passed, but,
unlike other MLATs, the Korea treaty does not contain a form
for verifying the condition of an item. No other verification
is necessary for admissibility in the Requesting State.
Provision of documents possessed by the Government
MLATs provide a variety of means for obtaining documents
abroad. Two means--compelled production in a Requested State by
an individual there and search and seizure--have been
mentioned. Additionally, a Requesting State generally may
obtain publicly available documents. In its discretion, a
Requested State may provide a Requesting State documents in its
possession that are not publicly available if the documents
could be made available to domestic authorities under similar
circumstances. The proposed MLAT calls for authentication in
accordance with procedures specified in the request.
Testimony in Requesting State
MLATs do not require the compelled appearance of a person
in a Requesting State, regardless of whether the person is in
custody or out of custody in the Requested State. Under
provisions on persons not in custody, a Requesting State may
ask a Requested State to invite a person to testify or
otherwise assist an investigation or proceeding in the
Requesting State. A request to invite a witness generally is
accompanied by a statement of the degree to which the
Requesting State will pay expenses. A Requested State is
required to invite the person Requested to appear in the
Requesting State and to inform that State promptly of the
invited witness's response.
A person in custody may not be transferred to a Requesting
State under an MLAT unless both the person and the Requested
State consent. A Requesting State is required to keep a person
transferred in custody and to return the person as soon as
possible and without requiring an extradition request for
return. Persons transferred receive credit for time spent in
custody in the Requesting State.
The proposed MLAT makes some express provision for immunity
from process and prosecution for individuals appearing in the
Requesting State in accordance with a treaty request. The Korea
MLAT (art. 12) makes immunity mandatory. Immunity from process
and prosecution expires if the person appearing in the
requesting State stays beyond a designated period after the
person is free to leave or if the person appearing voluntarily
reenters the requesting State after leaving.
Immobilization of assets and forfeiture
The proposed MLAT contains a forfeiture assistance
provision. A Requesting State is permitted to enlist the
assistance of a Requested State to forfeit or otherwise seize
the fruits or instrumentalities of offenses that the Requesting
State learns are located in the Requested State. A Requested
State, in turn, may refer information provided it about fruits
and instrumentalities of crime to its authorities for
appropriate action under its domestic law and report back on
action taken by it.
More generally, the MLATs require the parties to assist
each other to the extent permitted by their respective laws in
proceedings on forfeiting the fruits and instrumentalities of
crime. The proposed MLAT provides that forfeited proceeds are
to be disposed of under the law of the Requested State, and if
that law permits, forfeited assets or the proceeds of their
sale may be transferred to the Requesting State.
Limitations on use
To address potential misuse of information provided, MLATs
restrict how a Requesting State may use material obtained under
them. States at times have raised concerns that MLATs could be
used to conduct ``fishing expeditions,'' under which a
Requesting State could obtain information not otherwise
accessible to it in search of activity it considers prejudicial
to its interests. Requested States also are concerned that its
own enforcement interests may be compromised if certain
information provided by them is disclosed except as is
compelled in a criminal trial. As a result, the MLAT contains a
provision requiring information be kept confidential and
limited in use to purposes stated in the request.
Article 7 of the proposed MLAT allows the Requested State
to place confidentiality and use restrictions on information
and other material. Typically, a Requested State may require
that information or evidence not be used in any investigation,
prosecution, or proceeding other than that described in the
request. Requested States also may request that information or
evidence be kept confidential, and Requesting States are to use
their best efforts to comply with the conditions of
confidentiality. Nevertheless, once information or evidence has
been made public in a Requesting State in the normal course of
the proceeding for which it was provided, it may be used
thereafter for any other purpose.
Location of persons or items
In whole or in part, MLAT requests most often require the
Requested State to locate a person or item. The proposed MLAT
requires the Requested State's ``best efforts'' in locating the
person or item.
6. MLATs and defendants
International agreements frequently confer benefits on
individuals who are nationals of the State parties. Investment
and immigration opportunities, tax benefits, and assistance in
civil and commercial litigation are but some of the advantages
an individual may enjoy under an international agreement.
Nevertheless, it is clear that MLATs are intended to aid law
enforcement authorities only.
The resulting disparity between prosecution and defendant
in access to MLAT procedures had led some to question the
fairness and even the constitutionality of MLATs denying
individual rights. (The constitutional provisions most
immediately implicated by denying a defendant use of MLAT
procedures are the fifth, sixth, and fourteenth amendments.) At
the core of the legal objections is the belief that it is
improper in our adversarial system of justice to deny
defendants compulsory process and other effective procedures
for compelling evidence abroad if those procedures are
available to the prosecution.\12\
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\12\ In its 1989 report on MLATs, the Criminal Justice Section of
the American Bar Association both strongly supported MLATs and also
recommended that ``every future MLAT should expressly permit criminal
defendants to use the treaty to obtain evidence from the Requested
country to use in their defense if they can make a showing of necessity
to the trial court.'' ABA Report at 8.
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Those opposing defendant use of MLAT procedures fear that
States would not enter into MLATs if it meant making
information available to criminals. Also, MLATs do not preclude
accused persons from using letters rogatory to obtain evidence
located in the territory of treaty partners, even though the
non-mandatory nature of letters rogatory may result in
difficulties in obtaining evidence quickly.
In its response to a question for the record by Senator
Helms on this issue the State Department stated:
There are no legal challenges to any of our existing
MLATs. It is the position of the Department of Justice
that the MLATs are clearly and unquestionably
constitutional.
In 1992, Michael Abbell, then-counsel to some members
of the Cali drug cartel, did suggest to the Committee
that MLATs should permit requests by private persons
such as defendants in criminal cases. To our knowledge,
no court has adopted the legal reasoning at the core of
that argument.
The Department of Justice believes that the MLATs
before the Committee strike the right balance between
the needs of law enforcement and the interests of the
defense. The MLATs were intended to be law enforcement
tools, and were never intended to provide benefits to
the defense bar. It is not ``improper'' for MLATs to
provide assistance for prosecutors and investigators,
not defense counsel, any more than it would be improper
for the FBI to conduct investigations for prosecutors
and not for defendants. The Government has the job of
assembling evidence to prove guilt beyond a reasonable
doubt, so it must have the tools to do so. The defense
does not have the same job, and therefore does not need
the same tools.
None of the MLATs before the Senate provide U.S.
officials with compulsory process abroad. None of the
treaties require the treaty partner to compel its
citizens to come to the United States, and none permit
any foreign Government to compel our citizens to go
abroad. Rather, the MLATs oblige each country to assist
the other to the extent permitted by their laws, and
provide a framework for that assistance. Since the
Government does not obtain compulsory process under
MLATs, there is nothing the defense is being denied.
The MLATs do not deprive criminal defendants of any
rights they currently possess to seek evidence abroad
by letters rogatory or other means. The MLATs were
designed to provide solutions to problems that our
prosecutors encountered in getting evidence from
abroad. There is no reason to require that MLATs be
made available to defendants, since many of the
drawbacks encountered by prosecutors in employing
letters rogatory had largely to do with obtaining
evidence before indictment, and criminal defendants
never had those problems.
Finally, it should be remembered that the defendant
frequently has far greater access to evidence abroad
than does the Government, since it is the defendant who
chose to utilize foreign institutions in the first
place. For example, the Government often needs MLATs to
gain access to copies of a defendant's foreign bank
records; in such cases, the defendant already has
copies of the records, or can easily obtain them simply
by contacting the bank.
IV. Entry Into Force and Termination
a. entry into force
The Treaty enters into force upon exchange of instruments
of ratification.
b. termination
The Treaty will terminate six months after notice by a
Party of an intent to terminate the Treaty.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed treaty on Wednesday, July 17, 1996. The hearing
was chaired by Senator Helms. The Committee considered the
proposed treaty on July 24, 1996, and ordered the proposed
treaty favorably reported with two provisos by voice vote, with
the recommendation that the Senate give its advice and consent
to the ratification of the proposed treaty.
VI. Committee Comments
The Committee on Foreign Relations recommended favorably
the proposed treaty. The Committee believes that the proposed
treaty is in the interest of the United States and urges the
Senate to act promptly to give its advice and consent to
ratification. In 1996 and the years ahead, U.S. law enforcement
officers increasingly will be engaged in criminal
investigations that traverse international borders. The
Committee believes that attaining information and evidence (in
a form that comports with U.S. legal standards) related to
criminal investigations and prosecutions, including drug
trafficking and narcotics-related money laundering, is
essential to law enforcement efforts.
To cite an example of how an MLAT can benefit the U.S.
justice system, the Committee notes the response by the State
Department to Chairman Helms' question for the record regarding
how the U.S. had made use of the MLAT with Panama after its
1995 ratifications:
One recent case from the Southern District of Texas
serves as an example of the usefulness of the treaty in
the prosecution of financial crimes. In that case, the
Assistant U.S. Attorney urgently needed bank records
from Panama to verify the dates and amounts of certain
money transfers of the alleged fraud proceeds in order
to corroborate the testimony of a principal witness.
The U.S. requested the records only a short time before
they were needed in the trial, and we were pleased that
Panamanian authorities produced the records promptly.
The records were described by the prosecutor as ``the
crowning blow'' to arguments raised by the defense and
indispensable to the Government's ultimate success in
the trial.
The Committee believes that MLATs should not, however, be a
source of information that is contrary to U.S. legal
principles. To attempt to ensure the MLATs are not misused two
provisos have been added to the Committee's proposed resolution
of ratification. The first proviso reaffirms that ratification
of this treaty does not require or authorize legislation that
is prohibited by the Constitution of the United States.
Bilateral MLATs rely on relationships between sovereign
countries with unique legal systems. In as much as U.S. law is
based on the Constitution, this treaty may not require
legislation prohibited by the Constitution.
The second proviso--which is now legally binding in 11
United States MLATs--requires the U.S. to deny any request from
an MLAT partner if the information will be used to facilitate a
felony, including the production or distribution of illegal
drugs. This provision is intended to ensure that MLATs will
never serve as a tool for corrupt officials in foreign
governments to gain confidential law enforcement information
from the United States.
VII. Explanation of Proposed Treaty
The following is the Technical Analysis of the Mutual Legal
Assistance Treaty submitted to the Committee on Foreign
Relations by the Departments of State and Justice prior to the
Committee hearing to consider pending MLATs.
technical analysis of the mlat between the united states of america and
the republic of korea
On November 23, 1993, the United States and the Republic of
Korea signed the Treaty on Mutual Legal Assistance in Criminal
Matters (``the Treaty''). In recent years, the United States
has signed similar treaties with many other countries as part
of a highly successful effort to modernize the legal tools
available to law enforcement authorities in need of foreign
evidence for use in criminal cases.
The Treaty, which is the second mutual legal assistance
treaty the United States has signed with an Asian country, is a
major advance in United States efforts to gain the cooperation
of other countries in the region in combatting organized crime.
It is anticipated that the Treaty will be implemented
pursuant to the mutual legal assistance legislation currently
in force in the two Contracting Parties; no new legislation is
needed. For the United States, the applicable procedural
framework is Title 28, United States Code, Section 1782. Korea
has its own mutual legal assistance law\13\ and does not
anticipate enacting new legislation to implement the Treaty.
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\13\ The Republic of Korea International Criminal and Judicial
Cooperation Act, Law No. 4343, Mar. 8, 1991 (``Korean International
Cooperation Act'').
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The following technical analysis of the Treaty was prepared
by the United States delegation that conducted the
negotiations.
Article 1--Scope of assistance
This article provides for assistance in all matters
involving the investigation, prosecution and prevention of
crime, and in proceedings related to criminal matters.
The negotiators specifically agreed that the term
``investigations'' includes grand jury proceedings in the
United States and similar pre-charge proceedings in Korea, in
addition to other legal measures taken prior to the filing of
formal charges in either Contracting Party.\14\ The term
``proceedings'' is intended to cover the full range of
proceedings in a criminal case, including such matters as bail
and sentencing hearings.\15\ It was also agreed that since the
phrase ``proceedings related to criminal matters'' is broader
than the investigation, prosecution or sentencing process
itself, proceedings covered by the Treaty need not be strictly
criminal in nature. For instance, proceedings to forfeit to the
government the proceeds of illegal drug trafficking may be
civil in nature but are still covered under the Treaty.\16\
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\14\ The requirement that assistance be provided under the Treaty
at the pre-indictment stage is critical to the United States, as our
investigators and prosecutors often need to obtain evidence from
foreign countries in order to determine whether or not to file criminal
charges. This obligation is a reciprocal one; the United States must
assist Korea under the Treaty in connection with investigations prior
to charges being filed in Korea.
Some United States courts have interpreted Title 18, United States
Code, Section 1782 to require that assistance be provided in criminal
matters only if formal charges have already been filed abroad, or are
``imminent'' or ``very likely.'' McCarthy, ``A Proposed Unified
Standard for U.S. Courts in Granting Requests for International
Judicial Assistance,'' 15 Fordham Int'l L.J. 772 (1991). The better
view is that Section 1782 does not contemplate such restrictions.
Conway, In re ``Request for Judicial Assistance from the Federal
Republic of Brazil; Blow to International Judicial Assistance,'' 41
Catholic U.L. Rev. 545 (1992). The 1996 amendment to the statute
eliminates this problem.
In any event, the Treaty was intentionally written to cover
criminal investigations that have just begun as well as those that are
nearly completed; it draws no distinction between cases in which
charges are already pending, ``imminent,'' ``very likely,'' or ``very
likely, very soon.''
\15\ One United States court has interpreted Title 28, United
States Code, Section 1782 as permitting the execution of a request for
assistance from a foreign country only if the evidence sought is for
use in proceedings before an adjudicatory ``tribunal'' in the foreign
country. In re ``Letters Rogatory Issued by Director of Inspection of
Gov't of India,'' 385 F.2d 1017 (2d Cir. 1967); Fonseca v. Blumenthal,
620 F.2d 322 (2d Cir. 1980).
This rule poses an unnecessary obstacle to the execution of
requests concerning matters at the investigatory stage and matters
customarily handled by administrative officials in the Requesting
State. Since this paragraph specifically permits requests to be made in
connection with matters not within the jurisdiction of an adjudicatory
``tribunal'' in the Requesting State, this paragraph accords courts
broader authority to execute requests than does Title 28, United States
Code, Section 1782, as interpreted in the India and Fonseca cases.
\16\ See 21 U.S.C. Sec. 881; 18 U.S.C. Sec. 1964.
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Paragraph 2 sets forth a list of the major types of
assistance specifically considered by the negotiators. Most of
the items listed in this paragraph are described in further
detail in subsequent articles. The list is not intended to be
exhaustive; this is signalled by the word ``include'' in the
opening clause of the paragraph and is reinforced by the final
subparagraph.
Paragraph 3 contains a standard provision in United States
mutual legal assistance \17\ that the Treaty is intended solely
for government-to-government mutual legal assistance. The
Treaty is not intended to provide to private persons a means of
evidence-gathering or to extend to civil matters. Private
litigants in the United States may continue to obtain evidence
from Korea by letters rogatory, an avenue of international
assistance that the Treaty leaves undisturbed. Similarly, the
paragraph provides that the Treaty is not intended to create
any right in a private person to suppress or exclude evidence
obtained thereunder.
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\17\ See United States v. Johnpoll, 739 F.2d 702 (2d Cir. 1984).
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Article 2--Central authorities
This article requires that each Contracting Party establish
a ``Central Authority'' for transmission, reception and
handling of requests. The Central Authority of the United
States makes all requests to Korea on behalf of federal, state
and local law enforcement authorities in the United States. The
Korean Central Authority makes all requests originating from
officials in Korea.
The Central Authority of the Requesting State exercises
discretion as to the form and content of and the number and
priority of requests. The Central Authority of the Requested
State is responsible for receiving each request, transmitting
it to the appropriate federal or state agency, court or other
authority for execution, and ensuring that a timely response is
made.
Paragraph 2 provides that the Attorney General acts as the
Central Authority for the United States. The Attorney General
has delegated the duties of Central Authority under mutual
assistance treaties to the Assistant Attorney General in charge
of the Criminal Division.\18\ Paragraph 2 also states that the
Korean Minister of Justice or the persons designated by the
Minister of Justice serves as the Central Authority for Korea.
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\18\ 28 C.F.R. Sec. 0.64-1. The Assistant Attorney General for the
Criminal Division has in turn delegated the authority to the Deputy
Assistant Attorneys General and the Director of the Criminal Division's
Office of International Affairs in accordance with the regulation.
Directive No. 58, 44 Fed. Reg. 18,661 (1979), as amended at 45 Fed.
Reg. 6,541 (1980); 48 Fed. Reg. 54,595 (1983). That delegation
subsequently was extended to the Deputy Directors of the Office of
International Affairs. 59 Fed. Reg. 42,160 (1994).
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Paragraph 3 states that the Central Authorities shall
communicate directly with one another or through the diplomatic
channel. Our experience has demonstrated that direct
communication between Central Authorities is essential to the
prompt, efficient execution of requests. Our treaties therefore
usually do not provide for transmitting requests via diplomatic
channels. The Treaty does provide for use of diplomatic
channels, however, because Korean mutual assistance law
prescribes such communication as an option.\19\ During the
negotiations, however, the delegations agreed that after the
initial implementation of the Treaty, most communications
regarding the Treaty will be transmitted directly between
Central Authorities; the diplomatic channel will be reserved
for unusual situations.
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\19\ See Korean International Cooperation Act Sec. 11.
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Article 3--Limitations on assistance
This article specifies the limited classes of cases in
which assistance may be denied under the Treaty.
Paragraph 1(a) permits the Requested State to deny a
request if it relates to a political offense or an offense
under military law that is not an offense under ordinary
criminal law. These restrictions are similar to those found in
other mutual legal assistance treaties. It is anticipated that
in applying this provision, the Contracting Parties will employ
jurisprudence similar to that used in the extradition context.
Paragraph 1(b) is inspired by article 3(1)(d) of the United
States-Bahamas Treaty and article 3(1)(d) of the United States-
Panama Treaty. It permits a request to be denied if the
Requested State determines that there are substantial grounds
for believing that granting the assistance would facilitate the
prosecution or punishment of the person identified in the
request on account of race, religion, nationality or political
opinions. This provision was of special importance to Korea
because section 6(2) of its International Cooperation Act
permits Korean authorities to deny a request for assistance on
these grounds.\20\ The United States understands the term ``on
account of '' to limit the application of this provision to
cases in which the race, religion or political opinion of the
offender is the governing motive for the prosecution, as
opposed to the desire to punish criminal offenses. When a
request to the United States appears to be covered by this
provision, the United States Central Authority will ask the
Department of State to assist in determining whether the
request should be denied on these bases.
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\20\ See Korean International Cooperation Act Sec. 6(2).
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Paragraph 1(c) permits the Requested State to deny a Treaty
request if execution of the request would prejudice its
security or similar essential interests. This includes cases in
which assistance might involve disclosure of information that
is classified for national security reasons. It is anticipated
that the Department of Justice, in its role as Central
Authority for the United States, will work closely with the
Department of State and other government agencies to determine
whether or not to execute requests that might fall in this
category. All United States mutual legal assistance treaties
contain provisions allowing the Requested State to decline to
execute a request if execution would prejudice its essential
interests.
The delegations agreed that the phrase ``essential
interests'' is limited to very serious reasons. However, it was
agreed that these may include interests unrelated to national
military or political security.
This provision may be invoked if the execution of a request
would violate essential United States interests related to the
fundamental purposes of the Treaty. One fundamental purpose is
to enhance law enforcement cooperation. Attaining that purpose
would be hampered if sensitive law enforcement information
available under the Treaty were to fall into the wrong hands.
Therefore, the United States Central Authority may invoke
paragraph 1(c) to decline to provide sensitive or confidential
drug-related information pursuant to a Treaty request whenever
it determines, after appropriate consultation with law
enforcement, intelligence and foreign policy agencies, that a
senior foreign government official likely to have access to the
information is engaged in or facilitates the production or
distribution of illegal drugs, and is using the request to the
prejudice of a United States investigation or prosecution.\21\
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\21\ This is consistent with the sense of the Senate as expressed
in its advice and consent to ratification of the mutual legal
assistance treaties with Mexico, Canada, Belgium, Thailand, the Bahamas
and the United Kingdom Concerning the Cayman Islands. Cong. Rec. 13,884
(1989) (treaty citations omitted). See also Staff of Senate Comm. on
Foreign Relations, 100th Cong., 2d Sess., Mutual Legal Assistance
Treaty Concerning the Cayman Islands 67 (1988) (testimony of Mark M.
Richard, Deputy Assistant Attorney General, Criminal Division,
Department of Justice).
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Extradition treaties sometimes condition the surrender of
fugitives upon a showing of ``dual criminality,'' i.e., proof
that the facts underlying the offense charged in the Requesting
State would also constitute an offense in the Requested State.
Paragraph 1(d) states that the Requested State may deny a
request for assistance under certain circumstances if the
conduct that is the subject of the investigation, prosecution
or proceeding in the Requesting State is not an offense under
the laws of the Requested State. Although United States mutual
legal assistance treaties usually do not include dual
criminality as a basis for denying assistance, it is included
in the Treaty because Korean mutual assistance law expressly
authorizes Korean officials to deny assistance on this
basis.\22\
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\22\ Korean International Cooperation Act Sec. 6(4).
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In extradition cases, dual criminality can exist even when
the countries call the crime by different names, place the
crime in different categories or penalize its commission by
different punishments. The dual criminality rule ``does not
require that the name by which the crime is described in the
two countries shall be the same, nor that the scope of
liability shall be co-extensive, or in other respects the same.
* * * '' \23\ The test is whether the conduct committed in the
Requesting State would constitute some criminal offense if
committed in the Requested State.\24\ Thus, the dual
criminality test permits assistance for many United States
offenses that do not have exact statutory counterparts in
Korea.\25\ The negotiators agreed to give a liberal
interpretation to paragraph 1(d) in order to provide assistance
in as many cases as possible.
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\23\ Collins v. Loisel, 259 U.S. 309, 312 (1922); Brauch v. Raiche,
618 F.2d 843 (1st Cir. 1980); see also Matter of the Extradition of
Suarez-Mason, 694 F. Supp. 676 (N.D. Cal. 1988); United States v.
Carlos Lehder-Rivas, 668 F. Supp. 1523 (M.D. Fla. 1987).
\24\ United States v. McCaffery, 2 All E.R. 570 (1984); Reg. v.
Governor of Pentonville Prison, ex Parte Budlong, 1 All E.R. 701
(1980); Shapira v. Ferrandina, 478 F.2d 894 (2d Cir. 1973).
\25\ For example, racketeering, in violation of Title 18, United
States Code, Section 1962, does not have a precise counterpart in Korea
statutory law. Racketeering charges, however, always involve a pattern
of criminal activity that includes two or more ``predicate acts'' of
criminal behavior. The Korean delegation assured the United States
negotiators that any Treaty request for assistance in a racketeering
case would be granted if the predicate acts are considered criminal
offenses in Korea. Similarly, United States laws on insider trading
have no exact counterpart in Korean law, but the United States
delegation was assured that assistance would be granted if the
offender's conduct is considered fraudulent in Korea.
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One common problem in this area was specifically discussed
during the negotiations: certain United States federal offenses
call for proof of certain elements (such as use of the mails or
interference with interstate commerce) to establish
jurisdiction in federal courts. Foreign judges generally have
no similar requirements in their own criminal law and on
occasion have denied extraditions to the United States on this
basis. This problem should not occur under paragraph 1(d)
because it is understood that the Requested State must
disregard elements required solely for the purpose of
establishing federal jurisdiction \26\ and must not be misled
by mere differences in the terminology that defines the
offenses. It appears that most major criminal prosecutions in
the United States would qualify for assistance under the dual
criminality test.
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\26\ See United States v. Herbage, 850 F.2d 1463 (11th Cir. 1988);
McCaffery 2 All E.R. 570.
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United States and Korean law differs significantly in some
respects, however; for this reason, strict adherence to the
dual criminality rule alone might render assistance unavailable
to the Requesting State in some areas even though the public
policy of the Requested State would not call for such a
restriction. Therefore, in order to accommodate each
Contracting Party's investigative and prosecution needs,
paragraph 2 permits assistance to be granted without regard to
dual criminality for 23 categories of criminal conduct listed
in the annex to the Treaty. For crimes within these categories,
assistance must be provided if the conduct under investigation
constitutes an offense under the laws of the Requesting State.
Paragraph 3, which is similar to article 3(2) of the United
States-Switzerland Treaty, obliges the Requested State to
consider imposing appropriate conditions on its assistance in
lieu of denying a request outright pursuant to paragrpah 1. For
example, a Contracting Party might request information that
could be used either in a routine criminal case (which would
fall within the scope of the Treaty) or in a political
prosecution (which would be subject to refusal under the
Treaty). This paragraph would permit the Requested State to
provide the information on the condition that it be used only
in the routine criminal case. Naturally, the Requested State
would notify the Requesting State of any proposed conditions
before delivering the evidence in question, thereby according
the Requesting State an opportunity to decide whether it is
willing to accept the evidence subject to the conditions. If
the Requesting State does accept the evidence, it must comply
with the conditions specified by the Requested State.
Paragraph 4 effectively requires that the Central Authority
of the Requested State promptly notify the Central Authority of
the Requesting State of any reason for denying or postponing
execution of the request. This ensures that when a request is
only partly executed, the Requested State will provide some
explanation for not providing all of the information or
evidence sought. This provision should prevent
misunderstandings and enable the Requesting State to better
prepare its requests in the future.
Article 4--Form and content of requests
Paragraph 1 requires that requests be in writing, except
that the Central Authority of the Requested State may accept a
request in another form in ``urgent situations.'' A request in
such a situation must be confirmed in writing promptly. Unless
otherwise agreed to, the request and all documents accompanying
the request shall be in the language of the Requested State.
Paragraph 2 lists information deemed crucial to the
efficient operation of the Treaty that must be included in each
request. Paragraph 3 outlines the types of information that are
considered important but not always crucial, which should be
provided ``to the extent necessary.'' In keeping with the
intention of the negotiators that requests be as simple and
straightforward as possible, there is no requirement under the
Treaty that a request be legalized or certified in any
particular manner.
Article 5--Execution of requests
Paragraph 1 requires the Requested State to undertake
diligent efforts to execute a request promptly. The Central
Authority of the Requested State reviews the request and
immediately notifies the Central Authority of the Requesting
State if the request does not comply with the Treaty's terms.
If the request does satisfy the Treaty's requirements and the
assistance sought can be provided by the Central Authority
itself, the assistance is to be provided promptly. If the
request meets the Treaty's requirement but its execution
requires action by another entity in the Requested State, the
Central Authority promptly transmits the request to the
appropriate entity for execution. When the United States is the
Requested State, the Central Authority will transmit most
request to federal investigators, prosecutors or judicial
officials for execution.
Paragraph 1 authorizes and requires the federal, state or
local authority selected by the Central Authority to take
whatever action is necessary and within its power to execute
the request. This provision is not intended or understood to
authorize the use of the grand jury in the United States for
the collection of evidence pursuant to a request from Korea.
Rather, it is anticipated that when a request from Korea
requires compulsory process for execution, the Department of
Justice will ask a federal court to issue the necessary process
under Title 28, United States Code, Section 1782, and under the
provisions of the Treaty.\27\
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\27\ Paragraph 1 specifically authorizes United States courts to
use all of their powers to issue subpoenas and other process to satisfy
requests under the Treaty.
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If execution of the request necessitates action by a
judicial authority or administrative agency, the Central
Authority of the Requested State arranges for the presentation
of the request to that court or agency at no cost to the
Requesting State. Since the cost of retaining counsel abroad to
present and process letters rogatory is sometimes rather
expensive, the provision for reciprocal legal representation in
paragraph 2 is a significant advance in international legal
cooperation. It is also understood that, should the Requesting
State choose to hire private counsel in connection with a
particular request, it is free to do so.
Paragraph 2 states that the Central Authority of the
Requested State shall arrange for requests from the Requesting
State to be presented to the appropriate authority in the
Requested State for execution. In practice, the Central
Authority for the United States will transmit the request with
instruction for execution to an investigative or regulatory
agency, the office of a prosecutor, or another governmental
entity. If execution requires the participation of a court, the
Central Authority will select an appropriate representative,
generally a federal prosecutor, to present the matter to a
court. Thereafter, the prosecutor will represent the United
States, acting to fulfill its obligations to Korea by executing
the request. Upon receiving the court's appointment as a
commissioner, the prosecutor/commissioner will act as the
court's agent in fulfilling the court's responsibility to do
``everything in its power'' to execute the request. Thus, the
prosecutor may only seek compulsory measures after receiving
permission from the court to do so.
The situation with respect to Korea is different. Its
Central Authority will transmit the request to the appropriate
court with general advice regarding Korea's obligation under
the Treaty and the general evidentiary and procedural
requirements of the United States.
Paragraph 3 provides that all requests shall be executed in
accordance with the laws of the Requested State except to the
extent that the Treaty specifically provides otherwise. Thus,
the method of executing a request for assistance under the
Treaty must be in accordance with the Requested States'
internal laws absent specific contrary procedures in the Treaty
itself. For the United States, the Treaty is intended to be
self-executing; no new legislation is needed to carry out
United States obligations under the Treaty.
Paragraph 4 states that a request for assistance need not
be executed immediately when execution would interfere with an
ongoing investigation or legal proceeding in the Requested
State.\28\ The Central Authority of the Requested State
determines when to apply this provision. The Central Authority
of the Requested State may act, in its discretion, to obtain or
preserve evidence that otherwise might be lost or compromised
before the conclusion of the investigation or legal proceedings
in the Requested State.
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\28\ See Korean International Cooperation Law Sec. 7.
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It is anticipated that some United States requests for
assistance may contain information that, under our law, must be
kept confidential. For example, it may be necessary to set out
information that is ordinarily protected by Rule 6(e), Federal
Rules of Criminal Procedure, in the course of an explanation of
``the subject matter and nature of the investigation or
proceeding,'' as is required by article 4(2)(b) of the Treaty.
Therefore, paragraph 5 enables the Requesting State to call
upon the Requested State to keep the information contained in
the request confidential.\29\ If the Requested State cannot
execute the request without disclosing the information in
question (as may be the case if execution requires a public
judicial proceeding in the Requested State), or if for some
other reason this confidentiality cannot be assured, the Treaty
obliges the Requested State to indicate this to the Requesting
State. This enables the Requesting State to withdraw the
request rather than risk jeopardizing its investigation or
proceeding by public disclosure of the information.
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\29\ Similar provisions appear in other United States mutual legal
assistance treaties. See, e.g., U.S.-Mexico Mutual Legal Assistance
Treaty, Dec. 9, 1987, art. 4(5) T.I.A.S. No. --; U.S.-Canada Mutual
Legal Assistance Treaty, Mar. 18, 1985, art. 6(5) T.I.A.S. No. --;
U.S.-Italy Mutual Legal Assistance Treaty, Nov. 13, 1985, art. 8(2),
T.I.A.S. No. --.
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Paragraph 6 states that the Central Authority of the
Requested State shall respond to reasonable inquiries by the
Requesting State as to the progress of the execution of its
requests. This language is intended to encourage open
communication between the Central Authorities in monitoring the
status of specific requests.
Paragraph 7 requires that the Central Authority of the
Requested State promptly notify the Central Authority of the
Requesting State of the outcome of the execution of a request.
If the assistance sought is not provided, the Central Authority
of the Requested State must also explain the reasons for this
outcome to the Central Authority of the Requesting State. For
example, if the evidence sought cannot be located or the
witness to be interviewed invokes a privilege under article
8(4), the Central Authority of the Requested State reports this
to the Central Authority of the Requesting State.
Article 6--Costs
This article reflects the increasingly accepted practice
that each Contracting Party bears the expenses incurred within
its territory in executing a legal assistance treaty request.
This is consistent with similar provisions in other United
States mutual legal assistance treaties.\30\ Article 6 does
oblige the Requesting State to pay fees of expert witnesses,
translation and transcription costs, and allowances and
expenses related to travel of persons pursuant to articles 10
and 11.
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\30\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar.
18, 1985, art. 8, T.I.A.S. No. --.
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Article 7--Limitations on use
Paragraph 1 requires that information provided under the
Treaty not be used for any purpose other than that stated in
the request without the prior consent of the Requested State.
Pursuant to article 4(2)(d), the Requesting State must specify
the reason why information or evidence sought under the Treaty
is needed.
Paragraph 2 provides that the Requested State may request
that the information it provides to the Requesting State be
kept confidential. Under most United States mutual legal
assistance treaties, conditions of confidentiality are imposed
only when necessary and are tailored to fit the circumstances
of each particular case. For instance, the Requested State may
agree to cooperate with an investigation in the Requesting
State but may choose to limit access to information that might
endanger the safety of an informant or unduly prejudice the
interests of persons not connected with the matter being
investigated.
Paragraph 2 additionally requires that if conditions of
confidentiality are imposed, the Requesting State is required
only to employ its ``best efforts'' to comply with them. The
``best efforts'' language is intended to provide flexibility in
order to avoid a breach of the Treaty whenever the Sixth
Amendment to the United States Constitution requires that the
defendant be provided access to evidence that was obtained
under the Treaty subject to confidentiality restrictions.
Moreover, the purpose of the Treaty--to produce evidence for
use at trials--would be frustrated if the Requested State
routinely permitted the Requesting State to see valuable
evidence but imposed confidentiality restrictions that
prevented its introduction at trial.
Once evidence obtained under the Treaty has been revealed
to the public (as envisioned by the Treaty), paragraph 3
provides that the Requesting State is free to use the evidence
for any purpose.
It should be kept in mind that under article 1(4), the
restrictions outlined in article 7 are for the benefit of the
Contracting Parties, and the enforcement of these provisions is
left entirely to the Contracting Parties. If a person alleges
that a Korean authority seeks to use information or evidence
obtained from the United States in a manner inconsistent with
this article, the person may inform the Central Authority of
the United States of the allegations, which are to be
considered as a matter between the Contracting Parties.
Article 8--Taking testimony and evidence in the Requested State
Paragraph 1 states that a person in the Requested State
shall be compelled, if necessary, to appear and testify or
produce documents, records or articles of evidence. The
compulsion contemplated by this article can be accomplished by
subpoena or by any other means available under the law of
Requested State. Paragraph 2 requires the Requested State, upon
request, to furnish logistical information in advance about the
taking of testimony.
Paragraph 3 provides that any interested parties, including
the defendant and defense counsel in criminal cases, may be
permitted to be present at and to pose questions during the
taking of testimony under this article. Korean law places
restrictions on the extent to which witnesses may be questioned
directly by attorneys and others and leaves the extent of such
questioning to the discretion of the judge overseeing the
proceeding. Therefore, the Treaty provides that in the event
that direct questioning of a witness is not possible, the
defendant and defense counsel may submit questions for the
judge to pose to the witness.
Paragraph 4, read together with article 5(3), ensures that
a person may not be compelled to furnish information if the
person has a privilege not to do so under the law of the
Requested State. Thus, a witness questioned in the United
States pursuant to a request from Korea is guaranteed the right
to invoke any of the testimonial privileges (e.g., attorney-
client, interspousal) available in proceedings in the United
States, as well as the constitutional privilege against self-
incrimination, to the extent that the privilege is
applicable.\31\ Of course, a witness testifying in Korea may
raise any applicable privilege available under Korean law.
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\31\ This is consistent with the approach taken in Title 28, United
States Code, Section 1782.
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Paragraph 4 further requires that if a witness attempts to
assert a privilege unique to the Requesting State, the
authorities in the Requested State will take the desired
evidence and turn it over to the Requesting State along with
notification that the evidence was obtained over a claim of
privilege. The applicability of the privilege can then be
determined in the Requesting State, where the scope of the
privilege and the legislative and policy reasons underlying it
are better understood. A similar provision appears in many
recent United States mutual legal assistance treaties.\32\
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\32\ See, e.g., U.S.-Netherlands Mutual Legal Assistance Treaty,
June 12, 1981, art. 5(1), T.I.A.S. No. 10734, 1359 U.N.T.S. 209; U.S.-
Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987, art.
9(2), T.I.A.S. No. --.; U.S.-Mexico Mutual Legal Assistance Treaty,
Dec. 9, 1987, art. 7(2), T.I.A.S. No. --.
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Paragraph 5 provides that documents, records and articles
of evidence produced pursuant to the Treaty may be
authenticated in accordance with the procedures specified in
the request. The paragraph states that if the evidence is
certified in this manner, it is ``admissible'' in the
Requesting State. The judicial authority presiding at the
trial, of course, determines whether the evidence should in
fact be admitted. The negotiators anticipated that evidentiary
tests in addition to authentication (such as relevance and
materiality) will have to be satisfied in each case.
Many United States mutual legal assistance treaties specify
that evidence produced pursuant to a request is admissible in
the Requesting State if it is authenticated by a custodian of
records or other qualified person who completes a
certification, which is usually located in a specified form
appended to the treaty.\33\ The negotiators agreed that it is
desirable to have uniform procedures for certifying or
authenticating evidence obtained under the Treaty. Taking into
account the internal laws of both Contracting Parties, the
negotiators developed three certification forms for
establishing the authenticity of such evidence. The forms are
appended to the diplomatic notes that were exchanged between
the Contracting Parties on November 23, 1993. The
authentication procedure for business records to be employed in
United States requests is based on Title 18, United States
Code, Section 3505.
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\33\ See, e.g., U.S.-Thailand Mutual Legal Assistance Treaty, Mar.
19, 1986, arts. 8, 9 & 11, T.I.A.S. No. --; U.S.-Cayman Islands Mutual
Legal Assistance Treaty, July 3, 1986, arts. 8, 9 & 14, T.I.A.S. No. --
; U.S.-Bahamas Mutual Legal Assistance Treaty, June 12 & Aug. 18, 1987,
arts. 9, 13 & 15, T.I.A.S. No. --; U.S.-Spain Mutual Legal Assistance
Treaty, Nov. 20, 1990, arts. 8, 9 & 14, T.I.A.S. No. --; U.S.-Argentina
Treaty, Dec. 4, 1990, arts. 8, 9 & 14, T.I.A.S. No. --.
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Article 9--Records of government agencies
Paragraph 1 obliges each Contracting Party to furnish the
other with copies of publicly-available records of government
departments and agencies. The term ``government departments and
agencies'' includes all executive, judicial and legislative
units of the federal, state and local levels of government in
both Contracting Parties.
Paragraph 2 provides that the Requested State ``may'' share
with the Requesting State copies of non-public information
located in its government files. The obligation under this
provision is discretionary. Moreover, the article states that
the Requested State may only exercise its discretion to provide
information in its files ``to the same extent and under the
same conditions'' as it would reveal the information to its own
law enforcement or judicial authorities. The Central Authority
of the Requested State determines to which extent and under
which conditions disclosure will be permitted.
The discretionary nature of this provision was deemed
necessary because some government files may contain information
that would be available to domestic investigative authorities
but would be deemed inappropriate for release to a foreign
government. For example, assistance under the Treaty would be
considered inappropriate when release of the information
requested would identify or endanger an informant, prejudice
sources of information needed in future investigations or
reveal information that was given to the Requested State in
return for a promise that it not be divulged. Of course, a
request also may be denied under this provision if disclosure
of the information is barred by the law of the Requested State.
The United States delegation discussed whether this article
should serve as a basis for the exchange of information in tax
matters. It was the intention of the United States delegation
that the United States be able to provide assistance under the
Treaty in tax matters and that such assistance include tax
return information when appropriate. Therefore, the United
States delegation was satisfied that the Treaty constitutes a
``convention relating to the exchange of tax information'' \34\
for purposes of Title 26, United States Code, Section
6103(k)(4). The United States has the discretion to provide tax
return information to Korea under this article in appropriate
cases.
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\34\ 26 U.S.C. Sec. 6103(k)(4).
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Pursuant to the November 23, 1993, exchange of diplomatic
notes between the Contracting Parties, documents provided under
this article may be authenticated under the provisions of the
Hague Convention Abolishing the Requirement of Legalization for
Foreign Public Documents,\35\ to which both the United States
and Korea are signatories. Thus, the diplomatic notes
accompanying the Treaty establish a procedure for
authenticating official foreign records by certification that
is consistent with Rule 902(3) of the Federal Rules of Evidence
and Rule 44, Federal Rules of Civil Procedure.
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\35\ Oct. 5, 1961, 33 U.S.T. 883, T.I.A.S. No. 10072, 527 U.N.T.S.
189.
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Paragraph 3, like article 8(5), states that documents
authenticated under this paragraph shall be ``admissible'' at
trial. The judicial authority presiding at the trial, however,
maintains the authority to determine whether the evidence
should in fact be admitted. As with article 8, evidentiary
tests other than authentication (such as relevance and
materiality) must be established in each case. Appropriate
forms for certifying the evidence are appended to the
diplomatic notes exchanged on November 23, 1993.
Article 10--Testimony in the Requesting State
This article provides that upon request, the Requested
State shall invite witnesses who are located in its territory
to travel to the Requesting State. An appearance in the
Requesting State under this article is not mandatory; the
invitation may be refused by the prospective witness. The
Requesting State is expected to pay the expenses of such an
appearance pursuant to article 6.
Article 11--Transfer of persons in custody
In some criminal cases, a need arises for the testimony in
one country of a witness in custody in another country. In some
instances, a foreign country involved has been willing and able
to ``lend'' the witness to the United States, provided the
witness would be carefully guarded while in the United States
and would be returned at the conclusion of the testimony. On
occasion, the Justice Department has arranged for consenting
federal inmates in the United States to be transported to
foreign countries to assist in their criminal proceedings.\36\
This article provides an express legal basis for cooperation in
these matters. The provision is based on article 26 of the
United States-Switzerland Treaty, which in turn is based on
article 11 of the European Convention on Mutual Assistance in
Criminal Matters.
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\36\ For example, in September, 1986, the United States Justice
Department and the United States Drug Enforcement Administration
arranged for the transfer of four federal prisoners to the United
Kingdom to testify for the Crown in the case of Regina v. Dye,
Williamson, Ells, Davies, Murphy and Millard, a major narcotics
prosecution in ``the Old Bailey'' (Central Criminal Court) in London.
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There have been recent situations in which a defendant in
custody in the United States has demanded permission to travel
to another country to be present at a deposition to be taken
there in connection with the defendant's criminal case.\37\
Paragraph 2 addresses this situation.
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\37\ See, e.g., United States v. King, 552 F.2d 833 (9th Cir. 1976)
(defendants insisted on traveling to Japan to be present at deposition
of certain witnesses in prison).
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Paragraph 3 provides express authority for the receiving
State to maintain the person in custody while in the receiving
State unless the sending State specifically authorizes release
of the person. The paragraph also authorizes the receiving
State to return the person in custody to the sending State as
soon as circumstances permit, or as otherwise agreed to. The
transfer of a person in custody under this article requires the
consent of the person and of the Contracting Parties. The
provision does not require that the person consent to being
returned to the sending State.
It is inappropriate for the receiving State to hold the
person transferred and require receipt of an extradition
request in order to return the person transferred to the
sending State. The paragraph contemplates that extradition
proceedings are not required before the status quo is restored
by the return of the person transferred. The person is to
receive credit for time served while in the custody of the
receiving State.
Article 12--Safe conduct
This article, like article 27 of the United States-
Switzerland Treaty, provides that a person who is in the
Requesting State for testifying or for confrontation purposes
pursuant to a request under articles 10 or 11 shall be immune
from criminal prosecution, detention or any restriction on
personal liberty, or service of process in a civil suit while
present in the Requesting State. This ``safe conduct'' is
limited to events arising from acts or convictions that
preceded the person's departure from the Requested State. This
provision does not inhibit the prosecution of a person for
perjury or other crimes committed while in the Requesting
State.
Paragraph 2 states that the safe conduct guaranteed expires
15 days after the Requested State has been officially notified
and the person's presence is no longer required, or if the
person leaves the Requesting State and voluntarily returns to
it thereafter.
Article 13--Location or identification of persons or items
This article, a standard provision in all United States
mutual legal assistance treaties, provides for the
ascertainment of the location or identity of persons (such as
witnesses, potential defendants or experts) or items believed
to be in the Requested State. This information must be sought
in connection with an investigation or proceeding covered by
the Treaty. The Treaty requires only that the Requested State
employ its ``best efforts'' to locate the persons or items
sought by the Requesting State.
The obligation to locate persons or items is limited to
persons or items that are or may be located in the territory of
the Requested State. Thus, the United States is not obliged to
attempt to find persons or items that might be in third
countries. In all cases, the Requesting State is expected to
supply all available information about the last known location
of any person or item sought.
Article 14--Service of documents
This article creates an obligation for the Requested State
to employ its ``best efforts'' to effect the service of
summonses, complaints, subpoenas and other legal documents on
behalf of the Requesting State.
It is expected that when the United States is the Requested
State, service under the Treaty will be made by registered mail
(in the absence of any request by Korea to follow a different
specified procedure for service) or by the United States
Marshals Service when personal service is requested.
Paragraph 2 requires that when the documents to be served
call for the appearance of a person in the Requesting State,
the documents must be received by the Central Authority of the
Requested State not later than 30 days before the date set for
any such appearance. The negotiators agreed that this 30-day
advance notice would be appropriate in most cases, but they
left open the possibility for the Central Authorities to agree
to permit service with less advance notice.
Paragraph 3 requires that proof of service be returned to
the Requesting State.
Article 15--Search and seizure
It is sometimes in the interests of justice for one country
to ask another to search for, secure, and deliver articles or
objects needed as evidence or for other purposes. United States
courts can and do execute such requests under Title 28, United
States Code, Section 1782. \38\
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\38\ See, e.g., United States ex rel. Public Prosecutor of
Rotterdam, Netherlands v. Van Aalst, Case No. 84-67-Misc.-018 (M.D.
Fla., Orlando Div.).
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This article creates a formal framework for handing such
requests. The article requires that the request include
``information justifying such action under the laws of the
Requested State.'' Accordingly, a Korean request to the United
States must be supported by a showing of probable cause for the
search and seizure. A United States request to Korea must
satisfy the corresponding evidentiary standard for a search and
seizure in Korea. It is contemplated that the search and
seizure will be carried out in strict accordance with the law
of the Requested State.
Paragraph 2 is designed to ensure that a record is kept of
the chain of custody of articles seized pursuant to the Treaty.
This provision effectively requires that the Requested State
keep detailed and reliable records regarding the condition of
the article at the time of seizure and the chain of custody
between seizure and delivery to the Requesting State. Paragraph
2 also provides that the certification is admissible without
the need for additional authentication at trial in the
Requesting State, thereby relieving the Requested State of the
burden and expense of sending its law enforcement officers to
the Requesting State to testify as to authentication and chain
of custody. The injunction that the certificates be admissible
without additional authentication does not preclude the trier
of fact from finding evidence inadmissable, despite the
presence of a certificate, for some other reasons besides a
defect in authenticity or the chain of custody.
Paragraph 3 states that the Requested State need not
surrender any articles it has seized unless it is satisfied
that any interests of third parties in the seized items are
adequately protected. This permits the Requested State to
insist, for example, that the Requesting State promise to
return the article to the Requested State at the conclusion of
the proceeding in the Requesting State. This article is similar
to provisions in many United States extradition treaties. \39\
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\39\ See, e.g., U.S.-United Kingdom Extradition Treaty, June 8,
1972, art. 13, 28 U.S.T. 227, T.I.A.S. No. 8468, 1049 U.N.T.S. 167;
U.S.-Canada Extradition Treaty, Dec. 3, 1971, art. 15, 27 U.S.T. 983,
T.I.A.S. No. 8237; U.S.-Japan Extradition Treaty, Mar. 3, 1978, art.
13, 31, U.S.T. 892, T.I.A.S. No. 9625, 1203 U.N.T.S. 225; U.S.-Mexico
Extradition Treaty, May 4, 1978, art. 19, 31 U.S.T. 5059, T.I.A.S. No.
9656.
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Article 16--Return of items
This article requires that any documents, records or
articles of evidence furnished under the Treaty be returned to
the Requested State as soon as possible if the Requested State
requests their return. It is anticipated that unless original
records or articles of some intrinisic value are provided, the
Requested State routinely will waive its right to their return.
Article 17--Assistance in forfeiture proceedings
A major goal of the Treaty is to enhance the effectiveness
of the Contracting Parties in combatting narcotics trafficking.
One significant strategy involves the efforts of United States
authorities in seizing and confiscating money, property and
other proceeds of drug trafficking.
This article is similar to article 17 of the United States-
Canada Treaty and article 15 of the United States-Thailand
Treaty. Paragraph 1 authorizes the Central Authority of each
Contracting Party to notify the other Central Authority of the
existence in the latter's territory of proceeds of serious
offenses such as drug trafficking. The term ``fruits or
instrumentalities'' is intended to include items such as money,
vessels or other valuables that either were used in the
commission of the crime or were purchased or obtained as a
result of the crime.
Upon receipt of notification under this article, the
Central Authority of the Contracting Party in which the fruits
of instrumentalities are located may take whatever action is
considered appropriate under its law. For instance, if the
assets in question are located in the United States and were
obtained as a result of a fraud in Korea, the assets may be
seized in aid of a prosecution under Title 18, United States
Code, Section 2314,\40\ or may be subject to a temporary
restraining order in anticipation of a civil action for the
return of the assets to the lawful owner.
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\40\ This statute makes it an offense to transport money or
valuables in interstate or foreign commerce knowing that they were
obtained by fraud in the United States or abroad. 18 U.S.C. Sec. 2314.
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If the assets are the proceeds of drug trafficking, the
negotiators contemplated that the Contracting Parties will be
especially willing to help one another pursuant to article 17.
Title 18, United States Code, Section 981(a)(1)(B) allows for
the forfeiture to the United States of property
which represents the proceeds of an offense against a
foreign nation involving the manufacture, importation,
sale, or distribution of a controlled substance (as
such term is defined for the purposes of the Controlled
Substance Act) within whose jurisdiction such offense
or activity would be punishable by death or
imprisonment for a term exceeding one year if such act
or activity had occurred within the jurisdiction of the
United States.\41\
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\41\ E.g., 18 U.S.C. Sec. 981(a)(1)(B).
It is anticipated that Korea's assistance in forfeiture actions
pursuant to article 17 will enable this legislation to be even
more effectively implemented. Title 18, United States Code,
Section 981(a)(1)(B) is consistent with laws in other
countries, such as Switzerland and Canada. There is a growing
trend among nations toward legislation of this kind in the
battle against narcotics trafficking.\42\
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\42\ For example, article 3 of the United Nations Draft Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
calls for the signatory nations to enact broad legislation to forfeit
illicit drug proceeds and to assist one another in such matters. A
Report on the Status of the Draft, the U.S. Negotiating Position, and
Issues for the Senate, S. Rpt. No. 100-64, 100th Cong., 1st Sess. 6-11,
25-26 (1987).
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Paragraph 2 states that the Contracting Parties shall aid
one another in proceedings relating to the forfeiture of the
fruits or instrumentalities of offenses. It specifically
recognizes that authorities in the Requested State may take
immediate action to restrain temporarily the disposition of
assets pending further proceedings. Thus, if the law of the
Requested State enables it to seize assets in aid of a
proceeding in the Requesting State or to enforce judgement of
forfeiture levied in the Requesting State, the Treaty
encourages the Requested State to do so. The language of this
article was carefully selected, however, so as not to require
either Contracting Party to take any action that would exceed
its internal legal authority. It does not mandate the
institution of forfeiture proceedings or the initiation of
temporary restraints by either Contracting Party against
property identified by the other if the prosecuting authorities
do not deem it appropriate to do so.\43\
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\43\ Unlike United States law, Korean law does not allow for
forfeiture in civil cases. However, Korean law does permit forfeiture
in criminal cases. Accordingly, a defendant must be convicted in order
for Korea to confiscate property.
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United States law permits the government to transfer a
share of certain forfeited property to other countries that
participate directly or indirectly in the seizure or forfeiture
of the property. Under regulations promulgated by the Attorney
General, the amount transferred generally reflects the
contribution of the foreign government in the law enforcement
activity that led to the seizure and forfeiture of the
property. The law requires that the transfer be authorized by
an international agreement between the United States and the
foreign country and be agreed to by the Secretary of State.\44\
Article 17, which is consistent with this framework, enables
either Contracting Party to transfer forfeited assets or the
proceeds of the sale of such assets to the other to the extent
permitted by its laws.
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\44\ 18 U.S.C. Sec. 981(i)(1).
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Article 18--Compatibility with other treaties, agreements or
arrangements
This article states that assistance and procedures provided
for by the Treaty shall not prevent assistance under any other
international convention or agreement between the Contracting
Parties. It also provides that the Treaty shall not be deemed
to prevent recourse to any other assistance available under the
internal laws of either Contracting Party. Thus, the Treaty
leaves the provisions of United States and Korean law regarding
letters rogatory undisturbed and does not alter any pre-
existing agreements concerning investigative assistance, such
as the Protocol Amending the Single Convention on Narcotic
Drugs, 1961.\45\
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\45\ Mar. 25, 1972, 26 U.S.T. 1439, T.I.A.S. No. 8118.
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Article 19--Consultation
Experience has shown that as the parties to a treaty of
this kind work together over the years, they become aware of
various practical ways to make the treaty more effective and
their own efforts more efficient. This article calls upon the
Contracting Parties to share those ideas with one another and
encourages them to agree on the implementation of such
measures. Practical measures of this kind might include methods
of keeping each other informed of the progress of
investigations and cases in which Treaty assistance was
utilized, and the use of the Treaty to obtain evidence that
might otherwise be sought via methods less acceptable to the
Requested State. Very similar provisions are contained in
recent United States mutual legal assistance treaties.\46\
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\46\ See, e.g., U.S.-Canada Mutual Legal Assistance Treaty, Mar.
18, 1985, T.I.A.S. No. --; U.S.-Cayman Islands Mutual Legal Assistance
Treaty, July 3, 1986, T.I.A.S. No. --; U.S.-Argentina Mutual Legal
Assistance Treaty, Dec. 4, 1990, T.I.A.S. No. --.
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Article 20--Ratification, entry into force, and termination
Paragraphs 1 and 2 and standard treaty provisions that set
forth the procedures for the ratification, exchange of
instruments of ratification and entry into force of the Treaty.
Paragraph 3 states that the Treaty shall apply to requests
presented pursuant to it even if the relevant acts or omissions
occurred before the date on which the Treaty enters into force.
Provisions of this kind are common in law enforcement
agreements, and similar provisions are found in most United
States extradition treaties.
Paragraph 4 contains a standard provision for termination
of the Treaty. A Contracting Party must give three months
notice of its intent to terminate the Treaty.
VIII. Text of the Resolution of Ratification
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of The Treaty Between the United States of America
and the Republic of Korea on Mutual Legal Assistance in
Criminal Matters, signed at Washington on November 23, 1993,
together with a Related Exchange of Notes signed on the same
date. The Senate's advice and consent is subject to the
following two provisos, which shall not be included in the
instrument of ratification to be signed by the President:
Nothing in the Treaty requires or authorizes
legislation or other action by the United States of
America that is prohibited by the Constitution of the
United States as interpreted by the United States.
Pursuant to the rights of the United States under
this Treaty to deny requests which prejudice its
essential public policy or interest, the United States
shall deny a request for assistance when the Central
Authority, after consultation with all appropriate
intelligence, anti-narcotic, and foreign policy
agencies, has specific information that a senior
government official who will have access to information
to be provided under this Treaty is engaged in a
felony, including the facilitation of the production or
distribution of illegal drugs.