[Senate Executive Report 114-12]
[From the U.S. Government Publishing Office]
114th Congress } { Exec. Rept.
SENATE
2nd Session } { 114-12
=======================================================================
MUTUAL LEGAL ASSISTANCE TREATY WITH THE PEOPLE'S DEMOCRATIC REPUBLIC OF
ALGERIA
_______
September 13, 2016.--Ordered to be printed
_______
Mr. Corker, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 114-3]
The Committee on Foreign Relations, to which was referred
the Treaty between the Government of the United States of
America and the Government of the People's Democratic Republic
of Algeria on Mutual Legal Assistance in Criminal Matters,
signed at Algiers on April 10, 2010 (Treaty Doc. 114-3), having
considered the same, reports favorably thereon with one
declaration, as indicated in the resolution of advice and
consent, and recommends that the Senate give its advice and
consent to ratification thereof, as set forth in this report
and the accompanying resolution of advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Major Provisions.................................................3
IV. Entry Into Force.................................................4
V. Implementing Legislation.........................................4
VI. Committee Action.................................................4
VII. Committee Recommendation and Comments............................5
VIII.Text of Resolution of Advice and Consent to Ratification.........5
I. Purpose
The Treaty between the United States of America and Algeria
on Mutual Legal Assistance in Criminal Matters (the ``MLAT with
Algeria'' or ``Treaty'') is one of a series of modern mutual
legal assistance treaties that have been negotiated by the
United States and is designed to provide a formal basis for
mutual cooperation between the United States and Algeria on law
enforcement matters so as to enhance the ability of the United
States to investigate and prosecute crimes.
II. Background
In order for the United States to successfully prosecute
criminal activity that is transnational in scope, it is often
necessary to obtain evidence or testimony from a witness in
another country. While U.S. federal courts may issue subpoenas
to U.S. nationals overseas, they lack the authority to subpoena
foreign nationals found in other countries or the authority to
subpoena evidence in a foreign country. In addition,
effectuating service of a subpoena to U.S. persons abroad may
prove difficult.
In the absence of an applicable international agreement,
the customary method for obtaining evidence or testimony in
another country is via a ``letter rogatory'' which tends to be
an unreliable and time-consuming process. The term ``letter
rogatory'' is generally used to refer to a formal communication
in writing that is sent by a court in which an action is
pending to a court in a foreign country, requesting that
certain evidence or the testimony of a person within the
latter's jurisdiction be formally obtained for use in the
requesting court's pending action. The State Department advises
that the letter-rogatory process can often take a year or more
and, unless undertaken pursuant to an international agreement,
compliance is a matter of judicial discretion. Furthermore, the
scope of foreign judicial assistance might also be limited by
domestic information-sharing laws, such as bank and business
secrecy laws, or be confined to evidence relating to pending
cases rather than preliminary, administrative, or grand jury
investigations conducted prior to the filing of formal charges.
Execution of letters rogatory is usually carried out under the
judicial norms of the responding country. However, responding
country norms may be insufficiently compatible with U.S. law
such that the resulting evidence is rendered inadmissible in a
U.S. court. Mutual Legal Assistance Treaties (``MLATs'') are
designed to overcome these and similar problems.
MLATs are international agreements that establish a formal,
streamlined process by which governments may gather information
and evidence in other countries for use in criminal
investigations and prosecutions. The United States is currently
a party to several dozen MLATs. While the specific provisions
of MLATs vary, they generally obligate treaty partners to take
steps on behalf of a requesting treaty partner when certain
conditions are met. MLATs typically contain provisions
concerning the sharing of collected information between
parties, the location and identification of persons and
potential witnesses within the parties' territories, the taking
of depositions and witness testimony, and the serving of
subpoenas duces tecum on behalf of a requesting treaty
party.\1\ Such provisions provide for the easier acquisition of
evidence and testimony than via letters rogatory and do so in a
manner designed to be compatible with the admissibility
requirements of the requesting State's courts. MLATs also
typically contain provisions concerning the allocation of costs
between parties, the form and content of requests for legal
assistance, the designation of national law enforcement
agencies or officials responsible for treaty administration,
and the grounds for which a treaty party may refuse to provide
legal assistance. Increasingly, MLATs have been used as a tool
to combat terrorism.
---------------------------------------------------------------------------
\1\A subpoena duces tecum is a specific form of subpoena, also
called a ``subpoena for the production of evidence.'' It is a subpoena
issued by a court ordering the parties named to appear and to produce
tangible evidence for use at a hearing or trial.
---------------------------------------------------------------------------
The Algeria MLAT is the first such treaty between the
United States and Algeria and covers any matter within the
jurisdiction of the parties' judicial authorities. In the
absence of this Treaty, there is no obligation to provide
assistance to the United States and thus this Treaty would
substantially enhance the ability of the United States to
investigate and prosecute crimes for which such assistance is
necessary. A detailed paragraph-by-paragraph analysis of this
treaty may be found in the Letter of Submittal from the
Secretary of State to the President on this instrument, which
is reprinted in full in Treaty Document 114-3. What follows is
a brief summary of some key provisions.
III. Major Provisions
As with most MLATs, the MLAT with Algeria generally
obligates the parties to assist each other in criminal
investigations, prosecutions, and related law enforcement
proceedings, as well as civil or administrative proceedings
such as forfeiture proceedings that may be related to criminal
matters. Article 1(2) provides a non-exhaustive list of
assistance to be rendered by each Party, which includes the
taking of evidence, such as testimony, documents, records and
items or things, on a requesting party's behalf by way of
judicial process; executing requests for searches and seizures;
effecting service of judicial documents; sharing certain
obtained information or evidence with a requesting State;
freezing, forfeiting and recovery of assets or property;
permitting the temporary transfer of persons in custody to the
requesting party; and other agreed-upon forms of assistance.
Article 3 sets forth a list of circumstances under which a
requested State may deny legal assistance to the requesting
State. Some of the grounds listed are commonly found in MLATs
to which the United States is a party, such as the ground in
Article 3(1)(c) permitting the denial of a request when it
would prejudice the requested State's sovereignty, security,
public order, or other essential interest; and the military
offense exception in Article 3(1)(a).
Although the United States generally does not impose a
``dual criminality'' requirement upon mutual legal assistance
requests, Article 3(1)(d) of the Algeria Treaty includes a
provision stating that if the Requested state determines that
the conduct that is the subject of the request is not a crime
in the Requested State and execution of the request would
require a court warrant or other compulsory measure as grounds
for denial of a request. Before denying assistance under the
provisions of Article 3, the Requested Party is obligated to
consult with the Requesting Party to consider whether
assistance can be given subject to such conditions as the
Requested Party may deem necessary.
Article 4 prescribes the form and contents of requests
under the Treaty. Article 5 generally obligates both Parties'
Central Authority (as designated under Article 2) to do
everything in their power to execute requests and to respond to
reasonable requests by the Central Authority on the progress
towards execution of the request.
Article 6, which addresses the allocation of costs
associated with providing assistance, provides that the
requested State must pay all costs relating to the execution of
a request, with certain exceptions. Under the Algeria Treaty,
these costs include fees of experts and witnesses, the costs of
translation, interpretation, and transcription, the costs of
utilizing video conferencing, and certain travel expenses. This
allocation of costs is common in MLATs to which the United
States is a party. Article 7 governs confidentiality and use of
the information. The Central Authority of the Requesting Party
shall use its best efforts to keep confidential such
information provided subject to conditions specified by the
Requested Party.
Articles 8-16 set forth in detail the procedures to be
employed in the case of specific types of requests for legal
assistance. Articles 8,9, 10, and 11 govern the control and
collection of evidence, such as documents and records and the
taking of testimony. Article 11 provides for safe conduct of a
person voluntarily appearing in the requesting State. Such
person shall not be subject to prosecution, detention or any
restriction of personal freedom for conduct that preceded entry
into the territory. This guarantee of safe conduct only lasts
fifteen days after the person is informed his presence is no
longer required.
Article 12 provides that, in the case of a transfer of
someone in custody, the receiving party has the authority and
obligation to keep the transferred person in custody, unless
permitted by the sending party to do otherwise. Further, it
must return the person back to the custody of the sending party
as soon as circumstances permit, unless otherwise agreed
between the parties.
Article 18 requires the requested State to assist the
requesting State with measures to freeze or cause the
forfeiture of assets that constitute or are derived from
proceeds of a crime or are instrumentalities or intended to be
used in the commission of a crime.
Article 20 provides for consultations to promote the most
effective use and application of the Treaty.
IV. Entry Into Force
In accordance with Article 22, this Treaty shall enter into
force upon the exchange of instruments of ratification between
the United States and Algeria. Once in force, however, the
Treaty shall apply to all requests presented after the date of
entry into force and the Algeria Treaty continues to cover
requests made prior to the date of termination.\2\
---------------------------------------------------------------------------
\2\See Articles 22(2) and 23(4).
---------------------------------------------------------------------------
V. Implementing Legislation
This treaty, which is self-executing, will be implemented
by the United States in conjunction with applicable federal
statutes, including 18 U.S.C. Sec. 1782. No additional
legislation is needed for the United States to fulfill its
obligations under this Treaty.
VI. Committee Action
The Committee reviewed the Treaty at a briefing on May 23,
2016, at which representatives of the Departments of State and
Justice were present. The Committee considered the Treaty on
June 23, 2016 and ordered it favorably reported by voice vote,
with the recommendation that the Senate give its advice and
consent to the ratification of the Treaty subject to the
declaration set forth in the resolution of advice and consent
to ratification.
VII. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the MLAT
with Algeria, which would enhance law enforcement cooperation
between the United States and Algeria, would further U.S.
efforts in fighting terrorism and transnational crime.
Accordingly, the committee urges the Senate to act promptly to
give advice and consent to ratification of this Treaty, as set
forth in this report and the accompanying resolution of advice
and consent.
The committee has included a proposed declaration in the
resolution of advice and consent, which states that the MLAT
with Algeria is self-executing. This declaration is consistent
with statements made in the Letter of Submittal from the
Secretary of State to the President on this instrument\3\ and
with the historical practice of the committee in approving
mutual legal assistance treaties.\4\ The Senate continues to
include statements regarding the self-executing nature of
treaties in resolutions of advice and consent in light of the
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346
(2008). The committee continues to believe that a clear
statement in the resolution is warranted. A further discussion
of the committee's views on this matter can be found in Section
VIII of Executive Report 110-12.
---------------------------------------------------------------------------
\3\Treaty Doc. 114-3 at p. V (stating that ``The [MLAT with
Algeria] is self-executing. It will not require further implementing
legislation.'').
\4\The committee has consistently expressed the view that mutual
legal assistance treaties are self-executing. See, e.g., Exec. Rept.
107-15 at p. 6 (stating that ``[i]it is anticipated that, for the
United States, the [Mutual Legal Assistance Treaty with Belize] will be
``self-executing.''); and Exec. Rept. 109-14 at p. 6 (stating that
``[t]he committee notes that the provisions of the [Mutual Legal
Assistance Treaties with Germany and Japan] are self-executing.'').
---------------------------------------------------------------------------
VIII. Text of the Resolution of Advice and
Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION.
The Senate advises and consents to the ratification of the
Treaty Between the United States of America and the People's
Democratic Republic of Algeria on Mutual Legal Assistance in
Criminal Matters, signed at Washington on February 20, 2015
(Treaty Doc. 114-11), subject to the declaration of section 2.
SEC. 2. DECLARATION.
The advice and consent of the Senate under section 1 is
subject to the following declaration:
The Treaty is self-executing.
[all]