[Senate Executive Report 114-13]
[From the U.S. Government Publishing Office]


114th Congress      }                            {         Exec. Rept.
                                 SENATE
 2nd Session        }                            {           114-13

======================================================================



 
     MUTUAL LEGAL ASSISTANCE TREATY WITH THE REPUBLIC OF KAZAKHSTAN

                                _______
                                

               September 13, 2016.--Ordered to be printed

                                _______
                                

          Mr. Corker, from the Committee on Foreign Relations,
                        submitted the following

                                 REPORT

                   [To accompany Treaty Doc. 114-11]

    The Committee on Foreign Relations, to which was referred 
the Treaty between the United States of America and the 
Republic of Kazakhstan on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on February 20, 2015 (Treaty Doc. 
114-11), 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.................................................5
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 the 
Republic of Kazakhstan on Mutual Legal Assistance in Criminal 
Matters (the ``MLAT with Kazakhstan'' 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 the Republic of Kazakhstan 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 U.S. 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.
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    \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.
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    The Kazakhstan MLAT is the first such treaty between the 
United States and the Republic of Kazakhstan. 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 114-11. What follows is a brief summary of some 
key provisions.

                         III. Major Provisions

    As with most MLATs, the MLAT with the Republic of 
Kazakhstan 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(3) 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; conducting searches and seizures; effecting 
service of judicial documents; sharing certain obtained 
information or evidence with a requesting State; freezing and 
forfeiting assets or property; permitting the transfer of 
persons in custody to the requesting party for testimony or 
other assistance; and other agreed-upon forms of assistance not 
prohibited by the laws of the Requested State.
    Article 1(4) provides that, with the exception of where it 
is specifically required by the laws of the Requested State, 
``dual criminality'' is not a prerequisite for assistance under 
the Treaty.
    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)(b) permitting the denial of a request when it 
would prejudice the requested State's sovereignty, security, 
public order, or other essential interest. In accordance with 
Article 3(3), a request for assistance under the MLAT with the 
Republic of Kazakhstan may be refused when it relates to an 
offense punishable by a deprivation of liberty for less than 
one year or does not give rise to a significant material loss 
compared to the resources deemed required to provide the 
assistance. 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' 
competent authorities to promptly execute requests; and to 
promptly inform the competent authority of the requesting state 
of the outcome of the execution of a request. The requested 
State is under no obligation to provide translations of 
responsive materials, however. 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, unless it is a case where 
extraordinary expenses arise. This allocation of costs is 
common in MLATs to which the United States is a party.
    Article 7 sets forth limitations on the usage or disclosure 
of information acquired pursuant to MLAT requests. The Central 
Authority of the requested State may ask that the requesting 
party refrain from using or disclosing information or evidence 
acquired under the MLAT for purposes other than the proceedings 
stated in the request; if such a request is made, compliance 
with the request is mandatory. However, nothing in Article 7 
precludes, to the extent required under the constitution of the 
requesting party, the disclosure or use of information or 
evidence in a criminal proceeding.
    Articles 8-16 set forth in detail the procedures to be 
employed in the case of specific types of requests for legal 
assistance. In Article 10, a person appearing in the requesting 
State shall not be subject to service of process or detention 
or any other form of deprivation of liberty for conduct that 
preceded entry into the territory. Such a person may not be 
obliged to provide assistance on any unrelated matter. Unless 
the Central Authority chooses to extend it, this guarantee of 
safe conduct only lasts seven days after the person is informed 
his presence is no longer required and he has not departed the 
territory despite his physical ability to do so, or if he 
departs the territory and later voluntarily returns.
    Article 11 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 14 makes provision for maintaining 
a chain of custody for seized evidence, certification of 
relevant officials obviating the need for further 
authentication to provide for admissibility in evidence in the 
courts of the requesting party.
    Article 16 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, whether directly or indirectly; are 
instrumentalities or intended to be used in the commission of a 
crime; or is equivalent in value to such property. The 
requirement to provide assistance arises with respect to both 
criminal conviction-based forfeitures and non-criminal 
forfeitures and other restraints of assets premised on 
underlying criminal conduct.

                          IV. Entry Into Force

    In accordance with Article 20, this Treaty shall enter into 
force upon the exchange of instruments of ratification between 
the United States and the Republic of Kazakhstan.

                      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. On June 23, 2016, the committee 
considered this treaty and ordered it favorably reported by 
voice vote, with a quorum present and without objection.

               VII. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the MLAT 
with the Republic of Kazakhstan, which would enhance law 
enforcement cooperation between the United States and 
Kazakhstan, 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 in its resolution of advice and 
consent one declaration, which is discussed below.

Declaration

    The committee has included a proposed declaration in the 
resolution of advice and consent, which states that the MLAT 
with the Republic of Kazakhstan 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\2\ and with the historical practice of the committee 
in approving mutual legal assistance treaties.\3\ The Senate 
has rarely included statements regarding the self-executing 
nature of treaties in resolutions of advice and consent, but in 
light of the recent Supreme Court decision, Medellin v. Texas, 
128 S.Ct. 1346 (2008), the committee has determined 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.
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    \2\Treaty Doc. 114-11 at p. V (stating that ``The [MLAT with 
Kazakhstan] is self-executing and will not require further implementing 
legislation.'').
    \3\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.'').
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         VIII. 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 Republic of 
Kazakhstan 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.

SECTION 2. DECLARATION

     The advice and consent of the Senate under section 1 is 
subject to the following declaration:
          The Treaty is self-executing.

                                  [all]