[Senate Treaty Document 107-13]
[From the U.S. Government Publishing Office]
107th Congress Treaty Doc.
SENATE
2d Session 107-13
_______________________________________________________________________
TREATY WITH BELIZE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
__________
MESSAGE
FROM
THE PRESIDENT OF THE UNITED STATES
transmitting
TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF BELIZE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS,
SIGNED AT BELIZE ON SEPTEMBER 19, 2000, AND A RELATED EXCHANGE OF
NOTES SIGNED AT BELIZE ON SEPTEMBER 18 AND 22, 2000
July 15, 2002.--Treaty was read the first time, and together with the
accompanying papers, referred to the Committee on Foreign Relations and
ordered to be printed for the use of the Senate
__________
U.S. GOVERNMENT PRINTING OFFICE
99-118 WASHINGTON : 2002
LETTER OF TRANSMITTAL
----------
The White House, July 15, 2002.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Treaty Between
the Government of the United States of America and the
Government of Belize on Mutual Legal Assistance in Criminal
Matters, signed at Belize on September 19, 2000, and a related
exchange of notes signed at Belize on September 18 and 22,
2000. I transmit also, for the information of the Senate, the
report of the Department of State with respect to the Treaty.
The Treaty is one of a series of modern mutual legal
assistance treaties being negotiated by the United States in
order to counter criminal activities more effectively. The
Treaty should be an effective tool to assist in the prosecution
of a wide variety of crimes, including drug trafficking, money
laundering, and terrorism offenses. The Treaty is self-
executing.
The Treaty provides for a broad range of cooperation in
criminal matters. Mutual assistance available under the Treaty
includes: taking the testimony or statements of persons;
providing documents, records, and articles of evidence;
locating or identifying persons; serving documents;
transferring persons in custody for testimony or other
purposes; executing requests for searches and seizures;
assisting in proceedings related to immobilization and
forfeiture of assets, restitution to the victims of crime and
collection of fines; and any other form of assistance not
prohibited by the laws of the State from whom the assistance is
requested.
I recommend that the Senate give early and favorable
consideration to the Treaty, and give its advice and consent to
ratification.
George W. Bush.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, May 31, 2002.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
Between the Government of the United States of America and the
Government of Belize on Mutual Legal Assistance in Criminal
Matters (``the Treaty''), signed at Belize on September 19,
2000, and a related exchange of notes signed at Belize on
September 18 and 22, 2000. I recommend that the Treaty be
transmitted to the Senate for its advice and consent to
ratification.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, similar bilateral treaties have
entered into force between the United States and a number of
other countries. This Treaty contains many provisions similar
to those other treaties and all of the essential provisions
sought by the United States. It is accompanied by an exchange
of notes (described below), which relates to Articles 1 and 9
of the Treaty and which forms an integral part of the Treaty.
The Treaty will enhance our ability to investigate and
prosecute a variety of offenses, including money laundering,
drug trafficking, and terrorism offenses of particular interest
to the United States law enforcement community. The Treaty is
designed to be self-executing and will not require implementing
legislation.
Article 1 sets out the scope of assistance available under
the Treaty. Article 1(2) contains a non-exhaustive list of the
major types of assistance to be provided under the Treaty,
including taking the testimony or statements of persons;
providing documents, records, and articles of evidence;
locating or identifying persons; serving documents;
transferring persons in custody for testimony or other
purposes; executing requests for searches and seizures;
assisting in proceedings related to immobilization and
forfeiture of assets, restitution to the victims of crime and
collection of fines; and any other form of assistance not
prohibited by the laws of the Requested State.
The scope of the Treaty includes not only assistance
provided in connection with the investigation, prosecution, and
prevention of criminal offenses, but also proceedings related
to criminal matters, which may be civil or administrative in
nature. Article 1(3) states that, except as otherwise provided
in the Treaty, assistance is to be provided without regard to
whether the conduct involved would constitute an offense under
the laws of the Requested State.
This Treaty, like the MLAT with Antigua and Barbuda, is
accompanied by an exchange of diplomatic notes which reflects
the Parties' understanding that assistance under the Treaty
includes criminal tax matters. The United States confirmed in
its note that it does not intend to seek assistance under the
Treaty in the routine civil and administrative enforcement of
our income tax laws, including the regulation, imposition,
calculation and collection of such income taxes, which are
unrelated to any criminal matter. This merely restates the
Treaty's scope by virtue of Article 1(1), which is a standard
MLAT provision. The note from the Government of Belize
confirmed its shared understanding on these issues. The
exchange of notes constitutes an integral part of the Treaty.
Article 1(4) states explicitly that the Treaty does not
create a right on the part of any private person to obtain,
suppress or exclude any evidence, or to impede the execution of
a request.
Article 2 provides for the establishment of Central
Authorities and defines Central Authorities for purposes of the
Treaty. For the United States, and likewise for Belize, the
Central Authority is the Attorney General or a person
designated by the Attorney General. The article provides that
the Central Authorities are to communicate directly with one
another for the purposes of the Treaty.
Article 3 sets forth the circumstances under which a
Requested State's Central Authority may deny assistance under
the Treaty. A request may be denied if it relates to a military
offense that would not be an offense under ordinary criminal
law, if its execution would prejudice the security or other
essential public interests of the Requested State, or if it is
not made in conformity with the Treaty. A request may also be
denied if it relates to a political offense (a term the meaning
of which is well-defined in the extradition context and
expected to be defined on that basis in connection with mutual
assistance) or if execution of the request would be contrary to
the Constitution of the Requested State. Although, as Article
1(3) makes clear, ``dual criminality'' is not generally a
prerequisite for assistance under this Treaty, a request may be
denied if it is made pursuant to provisions of the Treaty
governing search and seizure (Article 14) or asset forfeiture
(Article 16) and relates to conduct which would not be an
offense if it had occurred in the Requested State. These last
two grounds for denial are similar to clauses in United States
mutual legal assistance treaties with other countries in the
region, such as St. Kitts and Nevis. Article 3 also allows
denial of assistance if the execution of the request requires
compulsory measures in the Requested State and the request does
not establish that there are reasonable grounds for believing
that the criminal offense specified in the request has been
committed.
Before denying assistance under Article 3, the Central
Authority of the Requested State is required to consult with
its counterpart in the Requesting State to consider whether
assistance can be given subject to such conditions as the
Central Authority of the Requested State deems necessary. If
the Requesting State accepts assistance subject to these
conditions, it is required to comply with them. If the Central
Authority of the Requested State denies assistance, it is
required under Article 3(3) to inform the Central Authority of
the Requesting State of the reasons for the denial.
Article 4 prescribes the form and content of written
requests under the Treaty, specifying in detail the information
required in each request. A request for assistance must be in
writing, except that a request may be accepted in another form
in emergency situations, but would require written confirmation
within ten days thereafter unless the Central Authority of the
Requested State agrees otherwise.
Article 5 concerns execution of requests. Article 5(1)
requires the Central Authority of the Requested State to
execute the request promptly or, where appropriate, to transmit
it to the authority having jurisdiction to do so. It provides
that the competent authorities of the Requested State must do
everything in their power to execute a request, and that
judicial and other authorities of the Requested State have
authority to issue subpoenas, search warrants, or other orders
necessary to execute the request. Under Article 5(2), the
Central Authority of the Requested State must make all
arrangements for and meet the costs of representation of the
Requesting State in any proceedings arising out of an
assistance request.
Article 5(3) provides that requests are to be executed in
accordance with the internal laws and procedures of the
Requested State except to the extent that the Treaty provides
otherwise. Procedures specified in the request must be followed
except to the extent that those procedures cannot lawfully be
followed in the Requested State. Under Article 5(4), if the
Central Authority of the Requested State determines that
execution of a request would interfere with an ongoing criminal
investigation, prosecution, or proceeding in that State, it may
postpone execution or make execution subject to conditions
determined to be necessary after consultations with the Central
Authority of the Requesting State. If the Requesting State
accepts assistance subject to conditions, it must comply with
them.
Article 5(5) further requires the Requested State, if so
requested by the Central Authority of the Requesting State, to
use its best efforts to keep confidential a request and its
contents. The Central Authority of the Requested State must
inform the Requesting State's Central Authority if the request
cannot be executed without breaching such confidentiality. This
provides the Requesting State an opportunity to decide whether
to pursue the request or to withdraw it in order to maintain
confidentiality.
This article also requires the Requested State's Central
Authority to respond to reasonable inquiries by the Requesting
State's Central Authority concerning progress toward execution
of a particular request; to promptly inform the Requesting
State's Central Authority of the outcome of its execution; and,
if the request is denied, to inform the Requesting State's
Central; Authority of the basis for the denial.
Article 6 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State must pay all costs relating to the execution of a
request, except for the following items to be paid by the
Requesting State: fees of expert witnesses; costs of
translation, interpretation and transcription; and allowances
and expenses related to travel of persons pursuant to Articles
10 and 11.
Article 7 requires the Requesting State not to use
information or evidence obtained under the Treaty for any
purposes other than those described in the request without the
prior consent of the Requested State. Further, if the
Requesting State accepts information or evidence under the
Treaty, subject to a request by the Requested State's Central
Authority that it be kept confidential or be used in accordance
with specified terms and conditions, the Requesting State must
use its best efforts to comply with the conditions. Once
information is made public in the Requesting State in
accordance with either of these provisions, it may thereafter
be used for any purpose. Nothing in the Article prevents the
use or disclosure of information to the extent that there is an
obligation to do so under the Constitution of the Requesting
State in a criminal prosecution. The Requesting State is
obliged to notify the Requested State in advance of any such
proposed disclosure.
Article 8 provides that, insofar as the laws of the
Requested State allow, a person in the Requested State from
whom testimony or evidence is requested is to be compelled, if
necessary, to appear and testify or produce items, including
documents, records and articles of evidence. Upon request, the
Central Authority of the Requested State is required to furnish
information in advance about the date and place of the taking
of testimony or evidence pursuant to this Article.
Article 8(3) further requires the Requested State to permit
persons specified in the request (such as the accused, counsel
for the accused, or other interested person) to be present
during execution of the request and to allow them to question
the person giving the testimony or evidence. In the event that
a person whose testimony or evidence is being taken asserts a
claim of immunity, incapacity, or privilege under the laws of
the Requesting State, Article 8(4) provides that the testimony
or evidence is to be taken and the claim made known to the
Central Authority of the Requesting State for resolution by its
authorities. Finally, in order to ensure admissibility in
evidence in the Requesting State, Article 8(5) provides a
mechanism for authenticating evidence that is produced pursuant
to or that is the subject of testimony taken in the Requested
State. Business records authenticated through the use of Form
A, attached to the Treaty, are to be admissible in evidence in
the Requesting State.
Article 9 requires the Requested State to provide the
Requesting State with copies of publicly available records in
the possession of government departments and agencies in the
Requested State. The Requested State may also provide copies of
any documents, records or information in the possession of a
government department or agency, but not publicly available, to
the same extent and under the same conditions as it would
provide them to its own law enforcement or judicial
authorities. The Requested State has the discretion to deny
requests for such nonpublic documents, entirely or in part. The
accompanying exchange of notes confirms one purpose of these
provisions of Article 9; they embody the parties' recognition
of the need in many cases to restrict access to information
collected by revenue authorities. Article 9 also provides that
no further authentication is necessary for admissibility into
evidence in the Requesting State of official records provided
pursuant to this Article where the official in charge of
maintaining them authenticates the records through the use of
Form B appended to the Treaty.
Article 10 provides a mechanism for the Requesting State to
invite the voluntary appearance in its territory of a person
located in the Requested State. The Requesting State must
indicate the extent to which the expenses will be paid and the
Central Authority of the Requested State must promptly inform
its counterpart in the Requesting State of the person's
response. Article 10(2) requires the Central Authority of the
Requesting State to inform the Central Authority of the
Requested State whether a decision has been made by the
relevant competent authorities that a person appearing in the
Requesting State pursuant to this Article is not subject to
service of process or detention or any restriction of personal
liberty by reason of any acts or convictions that preceded his
departure from the Requested State. Under Article 10(3), any
safe conduct provided for by this Article ceases seven days
after the Central Authority of the Requesting State has
notified the Central Authority of the Requested State that the
person's presence is no longer required, or if the person has
left the Requesting State and voluntarily returns to it. An
extension of up to fifteen days for good cause may be granted
by the Requesting State's competent authorities in their
discretion.
Article 11 provides for the temporary transfer of a person
in custody in the Requested State to the Requesting State for
purposes of assistance under the Treaty (for example, a witness
incarcerated in the Requested State may be transferred to the
Requesting State to have his testimony taken in the presence of
the defendant), provided that the person in question consents
and the Central Authorities of both States agree. The Article
also provides for the voluntary transfer of a person in the
custody of the Requesting State to the Requested State for
purposes of assistance under the Treaty (for example, a
defendant in the Requesting State may be transferred for
purposes of attending a witness deposition in the Requested
State), if the person consents and if the Central Authorities
of both States agree.
Article 11(3) further establishes both the express
authority and the obligation of the receiving State to maintain
the person transferred in custody unless otherwise authorized
by the sending State. The person transferred must be returned
to the custody of the sending State as soon as circumstances
permit or as otherwise agreed by the Central Authorities, and
the sending State is not required to initiate extradition
proceedings for the return of the person transferred. The
person transferred also receives credit for time served in the
custody of the receiving State.
Article 12 requires the Requested State to use its best
efforts to ascertain the location or identity of persons or
items specified in the request.
Article 13 obligates the Requested State to use its best
efforts to effect service of any document relating, in whole or
in part, to any request for assistance under the Treaty. A
request for the service of a document requiring a person to
appear in the Requesting State must be transmitted a reasonable
time before the scheduled appearance. Proof of service is to be
provided in the manner specified in the request.
Article 14 obligates the Requesting State to execute
requests for search, seizure, and delivery of any item to the
Requesting State if the request includes the information
justifying such action under the laws of the Requested State.
The Requesting State may request that every official who has
custody of a seized item certify, through the use of Form C
appended to the Treaty, the continuity of custody, the identity
of the item, and the integrity of its condition. No further
certification is to be required and the certificate is
admissible in evidence in the Requesting State. Article 14(3)
further provides that the Central Authority of the Requested
State may require that the Requesting State agree to terms and
conditions deemed necessary to protect third party interests in
the item to be transferred.
Article 15 provides that the Central Authority of the
Requested State may require its counterpart in the Requesting
State to return items furnished to it in execution of a request
as soon as possible.
Article 16(1) provides that, if the Central Authority of
one State becomes aware that proceeds or instrumentalities of
offenses that may be forfeitable or otherwise subject to
seizure are located in the other State, it may so inform the
Central Authority of that other State. If the State receiving
such information has jurisdiction, it may present this
information to its authorities for a determination whether any
action is appropriate. The Central Authority of the Party
receiving such information is required to inform the Central
Authority that provided the information of any action taken.
Article 16(2) obligates the States to assist each other to
the extent permitted by their respective laws in proceedings
relating to the forfeiture of the proceeds and
instrumentalities of offenses, restitution to victims of crime,
and collection of fines imposed as sentences in criminal
prosecutions. Under Article 16(3), the State having custody
over proceeds or instrumentalities of offenses is required to
dispose of them in accordance with its laws. Either State may
stare all or part of such assets, or the proceeds of their
sale, with the other State, to the extent not prohibited by the
transferring State's laws and upon such terms as it deems
appropriate.
Article 17 states that assistance and procedures provided
in the Treaty do not prevent either State from granting
assistance to the other State through the provisions of other
applicable international agreements or through the provisions
of its national laws. The States may also provide assistance
pursuant to any bilateral arrangement, agreement, or practice
that may be applicable.
Article 18 provides that the Central Authorities must
consult, at times mutually agreed, to promote the most
effective use of the Treaty, and may agree upon such practical
measures, including training and technical assistance, as may
be necessary to facilitate the Treaty's implementation.
Article 19 provides that the Treaty is subject to
ratification and the instruments are to be exchanged at
Washington as soon as possible, whereupon the Treaty enters
into force. Article 19(3) provides that the Treaty applies to
requests presented after the date of its entry into force,
whether the relevant acts or omissions occurred prior to or
after that date. Article 19(4) further provides that either
State may terminate the Treaty by written notice to the other
State, termination to be effective six months after the date of
receipt of such notice.
A Technical Analysis explaining in detail the provisions of
the Treaty is being prepared by the United States negotiating
delegation, consisting of representatives from the Departments
of State and Justice, and will be trransmitted separately to
the Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate as soon as
possible.
Respectfully submitted,
Colin L. Powell.