[Senate Treaty Document 106-36]
[From the U.S. Government Publishing Office]
106th Congress Treaty Doc.
SENATE
2d Session 106-36
_______________________________________________________________________
TREATY WITH SOUTH AFRICA 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 THE REPUBLIC OF SOUTH AFRICA ON MUTUAL LEGAL ASSISTANCE
IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON SEPTEMBER 16, 1999
July 13, 2000.--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
79-118 (STAR PRINT) WASHINGTON : 2000
LETTER OF TRANSMITTAL
----------
The White House, July 13, 2000.
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 the Republic of South Africa on Mutual Legal
Assistance in Criminal Matters, signed at Washington on
September 16, 1999. 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. Together
with the Extradition Treaty Between the Government of the
United States of America and the Government of the Republic of
South Africa, also signed September 16, 1999, this Treaty will,
upon entry into force, provide an effective tool to assist in
the prosecution of a wide variety of offenses, including
terrorism, organized crime, drug-trafficking offenses, and
other violent crimes as well as money laundering, and other
white collar crimes of particular interest to the U.S. law
enforcement community. 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
restraint or immobilization and confiscation or forfeiture of
assets or property, compensation or restitution, and recovery
or collection of fines; and any other form of assistance not
prohibited by the laws of the Requested State.
I recommend that the Senate give early and favorable
consideration to the Treaty and give its advice and consent to
ratification.
William J. Clinton.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, June 3, 2000.
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 the Republic of South Africa on Mutual Legal
Assistance in Criminal Matters (the ``Treaty''), signed at
Washington on September 16, 1999. 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 with a number of other countries. This
Treaty contains many provisions similar to those in the other
treaties and all of the essential provisions sought by the
United States. It will enhance our ability to investigate and
prosecute a variety of offenses, including terrorism, organized
crime, drug-trafficking offenses, and other violent crimes, as
well as money laundering and other forms of white collar crime
of particular interest to the U.S. law enforcement community.
The Treaty is designed to be self-executing and will not
require new legislation.
Article 1 sets forth a now-exclusive 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
restraint or immobilization and confiscation or forfeiture of
assets or property, compensation or restitution, and recovery
or 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 offenses, but also in proceedings related to
criminal matters, which may be civil or administrative in
nature. Article 1(3) states that assistance shall be provided
without regard to whether the conduct that is the subject of
the investigation, prosecution or proceeding in the Requesting
State would constitute an offense under the laws of the
Requested State. Article 1(4) provides that the Treaty is
intended solely for mutual legal assistance between the States
and does not give rise to 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, the Central Authority is the
Attorney General or a person designated by the Attorney
General. For South Africa, the Central Authority is the
Director-General of the Department of Justice or a person
designated by the Director-General. The Article also provides
that the Central Authorities shall communicate directly with
one another for the purposes of the Treaty. Such communication
may, in exceptional circumstances, be effected through
diplomatic channels or through Interpol. 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: (a) it relates to a political offense (a term
expected to be defined on the basis of the term's usage in
extradition treaties); (b) it relates to an offense under
military law that would not be an offense under ordinary
criminal law; (c) its execution would prejudice the national
security or any other essential interests of the Requested
State; or (d) it is not made in conformity with the Treaty.
Article 3(2) establishes several categories of offenses
that are not to be considered political offenses under the
Treaty: (a) a murder or other violent crime against a Head of
State or Deputy Head of State of the Requesting or Requested
State; (b) an offense for which both the Requesting or
Requested State have an obligation pursuant to a multilateral
international agreement to extradite the person sought or to
submit the case to their respective competent authorities for
decision as to prosecution (e.g., the Convention for the
Suppression of Unlawful Seizures of Aircraft, done at the Hague
on 16 December 1970, 22 UST 1641, TIAS 7192); (c) murder; (d)
an offense involving kidnapping, abduction, or any form of
unlawful detention, including the taking of a hostage; and (e)
attempting or conspiring to commit, aiding, abetting, inducing,
counseling or procuring the commission of, or being an
accessory before or after the fact to such offenses. Before
denying assistance, the Central Authority of the Requested
State is required under Article 3(3) 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 such
conditions, it is required to comply with them. If the Central
Authority of the Requested State denies assistance, it is
required under Article 3(4) 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. The Article permits requests to be
made in other forms in emergency situations, but requires
written confirmation within ten days unless the Central
Authority of the Requested State agrees otherwise. The request
must be in English.
Article 5 concerns execution of requests. Article 5(1)
requires the Central Authority of the Requested State to
execute the request promptly or, when appropriate, to transmit
it to the authority having jurisdiction to do so. It provides
that the competent authorities of the Requested State shall do
everything in their power to execute a request, and that the
courts 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 necessary arrangements for representation
of the Requesting State in the Requested State in any
proceedings arising out of a request for assistance.
Under Article 5(3), requests are to be executed in
accordance with the laws of the Requested State, including the
terms of the Treaty. However, the method of execution specified
in the request is to be followed except insofar as it is
prohibited by the laws of the Requested State. Under Article
5(4), if the Central Authority of the Requested State
determines that execution of the request would interfere with
an ongoing criminal investigation, prosecution, or proceeding
in that State, it may postpone execution or, after consulting
with the Central Authority of the Requesting State, impose
conditions on execution. If the Requesting State accepts
assistance subject to such conditions, it shall comply with
them.
Article 5(5) further requires the Requested State, if so
requested, to use its best efforts to keep confidential a
request and its contents and to inform the Central Authority of
the Requested State if the request cannot be executed without
breaching confidentiality. This provides the Requested State an
opportunity to decide whether to pursue the request or to
withdraw it in order to maintain confidentiality.
Article 5 additionally requires the Requested State's
Central Authority to respond to reasonable inquiries concerning
progress in executing a request; to report promptly to the
Requested State's Central Authority the outcome of its
execution; and, if the request cannot successfully be executed
in whole or in part, to inform the Requested State's Central
Authority of the reasons therefor.
Article 6 sets forth the mechanism for authentication or
certification of information or evidence furnished under this
Treaty. Article 6(1) specifies the forms (attached as Forms A,
B, and E) to be used upon request by the United States, for
authentication or certification of information or evidence
provided to the United States under Articles 9, 10 and 16 and
the forms (attached as Forms C and D) to certify the absence or
non-existence of evidence. Article 6(c) provides that
information or evidence authenticated or certified using the
specified forms, as well as forms certifying the absence of
records, shall be admissible in the United States as proof of
the matters set forth therein.
Article 6(2) specifies the conditions under which
authentication or certification of such information or evidence
provided to South Africa will be required, upon request by
South Africa. It also provides that the substantive form of the
attestation, affidavit or declaration required will be
communicated by South Africa's Central Authority to its
counterpart in the United States from time to time.
Specifically, Article 6(2)(b) provides that in the case of
court records of judicial proceedings, it is sufficient if a
copy of such records is certified as a true copy of the
original recorded by the relevant judicial officer or another
competent authority in the United States. Moreover, all
documents subject to a South African request for certification
or authentication are to be accompanied by a certificate
(attached as Form F), although Article 6(2) does provide that
such authentication or certification may be made in the manner
in which foreign documents are authenticated or certified to
enable them to be produced in any court in the Republic of
South Africa. In the case of documents contemplated in Article
10 of the Treaty, both Form F and the South African manner of
authentication or certification are sufficient mechanisms for
authentication or certification of evidence furnished to the
Republic of South Africa.
Article 7 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State shall pay all costs, except for the following items to be
paid by the Requested State: fees of expert witnesses; costs of
translation, interpretation, and transcription; and the
allowances and expenses related to travel of persons pursuant
to Articles 11, 12 and 13. If, during the execution of a
request, it become apparent that fulfillment of the request
will entail expenses of an extraordinary nature, Article 7
indicates that the Central Authorities will consult to
determine the terms and conditions under which execution may
continue.
Article 8(1) requires the Requested State to comply with
any request by the Central Authority of the Requested State
that information or evidence obtained under the Treaty not be
used in any investigation, prosecution, or proceeding other
than that described in the request without its prior consent.
Further, under Article 8(2), if the Requested State's Central
Authority asks that information or evidence furnished under
this Treaty be kept confidential or be used subject to
specified conditions, and the Requesting State accepts the
information subject to such conditions, the Requested State
must use its best efforts to comply with the conditions. Once
information is made public in the Requested State in accordance
with either of these provisions, it may thereafter be used for
any purpose. Article 8(3) provides that nothing in Article 8
prevents the use or disclosure of information to the extent
that there is an obligation to do so under the Constitution of
the Requested State in criminal proceedings. The Requested
State is obliged to notify the Requested State in advance of
any such proposed use or disclosure.
Article 9 provides that a person in the Requested State
from whom testimony or evidence is requested pursuant to the
Treaty shall be compelled, if necessary, to appear and testify
or produce items, including documents, records, and articles of
evidence. Article 9(2) requires the Central Authority of the
Requested State, upon request, to furnish information in
advance about the date and place of the taking of testimony or
evidence pursuant to this Article.
Article Article 9(3) further requires the Requested State
to permit the presence of persons specified in the request
(such as the accused, counsel for the accused, or other
interested persons) and to permit them to question, directly or
indirectly, 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 9(4) provides that the
testimony or evidence shall be taken and the claim made known
to the Central Authority of the Requested State for resolution
by its authorities.
Article 10 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of organs of State and government departments
and agencies in the Requested State. Under Article 10(2), the
Requested State may also provide copies of any documents,
records, or information which are in the possession of an organ
of State or a government department or agency in that State,
but which are 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 discretion to deny such requests entirely or in part.
Article 11(1) provides a mechanism for the Requesting State
to invite the voluntary appearance in its territory of a person
located in the Requested State, indicating the extent to which
the expenses will be paid. The Requested State is to inform the
Central Authority of the Requesting State promptly of the
person's response. Article 11(2) provides that the Central
Authority of the Requesting State may, in its discretion,
determine that a person appearing in the Requesting State
pursuant to this Article shall not be subject to service of
process, or be detained or subjected to any restriction of
personal liberty, by reason of any acts or convictions that
preceded the person's departure from the Requested State. Under
Article 11(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 the
person, having left the Requesting State, voluntarily returns.
The Central Authority of the Requesting State may, in its
discretion, extend this safe conduct period for up to fifteen
days if it determines that there is good cause to do so.
Article 12 provides that a person in the custody of either
State, whose presence for purposes of assistance under the
Treaty is sought, may be transferred from the custody of one
State to the custody of the other State provided that the
person concerned and both Central Authorities consent and any
terms or conditions set by the transferring State will be
adhered to by the receiving State. These conditions may include
that the receiving State shall have the authority and the
obligation to keep the person transferred in custody unless
otherwise authorized by the sending State; that the receiving
State shall return the transferred person to the custody of the
sending State as soon as circumstances permit or as otherwise
agreed to by the Central Authorities; that the sending State is
not required to initiate extradition proceedings or return of
the person transferred; and that the person transferred
receives credit for service of the sentence imposed in the
sending State for time served in the custody of the receiving
State. Under this Article, for example, a witness incarcerated
in the Requested State could be transferred to the Requesting
State to testify in a trial, or a defendant in the Requesting
State could be transferred to attend a witness deposition in
the Requested State if the person consents and the Central
Authorities of both States agree.
Article 13 provides that the Requested State may authorize
the transit through its territory of a person held in custody
by a third State whose personal appearance has been requested
by the Requesting State to give testimony or evidence or
otherwise provide assistance in an investigation, prosecution
or proceeding. It further states that, where such transit is
authorized, the Requested State shall have the authority and
the obligation to keep the person in custody during transit in
accordance with the laws of the Requested State, including the
terms of the Treaty.
Article 14 obligates the Requested State to use its best
efforts to ascertain the location or identity of persons or
items in the Requested State specified in a request.
Article 15 obligates the Requested State to use its best
efforts to effect service of any document relating, in whole or
in part, to a request for assistance under the Treaty. A
request for the service of a document requiring a person to
appear before an authority in the Requesting State must be
transmitted a reasonable time before the scheduled appearance.
Proof of service is to be provided by the Requested State in
the manner specified in the request.
Article 16 obligates the Requested 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 Article also provides that, upon request, every official
who has custody of a seized item is required to certify the
continuity of the item's custody, the identity of the item, and
the integrity of its condition. Article 16(3) further provides
that the Central Authority of the Requested State may impose
terms and conditions deemed necessary to protect third-party
interests in items to be transferred.
Article 17 provides that the Central Authority of the
Requested State may require its counterpart in the Requesting
State to return any documents, records or articles of evidence
furnished to it in execution of a request under the Treaty as
soon as possible.
Article 18(1) provides that, if the Central Authority of
one Contracting State becomes aware of proceeds of crimes or
instrumentalities or objects used in the commission of crimes
that are located in the other State and may be forfeitable or
otherwise subject to seizure under the laws of that State, it
may so inform the Central Authority of that other State. If the
State receiving such information has jurisdiction in this
regard, it may present this information to its authorities for
a determination whether any action is appropriate. The Central
Authority of the State receiving such information is required
to inform the Central Authority of the State that provided the
information of any action taken.
Article 18 also obligates the Contracting States to assist
each other to the extent permitted by their respective laws in
proceedings relating to restraint or immobilization of proceeds
of crimes and instrumentalities or objects used in the
commission of crimes, confiscation or forfeiture of proceeds of
crimes and instrumentalities or objects used in the commission
of crimes, recovery or collection of fines imposed by courts as
sentences in criminal proceedings and compensation or
restitution to victims of crime. The State having custody over
proceeds of crimes and instrumentalities or objects used in the
commission of crimes is required to dispose of them in
accordance with its laws. Either State may transfer to the
other State all or part of such assets or property, or the
proceeds of their sale, to the extent permitted under the
transferring State's laws and upon such terms as it deems
appropriate.
Article 19 states that assistance and procedures provided
in the Treaty shall not prevent either Contracting State from
granting assistance through the provisions of other applicable
international agreements or through the provisions of its
domestic law. The States may also provide assistance pursuant
to any bilateral arrangement, agreement or practice that may be
applicable.
Article 20 provides that the Central Authorities shall
consult, at times mutually agreed, to promote the most
effective use of the Treaty, and that they may agree upon such
practical measures as may be necessary to facilitate the
Treaty's implementation.
Article 21 states that the Treaty shall apply to any
assistance contemplated in Article 1, whether the acts were
committed before, on, or after the date upon which the Treaty
enters into force and that nothing in the Treaty shall be
deemed to require or authorize any action by the Requested
State that is contrary to the constitution of that State.
Article 22 provides that the Treaty shall be subject to
ratification and shall enter into force upon the exchange of
instruments of ratification. It further provides that either
State may terminate the Treaty by written notice to the other
State through the diplomatic channel, termination to take
effect six months following the date of notification.
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 Justice and State, and will be transmitted 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,
Frank E. Loy.