U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

39–118 

" ! SENATE 108TH CONGRESS

2d Session 

TREATY DOC. 

2004

108–27 

MUTUAL LEGAL ASSISTANCE TREATY WITH 

GERMANY 

MESSAGE 

FROM

THE PRESIDENT OF THE UNITED STATES 

TRANSMITTING

TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE 

FEDERAL REPUBLIC OF GERMANY ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT WASHINGTON ON OCTOBER 14, 2003; AND A RELATED EXCHANGE OF NOTES 

NOVEMBER 16, 2004.—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 


E:\Seals\Congress.#13
(III)

LETTER OF TRANSMITTAL 

THE WHITE HOUSE, November 16, 2004. 

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 United 

States of America and the Federal Republic of Germany on Mutual 

Legal Assistance in Criminal Matters, signed at Washington on October 14, 2003, and a related exchange of notes. 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. 

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; undertaking telecommunications surveillance, undercover investigations, and controlled deliveries; 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. 

(V)

LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, June 14, 2004. 

The PRESIDENT, The White House. 

THE PRESIDENT: I have the honor to submit to you the Treaty Between the United States of America and the Federal Republic of 

Germany on Mutual Legal Assistance in Criminal Matters (‘‘the 

Treaty’’), signed at Washington on October 14, 2003, and a related 

exchange of notes. I recommend that the Treaty and exchange of 

notes 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 by the essential provisions sought by the United States. It is accompanied by an exchange of notes which relates to Articles 9, 10, 

and 11 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. 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. The Parties shall afford assistance in criminal investigations and proceedings, which, in the case of Germany, include those 

relating to regulatory offenses under antitrust law. Assistance also 

shall be granted for investigations and proceedings relating to regulatory offenses as a whole, to the extent they may lead to court 

proceedings or may be referred for criminal prosecution in the Requesting State and would constitute criminal offenses in the Requested State. This will enable assistance for investigations by, for 

example, the Securities and Exchange Commission or the Federal 

Trade Commission. 

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 items; locating or 

identifying persons; serving documents; transferring persons in 

custody for testimony or other purposes; executing requests for 

searches and seizures; undertaking special investigative techniques, such as telecommunications surveillance, undercover investigations, and controlled deliveries; assisting in proceedings related 

to immobilization and forfeiture of assets; assisting in proceedings 

related to 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. This is the first U.S. bilateral MLAT to include 

VI

special investigative techniques among permissible types of assistance. 

Paragraph 3 establishes that requests may be initiated or executed by any competent authority designated in the Appendix to 

the Treaty. For both countries, state as well as federal officials are 

listed as competent authorities. 

Article 1(4) provides that assistance does not depend upon 

whether the conduct that is the subject of the criminal investigation or proceeding in the Requesting State also would constitute a 

criminal or regulatory offense under the laws of the Requested 

State, except in limited circumstances addressed separately in the 

Treaty (e.g., search and seizure under Article 11) . 

Paragraph 5 states that a request under the Treaty is necessary 

in investigations or proceedings involving compulsory process in 

the other State. Where denial of a request or delay in responding 

to it may jeopardize the success of the investigation or proceeding 

in the Requesting State, the Parties are obliged to consult in an effort to achieve a satisfactory result, but if, after 40 days from the 

commencement of such consultations, no such result is reached, 

then the Parties’ obligations under the Treaty are deemed fulfilled, 

and other, non-treaty-based measures may be pursued. 

Article 1(6) 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. Paragraph 7 extends Treaty coverage to criminal investigations and proceedings related to foreign exchange matters only to the extent 

subsequently agreed between the Parties. 

Article 2 provides for the designation of Central Authorities and 

identifies who will fulfill this responsibility. For the United States, 

the Central Authority is the Attorney General or a person designated by the Attorney General. For the Federal Republic of Germany, the Central Authority is the Federal Ministry of Justice. The 

article provides that the Central Authorities are to communicate 

directly with one another for the purposes of the Treaty. However, 

in cases of urgency, the German Federal Cartel Office or a German 

state Ministry of Justice may communicate directly with the U.S. 

Department of Justice. 

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 its execution would prejudice the security 

or other essential public interests of the Requested State. During 

the course of negotiations, Germany indicated that it would review 

on a case-by-case basis whether to deny assistance to a capital 

prosecution in the United States. Several other countries with 

which the United States has concluded MLATs in recent years, including Australia, Austria and Luxembourg, have taken a similar 

position. 

Article 4 obligates the Requested State to effect service of any 

document transmitted to it for this purpose by the Requesting 

State, provided that it is received at least one month before the 

scheduled court appearance of the person to be served. Proof of 

service is to be provided by means of a receipt or an official declaration. A person who is not a national of the Requesting State, 

VII

and who does not answer a summons served upon him or her, is 

not subject to penalty or other coercive measures. 

Article 5 provides a mechanism for a Requesting State to extend 

an invitation to a witness or expert located in the Requested State 

to appear at a proceeding outside the latter’s territory. The Requesting State mut indicate the extent to which the person’s expenses will be paid. 

Article 6 addresses safe conduct. A witness or expert appearing 

in the Requesting State pursuant to a Treaty request may not be 

subjected to suit or detained with respect to acts that preceded departure from the Requested State. A person who appears to answer 

for acts forming the subject of a criminal proceeding is similarly 

not subject to suit or detention except to the extent specified in the 

summons. In both cases, safe conduct ceases 15 days after the appearance, if the person has not left the Requesting State or returns 

to it. 

Article 7 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), unless the person in question does not consent or there are overriding 

grounds for non-transfer. Article 7(4) further establishes both the 

express authority and the obligation of the receiving State to keep 

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 8 provides that the Requested State may authorize the 

transit through its territory of a person whose appearance in a 

criminal investigation or proceeding has been sought by the Requesting State, and obliges the Requested State to keep the person 

in custody during such transit. 

Article 9 requires the Requested State to provide the Requesting 

State with copies of publicly available records in the possession of 

its government offices and agencies. The Requested State may also 

provide copies of records in the possession of a government office 

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 non public documents, entirely or 

in part. 

Article 9 also provides that records provided shall be authenticated either under the provisions of the 1961 Hague Convention 

Abolishing the Requirement of Legalization for Foreign Public Documents or by an attestation of authenticity done by the official responsible for maintaining the records. Alternatively, the official 

may certify the absence or nonexistence of such records. Such authentications and certifications, if they follow the forms contained 

in the exchange of notes to the Treaty, are admissible in evidence 

VIII

in the Requesting State as proof of the truth of the matters they 

address. 

Article 10 states that, insofar as the laws of the Requested State 

allow, a person in the Requested State from whom testimony or 

evidence is requested shall be compelled, if necessary, to appear 

and testify or produce documents, records, information and other 

items. The Requesting State may request that evidence be given 

under oath, and the giving of false testimony is to be subject to 

prosecution under the laws of the Requested State. 

Article 10(3) further requires the Requested State to permit persons specified in the request (such as the accused, counsel for the 

accused, or other interested persons) to be present during execution 

of the request and to allow them to propose questions to be asked 

of the person giving the testimony or evidence. In the event that 

a person whose testimony or evidence is being taken in the Requested State asserts a claim of immunity, incapacity, or privilege 

under the laws of the Requesting State, Article 10(5) provides for 

the Requesting State to be consulted as to the validity of the claim. 

Finally, in order to ensure admissibility in evidence in the Requesting State, Article 10(6) provides a mechanism for authenticating, by means of an attestation, evidence that is produced pursuant to or that is the subject of testimony taken in the Requested 

State. Such attestations are to be certified in accordance with procedures specified in the request, which, in the case of business 

records, may include a certificate or protocol. Evidence so authenticated is admissible in the Requesting State as proof of the truth 

of the matter it addresses. As noted above in connection with Article 9, the Governments have exchanged diplomatic notes setting 

out agreed forms to be relied upon for this purpose. 

Article 11 provides that the Requested State shall execute a request for search and seizure of any item, if the offense is punishable criminally (or by a regulatory fine under German law) under 

the laws of both States, if information is supplied to the Requested 

State justifying such action under its laws, and if the Requesting 

State documents that compulsory production or seizure also could 

be obtained under its laws. This Article further creates a mechanism for certifying, through the use of procedures specified in the 

request, the identity of the item and its chain of custody. A form 

set out in the exchange of diplomatic notes may be utilized for this 

purpose. Certifications following these procedures are admissible as 

proof of the chain of custody in the Requesting State. 

Article 12 identifies three types of special investigative techniques which may be utilized by the Parties, within their possibilities and under the conditions prescribed by domestic law. These 

are: telecommunications surveillance, undercover investigations, 

and controlled deliveries. This MLAT marks the first occasion 

where such techniques have been specifically recognized by the 

United States as types of mutual legal assistance. The provision 

was included at the request of the Federal Republic of Germany. 

Article 13(1) provides that, if the Central Authority of one Party 

becomes aware that proceeds or instrumentalities of offenses that 

may be forfeitable or otherwise subject to seizure are located in the 

other Party, it may so inform the Central Authority of the other 

Party. If the Party receiving such information has jurisdiction, it 

IX

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 of the Party that provided the information of any action 

taken. 

Article 13(2) obligates the Parties 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. This may include action to temporarily immobilize proceeds or instrumentalities. Under Article 

13(3), the Party having custody over proceeds or instrumentalities 

of offenses is required to dispose of them in accordance with its 

laws, including the possibility of transferring assets or proceeds to 

the other Party. 

Article 14 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 enables the Requested State’s Central Authority 

to request that evidence or information it furnishes under the Treaty be kept confidential or used only subject to specified conditions. 

If evidence or information is made subject to conditions, the Requesting State shall use its best efforts to honor them. 

Article 15 addresses conditions in detail. Where the Requested 

State could refuse assistance but instead offers it subject to conditions that are accepted by the Requesting State, the latter is bound 

to comply with the conditions. This Article also requires the Requesting State not to use information or evidence obtained under 

the Treaty for any purposes other than those for which it was 

sought and granted, other than exceptions specified in paragraph 

3, without the prior consent of the Requested State. 

The circumstances under which evidence or information generally may be used without prior consent are: for other purposes 

within the scope of assistance under the Treaty; for prevention of 

a serious criminal offense; in non-criminal judicial or administrative proceedings related to criminal matters; and to avert substantial danger to public security. A Requested State may, however, 

specifically exclude use for one of these purposes in a particular 

case. 

Article 15(4) permits a Requesting State to disclose to a defendant in a criminal proceeding evidence that may be exculpatory or 

that relates to the truth and veracity of a prosecution witness. The 

Requesting State is obliged to notify the Requested State in advance of any such proposed disclosure. In addition, Article 15(5) 

permits the use of information for any purpose once it has been 

made public in the normal course of a criminal proceeding in the 

Requesting State. 

Article 16 provides a special rule for ensuring confidentiality in 

the Requesting State of information or evidence received in connecVerDate Aug 04 2004 06:57 Nov 17, 2004 Jkt 039118 PO 00000 Frm 00009 Fmt 7633 Sfmt 6602 E:\HR\OC\TD027.XXX TD027
X

tion with an antitrust investigation or proceeding. Such information is to receive the same degree of protection as evidence obtained in the Requesting State itself, may be disclosed only to persons or authorities competent for prosecuting antitrust offenses, 

and may be used only in public court proceedings or judicial decisions, absent consent to broader use. 

Article 17 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 urgent situations. Requests not in writing require written confirmation within 

ten days unless the Central Authority of the Requested State 

agrees otherwise. 

Article 18 stipulates that requests may be made in the language 

of either Party, but, if made in the language of the Requesting 

State, shall be accompanied by a translation into the language of 

the Requested State. Translations of documents in the other Party’s language also are required, unless otherwise agreed. 

Article 19 concerns execution of requests. A Requested State 

shall execute a request in accordance with its own criminal law 

and criminal procedure law except to the extent the Treaty provides otherwise. This obligation is to be construed with a view to 

fulfilling the overall objective of the Treaty of promoting cooperation, as recently illustrated in the case of In re Commissioner’s 

Subpoenas, 325 F. 3d 1287 (11th Cir. 2003). In addition, a Requested State must honor requests for use of specific procedures 

unless prohibited under its criminal procedure law. The Requested 

State’s Central Authority shall ensure that the request either is executed or transmitted to the authority having jurisdiction to do so. 

The competent authorities of the Requested State must do everything in their power to execute a request, and its courts shall have 

authority to issue needed orders, including search warrants. 

Requests are to be executed as soon as possible. However, Article 

19(5) permits the Requested State to seek additional information 

necessary to execute the request. In addition, if the Requested 

State determines that execution of a request would interfere with 

an ongoing criminal investigation 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 20 provides that the Requesting State shall return any 

item provided in response to a request, unless return is waived, 

and that the Central Authority of the Requested State may require 

its counterpart in the Requesting State to protect third party interests in a transferred item. 

Article 21 apportions between the two States the costs incurred 

in executing a request. It provides that the Requested State must 

pay all expenses and fees relating to the execution of a request, except for those relating to expert services; translation, interpretation 

and transcription; travel of witnesses or experts outside the Requested State pursuant to Article 5 or inside the Requested State 

pursuant to Article 10; and the transfer of a person in custody outside the Requested State pursuant to Article 7. The article further 

XI

provides that, in the event a request entails extraordinary expenses, consultation between the Central Authorities shall occur in 

order to determine the terms and conditions for continuing execution. 

Article 22 authorizes transfer of a matter to the other Party for 

consideration of possible criminal investigation or prosecution. The 

receiving Party is obliged to notify the referring Party of the ultimate disposition of the matter. 

Article 23 clarifies that, as a general matter, documents and 

records transmitted in response to a request do not require certification, authentication or other legalization except to the extent 

specified in the Treaty. 

Article 24 provides that the Central Authorities shall consult, at 

times mutually agreed, to promote the most effective use of the 

Treaty, and may agree upon practical measures to facilitate the 

Treaty’s implementation. 

Article 25 makes clear that assistance and procedures under the 

Treaty are non-exclusive; other applicable international agreements, arrangements, or provisions of domestic law may be utilized 

instead. Under Article 25(2), assistance may be refused for a tax 

offense if the Requested State regards the offense as being based 

either on taxation in the Requesting State that is contrary to the 

provisions of any double tax convention to which both States are 

party, or, in the case of taxes not covered by any such convention, 

on taxation that is contrary to the fundamental principles of taxation. Finally, Article 25(3) clarifies that police authorities conducting criminal investigations may request assistance directly 

from the other State’s police authorities. Such requests by U.S. police authorities are to be addressed to Germany’s Federal Criminal 

Police Office (BKA). 

Article 26 provides that the Treaty is subject to ratification and 

that the instruments of ratification are to be exchanged as soon as 

possible. The Treaty then enters into force thirty days after the exchange of instruments. Article 26(3) provides that either State may 

terminate the Treaty by written notice to the other State, termination to be effective one year after the date of such notice. 

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. 

(1) 


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