U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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59–118

" ! SENATE 105TH CONGRESS

2d Session

TREATY DOC.

1998

105–42

TREATY WITH BRAZIL 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 FEDERATIVE REPUBLIC OF BRAZIL ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT BRASILIA ON OCTOBER 14, 1997

APRIL 28, 1998.—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.

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, April 28, 1998.

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

Federative Republic of Brazil on Mutual Legal Assistance in Criminal Matters, signed at Brasilia on October 14, 1997. 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 that the United States is negotiating 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 modern

criminals, including those involved in terrorism, other violent

crimes, drug trafficking, money laundering, and other ‘‘white-collar’’ crime. The Treaty is self-executing, and will not require new

legislation.

The Treaty provides for a broad range of cooperation in criminal

matters. Mutual assistance available under the Treaty includes:

(1) Locating or identifying persons or items; (2) serving documents; (3) taking testimony or statements of persons; (4) transferring persons in custody for testimony or other purposes; (5) providing documents, records, and items; (6) executing requests for

searches and seizures; (7) assisting in proceedings related to immobilization and forfeiture of assets, restitution, and collection of

fines; and (8) 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.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington.

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 Federative Republic of Brazil on Mutual Legal

Assistance in Criminal Matters (‘‘the Treaty’’), signed at Brasilia on

October 14, 1997. 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 countries. This Treaty contains many provisions

similar to those in the other treaties.

The Treaty will enhance our ability to investigate and prosecute

a variety of offenses, including drug trafficking, terrorism, other

violent crimes, and money laundering and other white-collar crime.

The Treaty is designed to be self-executing and will not require

new legislation.

Article 1 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

items; locating or identifying persons or items; 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,

and collection of fines; and providing any other form of assistance

not prohibited by the laws of the Requested States.

The scope of the Treaty includes not only the investigation, prosecution, and prevention of criminal offenses, but also forfeiture,

restitution, and collection of fines, and other proceedings related to

criminal matters, which may be civil or administrative in nature.

Moreover, assistance under the Treaty is to be provided without regard to dual criminality (i.e., whether the conduct involved would

constitute an offense under the laws of both States).

Article 1(4) states that the Parties recognize the particular importance of combating serious criminal activities, including money

laundering and the illicit trafficking in firearms, ammunition, and

explosives, and that the Parties shall provide each other with assistance with respect to such matters. However, the paragraph was

not intended by the negotiators to require the Parties to give priority or special treatment to assistance with respect to the specified

offenses; accordingly, the paragraph expressly provides that the
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commitment to provide assistance regarding such offenses imposes

no limitation on the scope of assistance established under the Article.

Article 1 also states explicitly that the Treaty is intended solely

for mutual legal assistance between the Parties. The Treaty provisions shall not give rise to a right on the part of any private person

to obtain, suppress, or exclude any evidence, or to impeded the execution of a request.

Article 2 provides for the establishment of Central Authorities

and defines the Central Authorities for purposes of the Treaty. For

the United States, the Central Authority shall be the Attorney

General or a person designated by the Attorney General. For

Brazil, the Central Authority shall be the Ministry of Justice. The

Article provides that the Central Authorities shall make and receive requests pursuant to the Treaty, and that the Central Authorities shall communicate directly with one another for purposes

of the Treaty.

Article 3 sets forth the circumstances under which the Central

Authority of the Requested State 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 similar essential interests

of the Requested State; or if the request is not made in conformity

with the Treaty.

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 it deems necessary. If the Requesting State accepts assistance subject to conditions, it is required to comply with them. If the Central Authority of the Requested State denies assistance, it must inform the Central Authority of the Requesting State of the reasons for the denial.

Article 4 prescribes the form and contents of requests under the

Treaty, specifying in detail the information required in each request. The Article provides that requests for assistance shall be in

writing except that the Central Authority of the Requested State

may accept a request in another form in urgent situations. In such

cases, unless the Central Authority of the Requested State agrees

otherwise, the request must be confirmed in writing within thirty

days thereafter. Unless otherwise agreed, all requests and supporting documents shall be in the language of the Requested State.

Article 5 requires that the Central Authority of the Requested

State promptly execute requests or, when appropriate, transmit

them to the authority having jurisdiction to do so. The Article provides that the competent authorities of the Requested State shall

do everything in their power to execute a request. The Courts of

the Requested State shall issue subpoenas, search warrants, or

other orders necessary to execute the request.

The Central Authority of the Requested State must make all necessary arrangements for and meet the costs of representation of the

Requesting State in any proceedings arising out of a request for assistance pursuant to the Treaty. Under Article 5(3), requests are to

be executed in accordance with the laws of the Requested State except to the extent that the Treaty provides otherwise. However, the
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method of execution specified in the request is to be followed except

insofar as it is prohibited by the laws of the Requested State.

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, after consultations with the Central Authority of

the Requesting State, impose conditions on such execution. If the

Requesting State accepts assistance subjects to such conditions, it

must comply with them.

Article 5(5) further requires the Requested State, if so requested

by the Requesting State, to use its best efforts to keep confidential

a request and its contents. If the request cannot be executed without breaching such confidentiality, the Central Authority of the Requested State must so inform the Central Authority of the Requesting State. This provides the Requesting States with the opportunity to decide whether to pursue the request or to withdraw it

in order to maintain confidentiality.

Finally, Article 5 requires the Central Authority of the Requested

State to respond to reasonable inquiries by the Central Authority

of the Requesting State concerning progress toward execution of

the request; to promptly inform such Central Authority of the outcome of the execution of the request; and, if the execution of the

request is denied, delayed, or postponed, to inform such Central

Authority of the reasons therefor.

Article 6 apportions between the two States the costs incurred in

executing a request. It provides that the Requested State shall pay

all such costs, except for the following items, which shall be paid

by the Requesting State: fees of expert witnesses, the costs of

translation, interpretation, and transcription, and the allowances

and expenses related to the travel of persons pursuant to Articles

10 and 11.

Article 7 provides that the Central Authority of the Requested

State may request that the Requesting State not use any information or evidence obtained under the Treaty in any investigation,

prosecution, or proceeding other than that described in the request

without the prior consent of the Central Authority of the Requested

State. The Central Authority of the Requested State may request

that information or evidence furnished under the Treaty be kept

confidential or be used only subject to terms and conditions it may

specify. If the Requesting State accepts the information or evidence

subject to such conditions, it shall comply with the conditions.

These limitations on use to not preclude a constitutionally required

disclosure or use of information in a criminal prosecution. Advance

notice by the Requesting State of such disclosure or use is required.

Once information or evidence has been made public in the Requesting State in a manner consistent with the other provisions of the

Article, no further limitations on use apply, and the information or

evidence may thereafter be used for any purpose.

Article 8 provides that a person in the Requested State from

whom evidence is required pursuant to the Treaty shall be compelled, if necessary, to appear and testify or produce documents,

records, or items. The Article requires the Central Authority of the

Requested State, upon request, to inform the Requesting State in
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advance about the date and place of the taking of testimony or evidence.

Article 8(3) also requires the Requested State to permit the presence of persons designated in the request during the execution of

the request, and to allow such persons to present questions to be

posed to the person giving the testimony or evidence. Article 8(4)

provides that, 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, the testimony or

evidence shall nonetheless be taken and the claim made known to

the Central Authority of the Requesting State so that the claim

may be resolved by the authorities of that State.

Finally, Article 8(5) provides a mechanism for authentication of

documentary evidence produced pursuant to this Article. A form for

use regarding business records is included as an appendix to the

Treaty (Form A). Records authenticated by means of such form

shall be admissible in evidence in the Requesting State.

Article 9 requires that the Requested State provide the Requesting State with copies of publicly available records in the possession

of authorities in the Requested State. The Requested State may

further provide copies of any records, including documents or information in any form, that are in the possession of authorities in

that State, but that are not publicly available, to the same extent

and under the same conditions as such copies would be available

to its own law enforcement or judicial authorities. However, the Requested State has the discretion to deny such requests entirely or

in part. Such official records may be authenticated by the official

in charge of maintaining them through the use of Form B appended to the Treaty. Documents authenticated through the use of

such form shall be admissible in evidence in the Requesting State.

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 is required to indicate the extent to which the expenses of the person will be paid.

The Central Authority of the Requested State is required to invite

the person to appear and promptly to inform the Requesting State

of the person’s response.

Article 10 further provides that the Central Authority of the Requesting State has discretion to determine that a person appearing

in that State pursuant to this Article shall not be subject to service

of process, detained, or subjected to any restriction of personal liberty by reason of acts or convictions that preceded the person’s departure from the Requested State. The Central Authority of the Requesting State is required to notify the Requested State’s Central

Authority whether such safe conduct shall be extended. Any safe

conduct provided for by this Article shall cease seven days after notification by the Central Authority of the Requesting State to its

counterpart in the Requested State that the person’s presence is no

longer required. The safe conduct shall also cease if the person

leaves the Requesting State but voluntarily returns to it. An extension of up to fifteen days may be granted by the Requesting State’s

Central Authority in its discretion.

Article 11 provides for the temporary transfer of a person in custody in the Requested State to the Requesting State for purposes
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of assistance under the Treaty, provided that the person in question and the Central Authorities of both States agree. For example,

a witness incarcerated in the Requested State may be transferred

to the Requesting State to have his deposition taken in the presence of the defendant. The Article also provides for the transfer of

a person in the custody of the Requesting State to the Requested

State for purposes of assistance under the Treaty, subject to the

consent of the person and the Central Authorities of both States.

For example, a defendant in the Requesting State may be transferred for purposes of attending a witness deposition in the Requested State.

Article 11(3) further establishes the express authority and the

obligation of the receiving State to maintain the person transferred

in custody unless otherwise authorized by the sending State. It further obligates the receiving State to return the person to the custody of the sending State as soon as circumstances permit or as

otherwise agreed by both States, and the sending State need not

initiate extradition proceedings for return of the person transferred. The person transferred shall receive credit toward service of

the sentence imposed in the sending State 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 a

request.

Article 13 obligates the Requested State to use its best efforts to

effect service of any documents 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 before an authority in

the Requesting State must be transmitted within a reasonable time

prior to the scheduled appearance. The Requested State is required

to return proof of service in the manner specified in the request.

Article 14 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 provides that, upon request, every official of the Requested State who has had custody of

a seized item shall certify, through the use of Form C appended to

the Treaty, the description of the item, the continuity of its custody, and the integrity of its condition. No further certification is

required, and the certificate shall be admissible evidence in the Requesting State. Article 14 further provides that the Central Authority of the Requested State may impose upon the Requesting State

terms and conditions deemed necessary to protect third party interests in items to be transferred.

Article 15 requires the Central Authority of the Requested State,

upon request of its counterpart in the Requesting State, to return

as soon as possible any documents, records, or items furnished to

it in execution of a request under the Treaty.

Article 16 provides that, if the Central Authority of one Party becomes aware of proceeds or instrumentalities of offenses that are

located in the territory of the other Party and may be forfeitable

or otherwise subject to seizure under the laws of that Party, it may

so inform the Central Authority of that Party. If that Party has jurisdiction, it may present this information to its authorities for a
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determination whether any action is appropriate under its laws,

and such authorities shall, through their Central Authority, notify

the other Party of any action taken.

Article 16 also obligates the Parties to assist each other, to the

extent permitted by their respective laws, in proceedings relating

to forfeiture of proceeds and instrumentalities of offenses, restitution to victims of crime, and the collection of fines imposed as sentences in criminal proceedings. Such assistance may include action

to temporarily immobilize the proceeds or instrumentalities of

crime pending further proceedings. A Party having custody over

proceeds or instrumentalities of offenses is required to dispose of

them in accordance with its laws. Either Party may transfer all or

part of such assets, or the proceeds of their sale, to the other Party,

to the extent permitted by the transferring Party’s laws and upon

such terms as it deems appropriate.

Article 17 states that assistance and procedures set forth in the

Treaty shall not prevent either Party from granting assistance to

the other Party under other applicable international agreements, or

through the provisions of its national laws. The Parties may also

provide assistance to each other through the provisions of any bilateral arrangement, agreement, or practice that may be applicable.

Article 18 provides that the Central Authorities of the parties

shall consult, at times mutually agreed upon, to promote the most

effective use of the Treaty, and may agree on such practical measures as may be necessary to facilitate implementation of the Treaty.

Article 19 states that the Treaty shall apply to requests presented after the date of its entry into force, even if the acts or omissions constituting the offense occurred before that date.

Article 20 provides that the Treaty is subject to ratification and

shall enter into force upon the exchange of the instruments of ratification. The Article also provides that the Parties may amend the

Treaty by mutual agreement, and any such amendment would

enter into force upon a written exchange of notifications between

the Parties, through the diplomatic channel, that all domestic requirements for its entry into force have been completed. Article 20

further provides that either Party may terminate the Treaty by

written notice to the other Party. Such termination would 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 recommending approval of this Treaty by the Senate as soon as possible.

Respectfully submitted.

MADELEINE ALBRIGHT.
(1)
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