U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

99–112

" SENATE ! 104TH 1st

Session

TREATY DOC.

1995

104–1

TREATY WITH THE REPUBLIC OF KOREA ON

MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND

THE REPUBLIC OF KOREA ON MUTUAL LEGAL ASSISTANCE IN

CRIMINAL MATTERS, SIGNED AT WASHINGTON ON NOVEMBER

23, 1993, TOGETHER WITH A RELATED EXCHANGE OF NOTES

SIGNED ON THE SAME DATE

JANUARY 12, 1995.—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, January 12, 1995.

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 Korea on Mutual Legal Assistance in Criminal Matters,

signed at Washington on November 23, 1993, with a related exchange of notes signed the same date. Also transmitted for the information of the Senate is the report of the Department of State

with respect to this 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 members of drug cartels, ‘‘white-collar’’ criminals, and terrorists. The Treaty is self-executing.

The Treaty provides for a broad range of cooperation in criminal

matters. Mutual assistance available under the treaty includes: (1)

taking testimony or statements of persons; (2) providing documents, records, and articles of evidence; (3) serving documents; (4)

locating or identifying persons or items; (5) transferring persons in

custody for testimony or other purposes; (6) executing requests for

searches and seizures; (7) assisting in forfeiture proceedings; and

(8) rendering any other form of assistance not prohibited by the

laws of the Requested States.

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, November 17, 1994.

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 Republic of Korea on

Mutual Legal Assistance in Criminal Matters (the ‘‘Treaty’’), signed

at Washington on November 23, 1993, together with a related exchange of notes signed on the same date. I recommend that the

Treaty and the related 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

with Argentina, THe Bahamas, Canada, Italy, Mexico, Morocco, the

Netherlands, Spain, Switzerland, Thailand, Turkey, the United

Kingdom (concerning the Cayman Islands), and Uruguay. Other

similar treaties have been signed and ratified by the United States

(but have not yet entered into force) with Belgium, Colombia, and

Jamaica. In addition, treaties with Nigeria and Panama have been

transmitted to the Senate and await Senate consideration. This

Treaty contains many provisions similar to those in the other treaties. It will enhance our ability to investigate and prosecute a variety of offenses, including violent crimes, drug trafficking, and fraud

and other white-collar crimes. The Treaty is designed to be self-executing and will not require implementing 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

articles of evidence; serving documents; locating or identifying persons or items; transferring persons in custody for testimony or

other purposes; executing requests for searches and seizures; assisting in forfeiture proceedings; and any other form of assistance

not prohibited by the laws of the Requested State. The scope of the

Treaty includes not only criminal offenses, but also proceedings related to criminal matters, which may be civil or administrative in

nature. The article makes it clear that the Treaty is not designed

to be utilized by nongovernmental parties or institutions who seek

evidence for use in solely private matters. Similarly, the Treaty is

not intended to create any right in a private person to suppress or

exclude evidence.

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 is the Attorney General

or a person designated by the Attorney General. For the Republic
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of Korea, the Central Authority is the Minister of Justice or a person designated by the Minister of Justice.

Article 3 sets forth the circumstances under which a State may

deny assistance under the Treaty. A request may be denied if it relates to a political or military offense that would not be a crime

under ordinary criminal law, or if the Central Authority of the Requested State has substantial grounds to believe that compliance

with the request would promote prosecution or punishment based

on race, religion, nationality or political opinion. In addition, a request may be denied if its execution would prejudice the security

or similar essential interests of the Requested State.

Article 3 also gives the Requested State the discretion to deny assistance if the conduct that is the subject of the request would not

constitute an offense under the laws of the Requested State. This

basis for denial, however, does not apply if the conduct in question

falls under one of 23 categories of serious crimes described in the

annex to the Treaty, for which assistance must be provided without

regard to whether the conduct would be punishable under the laws

of the Requested State.

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 it deems necessary. If the Requesting State accepts assistance subject to conditions, it shall comply

with the conditions. If the Central Authority of the Requested State

denies assistance, it shall uniform 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 case. The article specifies further information to be provided

to the extent necessary and possible to assist in locating individuals and effecting particular types of assistance. Unless otherwise

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

Article 5 requires the Requested State to comply promptly with

a request, or to transmit it to the authorities with jurisdiction to

do so. The competent authorities of the Requested State shall do

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

Requested State shall have authority to issue subpoenas, search

warrants, or other orders necessary to execute the request.

Requests are to be executed in accordance with the laws of the

Requested State unless the Treaty provides otherwise. However,

the method of execution specified in the request shall 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 the request would interfere with an ongoing criminal

investigation or proceeding, it may postpone execution or, after consultations with the Requesting State, impose conditions on such

execution. If the Requesting State accepts assistance subject to

such conditions, it shall comply with them.

Article 5 further requires the Requested State, if so requested, to

use its best efforts to keep confidential a request and its contents,
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and to inform the Requesting State if the request cannot be executed without breaching confidentiality.

Article 6 apportions between the two States the costs incurred in

executing a request. Generally, each State shall bear the expenses

incurred within its territory in executing a request.

Article 7 obliges the Requesting State not to use any information

or evidence obtained under the Treaty for purposes unrelated to

the proceedings stated in the request without prior consent of the

Requested State. If the Requested State requests that information

or evidence furnished be kept confidential, the Requesting State is

required to use its best efforts to comply with the conditions specified. Once information is made public in the Requesting State in

accordance with the Treaty, no further limitations on use apply.

Article 8 provides that the Requested State may compel, if necessary, the taking of testimony or production of documents or other

evidence in its territory on behalf of the Requesting State. The article requires the Requested State, upon request, to inform the Requesting State in advance of the date and place of the taking of testimony.

Article 8 also requires the Requested State to permit the presence of any persons specified in the request (such as the accused,

counsel for the accused, or other interested persons) and to permit

such persons to question the person whose testimony is being taken

or, if such direct questioning is not permitted, to submit questions

to the appropriate authority. 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 be taken and the claim made known to

the Requesting State for resolution by its authorities.

Finally, Article 8 provides a mechanism for authentication of documentary evidence produced pursuant to this article and provides

that no further authentication or certification shall be necessary in

order for such information to be admissible in evidence in proceedings in the Requesting State.

Article 9 requires that the Requested State provide the Requesting State with copies of publicly available records or information of

government departments and agencies. The Requested State may

further provide copies of other 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

to its own law enforcement or judicial authorities. Article 9 requires authentication of documents furnished in the manner specified in the request and confirms their admissibility in evidence in

the Requesting State if so authenticated.

Article 10 provides a mechanism for the Requesting State to invite the voluntary appearance and testimony in its territory of a

person located in the Requested State. The Central Authority of

the Requested State is required to invite the person to appear and

to promptly inform the Requesting State of the person’s response.

Article 11 provides for the voluntary transfer to one State of a

person in custody in the other State for purposes of assistance

under the Treaty, provided that the person in question and both

States agree. The article establishes the express authority and the

obligation of the Requesting State to maintain the person trans-
viii

ferred in custody unless other wise authorized by the Requested

State. If further obligates the Requesting State to return the person to the Requested State as soon as circumstances permit or as

otherwise agreed by the States, without the need for extradition

proceedings.

Article 12 provides that a person voluntarily appearing in the

Requesting State pursuant to Article 10 or 11 shall be immune

from criminal prosecution, detention, or any restriction of personal

liberty, and shall not be subject to service of process while he is in

the Requesting State. This ‘‘safe conduct’’ is limited to acts or convictions that preceded the person’s departure from the Requested

State. Any safe conduct provided under this article shall cease 15

days after the person’s presence is no longer required in the Requesting State or whenever the person voluntarily enters that

State after leaving it.

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

ascertain the location or identity of persons or items specified in a

request.

Article 14 requires the Requested State to use its best efforts to

effect service of any documents relating to or forming part of a request under the Treaty. The article further requires that, unless

otherwise agreed, any request for the service of a document inviting a person to appear in the territory of the Requesting State be

received by the Requested State no later than 30 days before the

scheduled appearance. The Requested State is required to return

proof of service.

Article 15 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 further provides for

the certification of the continuity of custody, and the identity and

integrity of any such item in order to preserve its admissibility in

evidence in the Requesting State. In addition, Article provides that

the Central Authority of the Requested State may impose conditions on the transfer of the seized items to protect third-party interests in the property.

Article 16 obliges the Requesting State to return to the Requested State as soon as possible any documents, records, or items

furnished under the Treaty if the Requested State so requests.

Article 17 provides that, if one State becomes aware of fruits or

instrumentalities of offenses that are located in the territory of the

other State and may be forfeitable or otherwise subject to seizure

under the laws of the other State, it may so inform the other State.

Article 17 also obligates the States to assist one another to the extent permitted by their respective laws in proceedings involving the

forfeiture of the proceeds and instrumentalities of crime. The article further permits the States to agree to share forfeited assets, or

the proceeds of their sale, to the extent permitted by their respective laws and upon such terms as they deem appropriate.

Article 18 states that assistance and procedures provided in the

Treaty shall not prevent the granting of assistance under any other

international convention or bilateral agreement between the two

States. The article also states that the Treaty shall not prevent the
ix

granting of assistance available under the national laws of either

State.

Article 19 provides that the Central Authorities of the two States

shall consult, at times mutually agreed upon, concerning the most

effective means to implement the provisions of the Treaty.

Article 20 provides that the Treaty shall be ratified and shall

enter into force upon exchange of instruments of ratification. The

article also includes a provision that allows for requests under the

Treaty to be actionable even if the relevant acts or omissions occurred prior to the date the Treaty entered into force. In addition,

Article 20 allows either State to terminate the Treaty with six

months written notice to the other State.

In an exchange of diplomatic notes accompanying the Treaty, the

two States agree to utilize one of three certificates of authenticity

for business records or foreign public documents requested pursuant to the Treaty. The exchange of notes will enter into force at the

same time as the Treaty.

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,

STROBE TALBOTT.
(1)
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