U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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99–118

" SENATE ! 104TH CONGRESS

1st Session

TREATY DOC.

1995

104–18

TREATY WITH THE PHILIPPINES ON MUTUAL LEGAL

ASSISTANCE IN CRIMINAL MATTERS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED

STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC

OF THE PHILIPPINES ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, SIGNED AT MANILA ON NOVEMBER 13, 1994

SEPTEMBER 5, 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, September 5, 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 the Philippines on Mutual Legal Assistance in Criminal

Matters, signed at Manila on November 13, 1994. I transmit also,

for the information of the Senate, the report to 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 activity more effectively. The Treaty will enhance our ability to investigate and prosecute a wide variety of crimes, including

drug trafficking 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 of testimony or statements of persons; providing documents,

records, and items 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 proceedings related to forfeiture of assets, restitution, and collection of fines; and 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, August 2, 1995.

The PRESIDENT, The White House.

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 the Philippines on Mutual Legal Assistance in

Criminal Matters (the ‘‘Treaty’’), signed at Manila on November 13,

1994. 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 Argentina, the Bahamas, Canada, Italy, Jamaica, Mexico, Morocco, the Netherlands, Spain, Switzerland, Thailand, Turkey, the

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

Other similar treaties with Belgium, Colombia, and Panama have

been signed by the United States and have received Senate advice

and consent (but have not yet entered into force). In addition, treaties with the United Kingdom, South Korea, and Nigeria have been

transmitted to the Senate, where they await Senate consideration.

The Treaty with the Philippines contains many provisions similar

to those in other recent treaties. It will enhance our ability to investigate and prosecute a variety of offenses, including drug trafficking and terrorism offenses of particular interest to the U.S. law

enforcement community. The Treaty is designed to be self-executing and will not require implementing legislation.

Article 1 sets forth a non-exhaustive list of the major types of assistance provided under the Treaty, including taking the testimony

or statements of persons; providing documents, records and items

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

proceedings related to forfeiture of assets, restitution, and collection of fines; and rendering 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.

Article 1 states that assistance shall be provided without regard

to whether the conduct involved would constitute an offense under

the laws of the Requested State. This paragraph is important because United States and Philippine criminal law differ significantly

and a requirement of dual criminality (which is a standard aspect

of extradition treaties but which we prefer not to include in mutual
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legal assistance treaties) would have limited the areas in which assistance is available.

Article 1 states explicitly that it is not intended to create rights

in private parties 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, Central Authority is the Attorney General or a person designated by the Attorney General. For the Republic of the

Philippines, the Central Authority is the Secretary of Justice or a

person designated by the Secretary of Justice. The article provides

that the Central Authorities shall communicate directly with one

another, or through diplomatic channels, for the purposes of the

Treaty.

Article 3 sets forth the limited 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 political offense

or to a military offense that would not be a crime under ordinary

criminal law. In addition, a request may be denied if its execution

would prejudice the security or similar essential interests of the

Requested State, or if it 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 these conditions, it is

required to comply with the conditions. If the Central Authority of

the Requested State denies assistance, it is required 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 other forms of request in emergency situations but requires written confirmation within ten days

thereafter unless the Central Authority of the Requested State

agrees otherwise. All requests and supporting documents are to be

submitted in English unless otherwise agreed.

Article 5 requires the Central Authority of the Requested State

to execute the request promptly or 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 courts or other competent authorities

of the Requested State shall have authority to issue subpoenas or

other orders necessary to execute the request. 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.

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 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 the request would interfere with

an ongoing investigation, prosecution, or proceeding, it may post-
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pone execution or, after consulting with the Central Authority of

the Requesting State, impose conditions on execution. If the Requesting State accepts assistance subject to conditions, it shall

comply with them.

Article 5 further requires the Requested State, if asked to do so,

to use its best efforts to keep confidential a request and its contents, and to inform the Requesting State’s Central Authority if the

request cannot be executed without breaching confidentiality. This

provides the Requesting State an opportunity to decide whether to

pursue the request or to withdraw it in order to maintain confidentiality.

The article requires the Requested State’s Central Authority to

respond to reasonable inquiries by the Requesting State’s Central

Authority regarding the status of the execution of a particular request; to report promptly to the Requesting State’s Central Authority the outcome of its execution; and, if the request is denied, to

inform the Requesting State’s Central Authority in writing of the

reasons for the denial.

Article 6 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 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 to comply with any request by the Central Authority of the Requested State that information or evidence obtained under the Treaty not be used for proceedings other than those described in the request without its prior

consent. Further, if the Requested State’s Central Authority asks

that information or evidence furnished be kept confidential or be

used in accordance with specified 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, no further limitations on use apply.

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 use or disclosure.

Article 8 provides that a person in the Requested State from

whom evidence is requested pursuant to the Treaty shall be compelled, if necessary, to appear and testify or produce evidence. The

article 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.

Article 8 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 the extent allowed

by its laws, to permit 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 provides

that the testimony or evidence shall be taken and the claim made
VIII

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 provides a mechanism for authenticating

evidence that is produced pursuant to or that is the subject of testimony taken in the Requested State.

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

of government departments or agencies. The Requested State may

further provide copies of records or information in the possession

of a government department or agency, but not publicly available,

to the 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 such requests entirely or

in part. Article 9 also provides that no further authentication shall

be necessary for admissibility into evidence in the Requesting State

of official records where the official in charge of maintaining them

authenticates the records through the use of Form B appended to

this 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 shall indicate the extent to which the expenses will be paid.

The Central Authority of the Requesting State has discretion to

determine that a person appearing in the Requesting State 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 his departure from the Requested State. 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 returned to it. An extension of up to fifteen days for

good cause may be granted by the Requesting State’s Central Authority in its discretion.

Article 11 provides for 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 deposition taken in the presence of the defendant), provided

that the person in question and the Central Authority of the Requested State agree. The article also provides for 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 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 return of the person transferred is subject to terms and conditions

agreed to by the Central Authorities, and the sending State is not

required to initiate extradition proceedings for return of the person
IX

transferred. The person transferred 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 a

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 a

request 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 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. It provides that, upon request,

every official who has custody of a seized item is required to certify,

through the use of Form C, the continuity of custody, the identity

of the item, and the integrity of its condition. No further certification is required. The certificate is admissible in evidence in the

Requesting State. The article 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 15 requires the Requesting State’s Central Authority,

upon request of the Requested State’s Central Authority, to return

documents, records, or items obtained in the execution of a request

as soon as possible or, if agreed by the Central Authorities, to dispose of such documents, records, or items in a mutually acceptable

manner.

Article 16 provides that, if the Central Authority of one Contracting Party becomes aware of proceeds or instrumentalities of offenses that are located in the other Contracting Party and may be

forfeitable or otherwise subject to seizure, it may so inform the

Central Authority of that other Party. If the party 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 also obligates the Contracting 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 collection of fines imposed as sentences in criminal prosecutions. The Party having custody over proceeds or instrumentalities of offenses is required to

dispose of them in accordance with its laws. Either Party may

share forfeited assets, or the proceeds of their sale, to the extent

not prohibited by the transferring Party’s laws and upon such

terms as it deems appropriate.

Article 17 states that assistance and procedures provided in the

Treaty shall not prevent either Contracting Party from granting assistance through the provisions of other applicable international

agreements or through the provisions of its national laws.
X

Article 18 provides that the Central Authorities shall consult, at

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

Treaty, and may agree upon such practical measures as may be

necessary to facilitate Treaty implementation.

Article 19 provides that the Treaty shall apply to any request

presented after the date of its entry into force regardless of whether the relevant acts or omissions occurred prior to that date.

Article 20 provides that the Treaty shall be subject to ratification, instruments of ratification shall be exchanged in Manila as

soon as possible, and the Treaty shall enter into force upon the exchange of the instruments of ratification. Article 20 further provides that either Party may terminate the Treaty by six months’

written notice of the other Party.

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,

PETER TARNOFF.
(1)
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