U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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39–118

" ! SENATE 105TH CONGRESS

1st Session

TREATY DOC.

1997

105–25

INTER-AMERICAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS WITH RELATED OPTIONAL PROTOCOL

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

INTER-AMERICAN CONVENTION ON MUTUAL ASSISTANCE IN

CRIMINAL MATTERS, ADOPTED AT THE TWENTY-SECOND REGULAR SESSION OF THE ORGANIZATION OF AMERICAN STATES

(OAS) GENERAL ASSEMBLY MEETING IN NASSAU, THE BAHAMAS, ON MAY 23, 1992, AND THE OPTIONAL PROTOCOL RELATED

TO THE INTER-AMERICAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS, ADOPTED AT THE TWENTY-THIRD

REGULAR SESSION OF THE OAS GENERAL ASSEMBLY MEETING

IN MANAGUA, NICARAGUA, ON JUNE 11, 1993. BOTH INSTRUMENTS SIGNED ON BEHALF OF THE UNITED STATES AT OAS

HEADQUARTERS IN WASHINGTON ON JANUARY 10, 1995

SEPTEMBER 3, 1997.—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 3, 1997.

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 Inter-American Convention on

Mutual Assistance in Criminal Matters (‘‘the Convention’’), adopted

at the twenty-second regular session of the Organization of American States (OAS) General Assembly meeting in Nassau, The Bahamas, on May 23, 1992, and the Optional Protocol Related to the

Inter-American Convention on Mutual Assistance in Criminal Matters (‘‘the Protocol’’), adopted at the twenty-third regular session of

the OAS General Assembly meeting in Managua, Nicaragua, on

June 11, 1993. Both of these instruments were signed on behalf of

the United States at the OAS headquarters in Washington on January 10, 1995. In addition, for the information of the Senate, I

transmit the report of the Department of State with respect to the

Convention and the Protocol.

When ratified, the Convention and the Protocol will constitute

the first multilateral convention between the United States and

other members of the OAS in the field of international judicial cooperation in criminal matters. The provisions of the Convention

and Protocol are explained in the report of the Department of State

that accompanies this message.

The Convention and Protocol will establish a treaty-based system

of judicial assistance in criminal matters analogous to that which

exists bilaterally between the United States and a number of countries. These instruments should prove to be effective tools to assist

in the prosecution of a wide variety of modern criminals, including

members of drug cartels, ‘‘white-collar’’ criminals, and terrorists.

The Convention and Protocol are self-executing, and will not require implementing legislation.

The Convention provides for a broad range of cooperation in

criminal matters. Mutual assistance available under the Convention 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 State.

The Protocol was negotiated and adopted at the insistence of the

United States Government, and will permit a greater measure of

cooperation in connection with tax offenses. I believe that the Convention should not be ratified by the United States without the
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Protocol. If the Convention and Protocol are ratified, the instruments of ratification would be deposited simultaneously.

One significant advantage of this Convention and Protocol is that

they provide uniform procedures and rules for cooperation in criminal matters by all the states that become Party. In addition, the

Convention and Protocol would obviate the expenditure of resources that would be required for the United States to negotiate

and bring into force bilateral mutual assistance treaties with certain OAS member states.

I recommend that the Senate give early and favorable consideration to the Convention and the Protocol, and that it give its advice

and consent to ratification, subject to the understandings described

in the accompanying report of the Department of State.

WILLIAM J. CLINTON.
(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, June 18, 1997.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you, with a view

to transmittal to the Senate for its advice and consent to ratification, the Inter-American Convention on Mutual Assistance in

Criminal Matters (‘‘the Convention’’), and the Optional Protocol Related to the Inter-American Convention on Mutual Assistance in

Criminal Matters (‘‘the Protocol’’). The Convention was adopted and

opened for signature at the twenty-second regular session of the

General Assembly meeting of the Organization of American States

(OAS) in Nassau, The Bahamas in May 1992. The Protocol was

adopted and opened for signature at the twenty-third regular session of the OAS General Assembly meeting in Managua, Nicaragua

in June 1993. Both the Convention and the Protocol were signed

by the United States on January 10, 1995 at the OAS headquarters

in Washington. I recommend that both the Convention and Protocol

be transmitted to the Senate for its advice and consent to ratification.

To date, ten states have signed the Convention (Brazil, Canada,

Ecuador, Grenada, Nicaragua, Peru, Suriname, the United States,

Uruguay and Venezuela). Three states (Venezuela, Peru, and Canada) have ratified, and the Convention entered into force on April

14, 1996. However, only three states (the United States, Brazil,

and Ecuador) have signed the protocol, and none has ratified it.

Thus, the Protocol is not yet in force.

The Convention and Protocol establish a treaty-based system of

mutual assistance among the OAS member states in criminal matters, analogous to that which exists pursuant to bilateral mutual

legal assistance treaties between the United States and a number

of countries. This Convention contains many provisions similar to

those in our bilateral treaties. It will enhance our ability to investigate and prosecute a variety of offenses, including violent crimes,

drug trafficking, fraud and while-collar crimes. The Convention is

designed to be self-executing and will not require implementing

legislation.

The United States declined initially to sign the Convention because, among other reasons, it limited assistance in cases involving

tax offenses. The United States therefore proposed the draft of the

Protocol to the Convention for consideration at the twenty-third

regular session of the OAS General Assembly, which met in Managua, Nicaragua in 1993. The text of the Protocol that was adopted
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during that session is generally based on the draft that was proposed by the United States. The relevant U.S. Government agencies believe the Convention should not be ratified by the United

States without the Protocol. If both are ratified, the instruments of

ratification would be submitted simultaneously.

The Convention consists of forty articles. Chapter I (Articles 1–

9) contains the Convention’s general provisions. Article 1 states the

purpose of the Convention, which is for the Parties to render to one

another mutual assistance in criminal matters, in accordance with

the provisions of the Convention.

Article 2 defines the scope and application of the Convention.

Specifically, the Parties are obligated to render to one another mutual assistance in investigations, prosecutions, and proceedings

that pertain to crimes over which the Requesting State has jurisdiction at the time the assistance is requested. In addition, this Article expressly states that the Convention does not authorize any

Party to undertake, in the territory of another Party, the exercise

of jurisdiction or the performance of functions that are placed within the exclusive purview of the authorities of that other Party by

its domestic law. Finally, Article 2 stipulates that the Convention’s

provisions do not create any right on the part of any private person

to obtain or exclude any evidence or to impede execution of any request for assistance.

Article 3 provides that each state will designate a central authority that shall be responsible for issuing and receiving requests for

assistance. For the United States, the central authority would be

the Attorney General, or such person or persons as the Attorney

General may designate. The central authorities shall communicate

directly with one another for purposes of implementation of the

Convention.

Article 4 specifies that, in light of the diversity of legal systems

of the Parties, assistance under the Convention shall be based on

requests for cooperation that emanate from those authorities in the

Requesting State that are responsible for criminal investigation or

prosecution.

Article 5 states that assistance under the Convention shall generally not be subject to a ‘‘dual criminality’’ requirement; that is,

assistance shall be rendered even if the act that gives rise to it is

not punishable under the legislation of the Requested State. However, the Article authorizes the Requested State to refuse assistance on grounds of lack of dual criminality when the request pertains to either of two measures: (a) immobilization and sequestration of property; and (b) searches and seizures (including house

searches). Although the United States generally prefers to avoid

the inclusion of dual criminality requirements in its mutual legal

assistance treaties, the above-cited exceptions in Article 5 will confer on the United States the discretion to decline to provide assistance in connection with certain measures that under U.S. law are

subject to constitutional limitations, in cases where the criminal

laws of the Requesting State proscribe conduct that is not punishable under United States law.

Article 6 provides that the act that gives rise to the request must

be punishable by one year or more of imprisonment in the Requesting State.
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Article 7 contains a non-exhaustive list of the major types of assistance to be provided under the Convention, including notification

of rulings and judgments; taking of testimony or statements from

persons; summoning of witnesses and expert witnesses to provide

testimony; immobilization and sequestration of property, freezing of

assets, and assistance in procedures related to seizures; searches or

seizures; examinations of objects and places; service of judicial documents; transmittal of documents, reports, information, and evidence; and transfer of detained persons for the purposes of the

Convention. The Article provides that any other procedure may

also be covered by the Convention upon agreement between the Requesting State and the Requested State.

Article 8 states that the Convention shall not apply to crimes

that are subject exclusively to military legislation.

Article 9 sets forth the grounds upon which the Requested State

may refuse assistance. Specifically, the Requested State may decline assistance if it determines that the request is being used to

prosecute a person on a charge with respect to which the person

has already been sentenced or acquitted in a trail in the Requesting or Requested State. Assistance may also be refused if the investigation has been initiated for the purpose of prosecuting, punishing, or discriminating in any way against an individual or group

of persons for reason of sex, race, social status, nationality, religion,

or ideology. In addition, a request may be denied if it refers to a

crime that is political or related to a political crime, or to a common crime prosecuted for political reasons. Article 9 also gives the

Requested State the discretion to deny assistance if the request has

been issued at the request of a special or ad hoc tribunal; or if public policy (order public), sovereignty, security or basic public interests would be prejudiced.

Article 9 provides, finally, that a request may be denied if it pertains to a tax crime. However, Article 9 stipulates that assistance

in connection with tax crimes shall be granted if the offense is committed by way of an intentionally incorrect statement, whether oral

or written, or by way of an intentional failure to declare income derived from any other offense covered by the Convention for the purpose of concealing such income. In addition, cooperation with respect to tax offenses is subject to the terms of the Protocol for those

states that are Parties to that instrument.

Chapter II (Articles 10–16) describes procedures for the filing,

processing and execution of requests for assistance. Article 10 provides that requests shall be made in writing and executed in accordance with the domestic law of the Requested State.

Article 11 permits the Requested State to postpone execution of

any request if doing so is necessary to continue an investigation or

proceeding in progress in the Requested State. In such cases, the

Requested State must provide an explanation of its grounds for

postponing execution of the request.

Article 12 stipulates that documents and objects delivered in

compliance with a request for assistance shall be returned to the

Requested State as soon as possible, unless the latter decides otherwise.

Article 13 provides that the Requested State shall execute requests for search, seizure, attachment, and surrender of any items,
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documents, records, or effects, if the competent authority determines that the request contains information that justifies the proposed action. Such action is subject to the procedural and substantive law of the Requested State. Furthermore, the Article provides that the Requested State shall determine, according to its

law, what requirements must be met to protect the interests held

by third parties in the items that are to be transferred.

Article 14 authorizes the central authority of any Party to convey

to its counterparts in other Parties information it has on the existence of proceeds, fruits, or instrumentalities of a crime in the territory of those Parties.

Article 15 requires the Parties to assist each other, to the extent

permitted by their respective laws, in precautionary measures and

measures for securing the proceeds, fruits, and instrumentalities of

the crime.

Article 16 provides that the Requested State shall set the date

and place for execution of the request for assistance and may so inform the Requesting State. The Article also authorizes officials and

interested parties of the Requesting State or their representatives,

after informing the central authority of the Requested State, to be

present at and participate in the execution of the request for assistance, to the extent permissible under the law of the Requested

State’s authorities.

Chapter III (Articles 17–23) addresses the subjects of service of

judicial decisions, judgments and verdicts, and the appearance of

witnesses and expert witnesses. Article 17 provides that, at the request of the Requesting State, the Requested State shall serve notice of decisions, judgments, or other documents issued by the competent authorities of the Requesting State.

Article 18 directs that, at the request of the Requesting State,

any person present in the Requested State may be summoned to

appear before a competent authority, in accordance with the law of

the Requested State, to give testimony or to provide documents,

records, or evidence.

Article 19 states that, when the Requesting State requests that

a person appear in its territory to give testimony or a report, the

Requested State shall invite the witness or expert witness to appear voluntarily, without the use of threats or coercive measures,

before the appropriate authority in the Requesting State.

Article 20 addresses the subject of transfers of persons subject to

criminal proceedings. The Article authorizes temporary transfers to

the Requesting State, for the purpose of assistance under the Convention, of persons subject to criminal proceedings in the Requested State, but only if the person and the Requested State consent. The article also authorizes transfers to the Requested State

of persons subject to criminal proceedings in the Requesting State,

but only if the person and both states consent.

The Article enunciates grounds for denial of a request for transfer, including instances in which the individual in custody refuses

to consent to the transfer; when the person’s presence is necessary

in an investigation or criminal proceeding that is under way in the

jurisdiction to which he is subject at the time; and when there are

other considerations, whether legal or of another nature, as deter-
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mined by the competent authority of the Requested or Requesting

State.

Article 20 also stipulates that the receiving state shall have the

obligation to keep the transferred person in physical custody; that

it shall return the transferred person to the sending state as soon

as possible or as agreed by the central authorities of the two states;

and that the sending state shall not be required to initiate extradition proceedings for the return of the transferred person. In addition, the transferred person shall receive credit toward service of

the sentence imposed in the sending state for time served in the

receiving state; and the length of time spent by the person in the

receiving state shall not exceed the period remaining for service of

the sentence or 60 days, whichever is less, unless the person and

both states agree to an extension of time.

Article 21 obligates the Parties to render cooperation, to the extent possible, for travel through their territory of the persons mentioned in Article 20, provided that the central authorities of the

transit state are given due advance notice and that such persons

travel in the custody of agents of the Requesting State (except

where air transportation is used and no landing is scheduled in the

territory of the Party to be overflown).

Article 22 requires, upon request of the person being transferred

from the sending state, that the receiving state grant safe-conduct

to the person. This means that the person shall not be detained or

prosecuted for offenses committed prior to the transfer; be required

to make a statement or give testimony in proceedings not specified

in the request; or be detained or prosecuted on the basis of any

statement he makes, except in case of contempt of court or perjury.

Article 23 provides that, in connection with witnesses or expert

witnesses, documents containing the relevant questions, interrogatories, or questionnaires shall be forwarded to the extent possible

or necessary.

Chapter IV (Articles 24–25) addresses the issue of transmittal of

information and records. Article 24 provides that, upon request, the

Requested State shall make available to the Requesting State a

copy of the public documents, records, or information held by the

government agencies or departments of the Requested State. In addition, the Requested State may make available such government

information and records that are not public, but only to the same

extent as it would make such available to its own judicial authorities or to others responsible for application of the law.

Article 25 prohibits the Requesting State from disclosing or using

any information or evidence obtained in the course of application

of the Convention for purposes other than those specified in the request for assistance, unless consent is obtained from the central

authority of the Requested State. To ensure that the Convention is

implemented consistent with existing U.S. legislation, I recommend

that the following understanding to Article 25 be included in the

United States instrument of ratification:

The United States understands that Article 25 of the

Convention, which limits disclosure or use of information

or evidence obtained under the Convention, shall no longer

apply if such information or evidence is made public, in a
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manner consistent with Article 25, in the course of proceedings in the Requesting State.

Article 25 further provides that, when necessary, the Requested

State may ask that the information or evidence provided remain

confidential according to conditions specified by the central authority.

Chapter V (Articles 26–31) sets forth the procedures that govern

the presentation and processing of requests. Article 26 specifies the

information that requests for assistance must contain, including a

statement of the crime to which the procedure refers; a summary

of the relevant facts; the nature of the proceeding giving rise to the

request for assistance; a precise description of the assistance requested and any information necessary for the fulfillment of such

request; and, where pertinent, a description of any proceeding or

other special requirement of the Requesting State.

Article 26 also provides that when the Requested State is unable

to comply with a request, it must return the request to the Requesting State with an explanation of the reasons therefor. The Requested State may request additional information when necessary

for fulfillment of the request under its domestic law or to facilitate

such fulfillment.

Article 27 eliminates any requirement for certification or authentication of documents, so long as the documents are processed

through the central authorities in accordance with the Convention.

Article 28 requires that requests for assistance and their accompanying documentation be translated into an official language of

the Requested State.

Article 29 renders the Requested State responsible for all regular

costs of executing a request in its territory, except for fees for expert witnesses, travel costs, and other expenses related to the

transportation of persons from the territory of the state to that of

the other, which shall be borne by the Requesting State.

Article 30 permits the Parties to exchange information on matters related to the application of the Convention, for the purpose

of furthering the treaty’s implementation.

Article 31 directs that the domestic law of each Party shall govern liability for damages arising from the acts of its authorities in

the execution of the Convention. The Article also exempts the Parties from liability for damages that may arise from the acts committed by the authorities of another Party in the formulation or

execution of a request under the Convention.

Chapter VI (Articles 32–40) sets forth the final clauses. Article

32 provides that the Convention shall be open for signature by the

member states of the Organization of American States.

Article 33 renders the Convention subject to ratification, and requires that instruments of ratification be deposited with the General Secretariat of the Organization of American States.

Article 34 opens the Convention to accession by any other state,

and requires that instruments of accession be deposited with the

OAS General Secretariat.

Article 35 permits each state to make reservations to the Convention at the time of signature, approval, ratification, or accession,

provided that each reservation concerns at least one specific provi-
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sion and is not incompatible with the object and purpose of the

Convention.

Article 36 provides that the Convention shall not be interpreted

as affecting or restricting obligations in effect under any other bilateral or multilateral convention, or provisions therein, relating to

international criminal judicial assistance, or more favorable practices that those states may observe in the matter. The United

States wishes to ensure that more favorable provisions in bilateral

treaties not be prejudiced by the OAS MLAT, and that accession

to this Convention not be interpreted as indicative of the United

States Government’s willingness to include identical provisions in

future bilateral treaties. For these reasons, the United States made

a statement at the OAS General Assembly in Nassau, The Bahamas, in 1992, emphasizing the provisions of this Article. In order

to stress this point formally, I recommend that the following understanding be included in the United States instrument of ratification of both the Convention and the Protocol:

The United States understands that the Convention and

Optional Protocol are not intended to replace, supersede,

obviate or otherwise interfere with any other bilateral or

multilateral treaties or conventions, including those that

relate to mutual assistance in criminal matters.

Article 37 states that the Convention shall enter into force on the

thirtieth day following the date of deposit of the second instrument

of ratification. For each state that ratifies or accedes to the Convention after the deposit of the second instrument of ratification,

the Convention shall enter into force on the thirtieth day after deposit by such state of its instrument of ratification or accession.

Article 38 provides that if a Party has two or more territorial

units in which different systems of law govern matters addressed

in the Convention, it shall state at the time of signature, ratification, or accession whether the Convention shall apply to all of its

territorial units or only to one or more of them.

Article 39 sets forth the termination clause of the Convention. It

states that the Convention shall remain in force indefinitely, but

that any Party may denounce or terminate it. The instrument of

denunciation must be deposited with the OAS General Secretariat.

The Convention shall cease to be in force for the denouncing state

one year from the date of deposit of the instrument of denunciation.

Article 40 provides that the English, French, Spanish and Portuguese texts of the Convention are equally authentic, and that the

original instruments in each of those languages shall be deposited

with the OAS General Secretariat, which shall forward authenticated copies of the text of the United Nations General Secretariat

for registration and publication. Finally, this Article indicates that

the OAS General Secretariat shall notify the OAS member states,

as well as those states that have acceded to the Convention, of the

signatures and deposits of instruments of ratification, accession,

and denunciation, and of reservations, if any, as well as the statements specified in Article 38 of the Convention.

The Protocol consists of five Articles. The first Article provides

that Parties to the Protocol shall not exercise the right con-
XII

templated in Article 9.f of the Convention to refuse a request for

assistance from another Party to the Protocol solely on the ground

that the request concerns a tax crime.

Article 2 provides that, when acting as a Requested State under

the Convention, Parties to the Protocol shall not decline assistance

that requires the measures referred to in Article 5 of the Convention, if the act specified in the request corresponds to a tax crime

of the same nature under the laws of the Requested State.

Articles 3, 4, and 5 contain the final clauses. Article 3 articulates

which states can become Parties or accede to the Convention, and

imposes requirements regarding the deposit of instruments of ratification or accession. This Article also specifies conditions for the

filing of reservations, and includes a paragraph stating that the

Protocol shall not be interpreted as affecting or restricting obligations under other treaties or practices with respect to international

criminal assistance. As mentioned above in connection with Article

36 of the Convention, I recommend that the following understanding be included in the United States instrument of ratification of

both the Convention and the Protocol:

The United States understands that the Convention and

Optional Protocol are not intended to replace, supersede,

obviate or otherwise interfere with any other bilateral or

multilateral treaties or conventions, including those that

relate to mutual assistance in criminal matters.

Finally, Article 3 sets forth provisions regarding entry into force of

the Protocol, and requiring statements by countries with two or

more territorial units on the application of the Protocol to such

units.

Article 4 provides that the Protocol shall remain in force as long

as the Convention does, but that any of the Parties may denounce

it. The instrument of denunciation must be deposited with the OAS

General Secretariat, and the Protocol would cease to be in effect for

the denouncing state one year from the date of such deposit.

Article 5 requires that the original text of the Protocol in the four

OAS languages be deposited with the OAS General Secretariat,

and that the latter forward authenticated copies of the text to the

United Nations Secretariat for registration. Finally, Article 5 directs the OAS General Secretariat to notify the OAS member states

and acceding states of the signatures and deposits of instruments

of ratification, accession, and denunciation, as well as reservations,

if any, and the statements specified in Article 3.

It is my belief that this Convention and the Protocol would afford

substantial benefits to the United States, and would be fully consistent with existing United States legislation.

A Technical Analysis explaining in detail the provisions of the

Convention and the Protocol was prepared by the United States negotiating delegation and will be transmitted separately to the Senate Committee on Foreign Relations.
XIII

The Departments of Justice and Treasury join the Department of

State in recommending that the Convention and the Protocol be

transmitted to the Senate at an early date for its advice and consent to ratification, subject to the understandings described above.

Respectfully submitted,

MADELEINE ALBRIGHT.
(1)
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