59–115 

114TH CONGRESS EXEC. REPT. " ! SENATE 2nd Session 114–13 

MUTUAL LEGAL ASSISTANCE TREATY WITH THE 

REPUBLIC OF KAZAKHSTAN 

SEPTEMBER 13, 2016.—Ordered to be printed 

Mr. CORKER, from the Committee on Foreign Relations, 

submitted the following 

R E P O R T 

[To accompany Treaty Doc. 114–11] 

The Committee on Foreign Relations, to which was referred the 

Treaty between the United States of America and the Republic of 

Kazakhstan on Mutual Legal Assistance in Criminal Matters, 

signed at Washington on February 20, 2015 (Treaty Doc. 114–11), 

having considered the same, reports favorably thereon with one 

declaration, as indicated in the resolution of advice and consent, 

and recommends that the Senate give its advice and consent to 

ratification thereof, as set forth in this report and the accompanying resolution of advice and consent. 

CONTENTS 

Page 

I. Purpose ........................................................................................................... 1 

II. Background .................................................................................................... 2 

III. Major Provisions ............................................................................................ 3 

IV. Entry Into Force ............................................................................................ 4 

V. Implementing Legislation ............................................................................. 4 

VI. Committee Action .......................................................................................... 5 

VII. Committee Recommendation and Comments .............................................. 5 

VIII. Text of Resolution of Advice and Consent to Ratification .......................... 5 

I. PURPOSE

The Treaty between the United States of America and the Republic of Kazakhstan on Mutual Legal Assistance in Criminal Matters (the ‘‘MLAT with Kazakhstan’’ or ‘‘Treaty’’) is one of a series 

of modern mutual legal assistance treaties that have been negotiated by the United States and is designed to provide a formal 

basis for mutual cooperation between the United States and the 

Republic of Kazakhstan on law enforcement matters so as to enhance the ability of the United States to investigate and prosecute 

crimes. 

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1 A subpoena duces tecum is a specific form of subpoena, also called a ‘‘subpoena for the production of evidence.’’ It is a subpoena issued by a court ordering the parties named to appear 

and to produce tangible evidence for use at a hearing or trial. 

II. BACKGROUND

In order for the United States to successfully prosecute criminal 

activity that is transnational in scope, it is often necessary to obtain evidence or testimony from a witness in another country. 

While U.S. federal courts may issue subpoenas to U.S. nationals 

overseas, they lack the authority to subpoena foreign nationals 

found in other countries or the authority to subpoena evidence in 

a foreign country. In addition, effectuating service of a subpoena to 

U.S. persons abroad may prove difficult. 

In the absence of an applicable international agreement, the customary method for obtaining evidence or testimony in another 

country is via a ‘‘letter rogatory,’’ which tends to be an unreliable 

and time-consuming process. The term ‘‘letter rogatory’’ is generally used to refer to a formal communication in writing that is 

sent by a court in which an action is pending to a court in a foreign 

country, requesting that certain evidence or the testimony of a person within the latter’s jurisdiction be formally obtained for use in 

the requesting court’s pending action. The State Department advises that the letter-rogatory process can often take a year or more 

and, unless undertaken pursuant to an international agreement, 

compliance is a matter of judicial discretion. Furthermore, the 

scope of foreign judicial assistance might also be limited by domestic information-sharing laws, such as bank and business secrecy 

laws, or be confined to evidence relating to pending cases rather 

than preliminary, administrative, or grand jury investigations conducted prior to the filing of formal charges. Execution of letters rogatory is usually carried out under the judicial norms of the responding country. However, responding country norms may be insufficiently compatible with U.S. law such that the resulting evidence is rendered inadmissible in a U.S. court. Mutual Legal Assistance Treaties (‘‘MLATs’’) are designed to overcome these and 

similar problems. 

MLATs are international agreements that establish a formal, 

streamlined process by which governments may gather information 

and evidence in other countries for use in criminal investigations 

and prosecutions. The U.S. is currently a party to several dozen 

MLATs. While the specific provisions of MLATs vary, they generally obligate treaty partners to take steps on behalf of a requesting treaty partner when certain conditions are met. MLATs typically contain provisions concerning the sharing of collected information between parties, the location and identification of persons and 

potential witnesses within the parties’ territories, the taking of 

depositions and witness testimony, and the serving of subpoenas 

duces tecum on behalf of a requesting treaty party.1 Such provisions provide for the easier acquisition of evidence and testimony 

than via letters rogatory and do so in a manner designed to be 

compatible with the admissibility requirements of the requesting 

State’s courts. MLATs also typically contain provisions concerning 

the allocation of costs between parties, the form and content of requests for legal assistance, the designation of national law enforcement agencies or officials responsible for treaty administration, and 

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the grounds for which a treaty party may refuse to provide legal 

assistance. Increasingly, MLATs have been used as a tool to combat terrorism. 

The Kazakhstan MLAT is the first such treaty between the 

United States and the Republic of Kazakhstan. In the absence of 

this Treaty, there is no obligation to provide assistance to the 

United States and thus this Treaty would substantially enhance 

the ability of the United States to investigate and prosecute crimes 

for which such assistance is necessary. A detailed paragraph-byparagraph analysis of this treaty may be found in the Letter of 

Submittal from the Secretary of State to the President on this instrument, which is reprinted in full in Treaty Document 114-11. 

What follows is a brief summary of some key provisions. 

III. MAJOR PROVISIONS

As with most MLATs, the MLAT with the Republic of 

Kazakhstan generally obligates the parties to assist each other in 

criminal investigations, prosecutions, and related law enforcement 

proceedings, as well as civil or administrative proceedings such as 

forfeiture proceedings that may be related to criminal matters. Article 1(3) provides a non-exhaustive list of assistance to be rendered 

by each Party, which includes the taking of evidence, such as testimony, documents, records and items or things, on a requesting party’s behalf by way of judicial process; conducting searches and seizures; effecting service of judicial documents; sharing certain obtained information or evidence with a requesting State; freezing 

and forfeiting assets or property; permitting the transfer of persons 

in custody to the requesting party for testimony or other assistance; and other agreed-upon forms of assistance not prohibited by 

the laws of the Requested State. 

Article 1(4) provides that, with the exception of where it is specifically required by the laws of the Requested State, ‘‘dual criminality’’ is not a prerequisite for assistance under the Treaty. 

Article 3 sets forth a list of circumstances under which a requested State may deny legal assistance to the requesting State. 

Some of the grounds listed are commonly found in MLATs to which 

the United States is a party, such as the ground in Article 3(1)(b) 

permitting the denial of a request when it would prejudice the requested State’s sovereignty, security, public order, or other essential interest. In accordance with Article 3(3), a request for assistance under the MLAT with the Republic of Kazakhstan may be refused when it relates to an offense punishable by a deprivation of 

liberty for less than one year or does not give rise to a significant 

material loss compared to the resources deemed required to provide 

the assistance. Before denying assistance under the provisions of 

Article 3, the Requested Party is obligated to consult with the Requesting Party to consider whether assistance can be given subject 

to such conditions as the Requested Party may deem necessary. 

Article 4 prescribes the form and contents of requests under the 

Treaty. Article 5 generally obligates both Parties’ competent authorities to promptly execute requests; and to promptly inform the 

competent authority of the requesting state of the outcome of the 

execution of a request. The requested State is under no obligation 

to provide translations of responsive materials, however. Article 6, 

which addresses the allocation of costs associated with providing 

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assistance, provides that the requested State must pay all costs relating to the execution of a request, unless it is a case where extraordinary expenses arise. This allocation of costs is common in 

MLATs to which the United States is a party. 

Article 7 sets forth limitations on the usage or disclosure of information acquired pursuant to MLAT requests. The Central Authority of the requested State may ask that the requesting party refrain from using or disclosing information or evidence acquired 

under the MLAT for purposes other than the proceedings stated in 

the request; if such a request is made, compliance with the request 

is mandatory. However, nothing in Article 7 precludes, to the extent required under the constitution of the requesting party, the 

disclosure or use of information or evidence in a criminal proceeding. 

Articles 8–16 set forth in detail the procedures to be employed 

in the case of specific types of requests for legal assistance. In Article 10, a person appearing in the requesting State shall not be subject to service of process or detention or any other form of deprivation of liberty for conduct that preceded entry into the territory. 

Such a person may not be obliged to provide assistance on any unrelated matter. Unless the Central Authority chooses to extend it, 

this guarantee of safe conduct only lasts seven days after the person is informed his presence is no longer required and he has not 

departed the territory despite his physical ability to do so, or if he 

departs the territory and later voluntarily returns. 

Article 11 provides that, in the case of a transfer of someone in 

custody, the receiving party has the authority and obligation to 

keep the transferred person in custody, unless permitted by the 

sending party to do otherwise. Further, it must return the person 

back to the custody of the sending party as soon as circumstances 

permit, unless otherwise agreed between the parties. Article 14 

makes provision for maintaining a chain of custody for seized evidence, certification of relevant officials obviating the need for further authentication to provide for admissibility in evidence in the 

courts of the requesting party. 

Article 16 requires the requested State to assist the requesting 

State with measures to freeze or cause the forfeiture of assets that 

constitute or are derived from proceeds of a crime, whether directly 

or indirectly; are instrumentalities or intended to be used in the 

commission of a crime; or is equivalent in value to such property. 

The requirement to provide assistance arises with respect to both 

criminal conviction-based forfeitures and non-criminal forfeitures 

and other restraints of assets premised on underlying criminal conduct. 

IV. ENTRY INTO FORCE

In accordance with Article 20, this Treaty shall enter into force 

upon the exchange of instruments of ratification between the 

United States and the Republic of Kazakhstan. 

V. IMPLEMENTING LEGISLATION

This treaty, which is self-executing, will be implemented by the 

United States in conjunction with applicable federal statutes, inFOREI-42327 with DISTILLER

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2Treaty Doc. 114–11 at p. V (stating that ‘‘The [MLAT with Kazakhstan] is self-executing and 

will not require further implementing legislation.’’). 3The committee has consistently expressed the view that mutual legal assistance treaties are 

self-executing. See, e.g., Exec. Rept. 107–15 at p. 6 (stating that ‘‘[i]it is anticipated that, for 

the United States, the [Mutual Legal Assistance Treaty with Belize] will be ‘‘self-executing.’’); 

and Exec. Rept. 109–14 at p. 6 (stating that ‘‘[t]he committee notes that the provisions of the 

[Mutual Legal Assistance Treaties with Germany and Japan] are self-executing.’’). 

cluding 18 U.S.C. Sec. 1782. No additional legislation is needed for 

the United States to fulfill its obligations under this Treaty. 

VI. COMMITTEE ACTION

The committee reviewed the Treaty at a briefing on May 23, 

2016, at which representatives of the Departments of State and 

Justice were present. On June 23, 2016, the committee considered 

this treaty and ordered it favorably reported by voice vote, with a 

quorum present and without objection. 

VII. COMMITTEE RECOMMENDATION AND COMMENTS

The Committee on Foreign Relations believes that the MLAT 

with the Republic of Kazakhstan, which would enhance law enforcement cooperation between the United States and Kazakhstan, 

would further U.S. efforts in fighting terrorism and transnational 

crime. Accordingly, the committee urges the Senate to act promptly 

to give advice and consent to ratification of this Treaty, as set forth 

in this report and the accompanying resolution of advice and consent. 

The committee has included in its resolution of advice and consent one declaration, which is discussed below. 

Declaration 

The committee has included a proposed declaration in the resolution of advice and consent, which states that the MLAT with the 

Republic of Kazakhstan is self-executing. This declaration is consistent with statements made in the Letter of Submittal from the 

Secretary of State to the President on this instrument 2 and with 

the historical practice of the committee in approving mutual legal 

assistance treaties.3 The Senate has rarely included statements regarding the self-executing nature of treaties in resolutions of advice 

and consent, but in light of the recent Supreme Court decision, 

Medellin v. Texas, 128 S.Ct. 1346 (2008), the committee has determined that a clear statement in the resolution is warranted. A further discussion of the committee’s views on this matter can be 

found in Section VIII of Executive Report 110–12. 

VIII. RESOLUTION OF ADVICE AND CONSENT TO RATIFICATION

Resolved (two-thirds of the Senators present concurring therein), 

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION 

The Senate advises and consents to the ratification of the Treaty 

between the United States of America and the Republic of 

Kazakhstan on Mutual Legal Assistance in Criminal Matters, 

signed at Washington on February 20, 2015 (Treaty Doc. 114–11), 

subject to the declaration of section 2. 

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SECTION 2. DECLARATION 

The advice and consent of the Senate under section 1 is subject 

to the following declaration: 

The Treaty is self-executing. 

Æ 

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