U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

29–118

" SENATE ! 108TH CONGRESS

1st Session 

TREATY DOC. 

2003

108–12

MUTUAL LEGAL ASSISTANCE TREATY WITH JAPAN

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

TREATY BETWEEN THE UNITED STATES OF AMERICA AND JAPAN 

ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, 

SIGNED AT WASHINGTON ON AUGUST 5, 2003; INCLUDING A RELATED EXCHANGE OF NOTES

NOVEMBER 24, 2003.—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


E:\Seals\Congress.#13
(III)

LETTER OF TRANSMITTAL 

THE WHITE HOUSE, November 24, 2003.

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 United 

States of America and Japan on Mutual Legal Assistance in Criminal Matters, signed at Washington on August 5, 2003. I transmit 

also, for the information of the Senate, a related exchange of notes 

and 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 negotiated by the United States in order to counter criminal activities more effectively. The Treaty should be an effective 

tool to assist in the investigation and prosecution of a wide variety 

of crimes. 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 testimony, statements, or items; examining persons, items, 

or places; locating or identifying persons, items, or places; providing items from governmental departments or agencies; inviting 

persons to testify in the requesting Party; transferring persons in 

custody for testimony or other purposes; assisting in proceedings 

related to forfeiture and immobilization of assets; and any other 

form of assistance permitted under the laws of the requested Party 

and agreed upon by the Central Authorities of the two Contracting 

Parties. 

I recommend that the Senate give early and favorable consideration to the Treaty, and give its advice and consent to ratification.

GEORGE W. BUSH.

(V)

LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, Washington, October 27, 2003. 

The PRESIDENT, The White House. 

THE PRESIDENT: I have the honor to submit to you the Treaty Between the United States of America and Japan on Mutual Legal 

Assistance in Criminal Matters (‘‘the Treaty’’), and a related exchange of notes, both signed at Washington on August 5, 2003. I 

recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification, and the exchange of notes be submitted for the information of the Senate. 

The Treaty covers mutual legal assistance in criminal matters. 

In recent years, similar bilateral treaties have entered into force 

between the United States and a number of other countries. This 

Treaty contains many provisions similar to those in other treaties 

and includes the essential provisions sought by the United States. 

It is accompanied by an exchange of notes (described below), which 

relates to Article 2 of the Treaty. The Treaty will enhance our ability to investigate and prosecute a variety of offenses. The Treaty 

is designed to be self-executing and will not require implementing 

legislation. 

Article 1 sets out the scope of assistance available under the 

Treaty. Article 1(2) contains a non-exhaustive list of the major 

types of assistance to be provided under the Treaty, including taking testimony, statements or items; examining persons, items or 

places; locating or identifying persons, items or places; providing 

items in the possession of governmental departments or agencies; 

presenting an invitation to a person whose appearance in the requesting Party is sought; transfer of a person in custody for testimony or other purposes; assisting in proceedings related to forfeiture and immobilization of proceeds or instrumentalities of 

criminal offenses; and any other assistance permitted under the 

laws of the requested Party and agreed upon between the Central 

Authorities of the Contracting Parties. 

The scope of the Treaty includes not only assistance provided in 

connection with the investigation, prosecution, and prevention of 

criminal offenses, but also in certain related proceedings. Significantly, Article 1(3) permits assistance in connection with an administrative investigation of suspected criminal conduct (e.g., an investigation by the Securities and Exchange Commission of suspected 

securities fraud), in such cases and upon such conditions as the requested Party deems appropriate. The Central Authority of the requesting Party would be required to certify that the authority conducting the investigation has statutory or regulatory authority to 

VI

conduct the investigation of facts that could constitute criminal offenses, and that the testimony, statements or items to be obtained 

will be used in the requesting Party in an investigation, prosecution or other proceeding in criminal matters, including a decision 

whether to prosecute. 

Article 1(4) states that assistance is to be provided without regard to whether the conduct involved would constitute an offense 

under the laws of the requested Party, except as otherwise provided in the Treaty (see Article 3 below). 

Article 1(5) states explicitly that the Treaty does not create a 

new right or affect a pre-existing right on the part of any private 

person to impede the execution of a request or exclude any evidence. 

Article 2 provides for the designation of Central Authorities and 

defines 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 Japan, the Central 

Authority is the minister of Justice or the National Public Safety 

Commission or their designees. The authorization for Japan to designate two agencies is necessary because of the respective jurisdictions of the two agencies concerned. The article provides that the 

Central Authorities are to communicate directly with one another 

for the purposes of the Treaty.

This Treaty is accompanied by an exchange of diplomatic notes 

that further sets forth the specific kinds of requests that will be 

handled by each agency on the Japanese side. The notes also provide for consultations between the United States and Japan before 

the implementation of any changes in such designations. 

In the exchange of notes Japan has designated the Minister of 

Justice as the Central Authority with respect to requests made by 

the United States. With respect to requests made by Japan, the 

Minister of Justice will also serve as the Central Authority for requests submitted by public prosecutors or judicial police officials, or 

if a request requires examination of a witness in a U.S. court. The 

Central Authority in connection with requests made by police officials or imperial guard officers will be the National Public Safety 

Commission or its designee. The Minister of Justice and the National Public Safety Commission will establish a mechanism to 

avoid unnecessary duplication of requests and to facilitate efficient 

and speedy provision of assistance. 

Article 3 sets forth the 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, if the execution of a request would impair security or other essential interests, if a request does not conform to the requirements of this Treaty, or if the conduct would not constitute a criminal offense under 

the laws of the requested Party and execution of the request requires a court warrant or other compulsory measures under the 

laws of the requested Party. 

Before denying assistance under Article 3(1), the Central Authority of the requested Party is required to consult with its counterpart in the requesting Party to consider whether assistance can be 

given subject to such conditions as the Central Authority of the requested Party deems necessary. If the requesting Party accepts asVerDate jul 14 2003 19:47 Nov 26, 2003 Jkt 029118 PO 00000 Frm 00006 Fmt 7633 Sfmt 6602 E:\HR\OC\TD012.XXX TD012
VII

sistance subject to these conditions, it is required to comply with 

them. If the Central Authority of the requested Party denies assistance, it is required under Article 3(3) to inform the Central Authority of the requesting Party 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. A request for assistance must be in writing, except 

that a request may be accepted in another form if the Central Authority of the requested Party considers it appropriate to receive a 

request by other reliable means. In such cases, a supplementary 

confirmation of the request may be required in writing. 

Article 5 concerns execution of requests. Article 5(1) requires the 

Central Authority of the requested Party to execute the request 

promptly or, where appropriate, to transmit it to the authority having jurisdiction to do so. It provides that the competent authorities 

of the requested Party must do everything in their power to ensure 

the execution of a request. Under Article 5(2), the Central Authority of the requested Party must make all arrangements for execution of a request in the requested Party. 

Article 5(3) provides that requests are to be executed in accordance with the provisions of this Treaty and the laws of the requested Party. The manner or particular procedure described in a 

request referred to in paragraph 3(2) (taking testimony, statements 

or items), 3(6) (examination of persons, items or places) or 3(8) 

(particular procedures) of Article 4 shall be followed to the extent 

it is in accordance with the laws of the requested Party, and where 

it is possible. Article 5(4), provides that courts in the United States 

shall have authority to issue subpoenas, search warrants, or other 

orders necessary to execute the request. In Japan judges will have 

similar authority to issue the necessary warrants or orders. 

Under Article 5(5), if the Central Authority of the requested 

Party determines that execution of a request would interfere with 

an ongoing criminal investigation, prosecution, or proceeding in 

that State, it may postpone execution or make execution subject to 

conditions deemed necessary after consultations with the Central 

Authority of the requesting Party. If the requesting Party accepts 

such conditions, it must comply with them.

Article 5(6) further requires the requested Party, if so requested 

by the Central Authority of the requesting Party, to make its best 

efforts to keep confidential the fact a request has been made, its 

contents, the outcome of executing a request and other relevant information. The Central Authority of the requested Party must inform the requesting Party’s Central Authority if the request cannot 

be executed without disclosure of such information. This provides 

the requesting Party an opportunity to decide whether to pursue 

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

This article also requires the requested Party’s Central Authority 

to respond to reasonable inquiries by the requesting Party’s Central Authority concerning progress toward execution of a particular 

request; to promptly inform the requesting Party’s Central Authority of the outcome of its execution; and, if the request cannot be 

executed in whole or in part, to inform the requesting Party’s Central Authority of the reasons therefor. 

VIII

Article 6 apportions between the two Parties the costs incurred 

in executing a request. It provides that the requested Party must 

pay all costs relating to the execution of a request, except for the 

following items to be paid by the requesting Party: fees of expert 

witnesses; costs of translation, interpretation and transcription; 

and allowances and expenses related to travel of persons pursuant 

to Articles 14 and 15. The article further provides that, in the 

event that a request entails extraordinary expenses, consultation 

between Central Authorities shall occur in order to determine the 

terms and conditions for execution. 

Article 7 requires the requesting Party, if so requested, not to 

use any testimony, statements or items provided under the Treaty 

for any purposes other than those described in the request without 

the prior consent of the requested Party. Further, if the requesting 

Party accepts information or evidence under the Treaty, subject to 

a request by the requested Party’s Central Authority that it be 

kept confidential or be used in accordance with specified terms and 

conditions, the requesting Party must comply with the conditions. 

Nothing in the Article prevents the use or disclosure of testimony, 

statements or items provided under the Treaty to the extent that 

there is an obligation to do so under the Constitution of the requesting Party in a criminal prosecution. The requesting Party is 

obliged to notify the requested Party in advance of any such proposed use or disclosure. Once information is made public in the requesting Party in accordance with either of these provisions, it may 

thereafter be used for any purpose. 

Article 8 provides that items provided under the Treaty be transported and maintained in accordance with the conditions specified 

by the requested Party, including the conditions deemed necessary 

to protect third-party interests. In particular, the requesting Party 

shall not examine an item without the consent of the requested 

Party, if the examination could impair the integrity of the item. 

The article also provides that the requesting Party return items 

provided under the Treaty after such items have been used for the 

purpose described in a request. 

Article 9(1) provides that the requested Party shall take testimony, statements or items and shall employ, if necessary, compulsory measures in order to do so. This is one of the principal forms 

of assistance available under the Treaty. Under Article 9(2), the requested Party is obliged to make its best efforts to make possible 

the presence of such persons as may be specified in a request during the execution of a request, and allow such persons to question 

the witness. In the event that direct questioning is not permitted, 

written questions may be posed to the person from whom testimony, statements or items are sought. Article 9(3) permits a request for the search and seizure of any item for the requesting 

Party, if such compulsory measures are necessary and the request 

includes information justifying the use of those measures under the 

laws of the requested Party. In the event that a person from whom 

testimony, statements or items are sought asserts a claim of immunity, incapacity, or privilege under the laws of the requesting 

Party, Article 9(4) provides that the testimony or evidence is to be 

taken and the claim made known to the Central Authority of the 

requesting Party for resolution by its competent authorities.

IX

Article 10 requires the requested Party to examine persons, 

items or places, and to employ compulsory measures, if necessary, 

in order to do so. The requested Party shall make its best efforts 

to make possible the presence of such persons as may be specified 

in a request. Examinations may include the taking of photographs 

or creation of video records of persons, items or places, and may involve the participation of expert witnesses. 

Article 11 states that the requested Party shall make its best efforts to locate or identify persons, items or places. 

Article 12 requires the requested Party to provide the requesting 

Party with items that are in the possession of governmental departments and agencies in the requested Party and are available 

to the general public. The requested Party may also provide items 

that are in the possession of a governmental department or agency, 

and are not available to the general public, to the same extent and 

under the same conditions as such items would be available to its 

own investigative and prosecuting authorities. 

Article 13 covers the authentication of documents and certification of the chain of custody of items seized during the execution 

of a request. Article 13(1) provides that testimony, statements or 

items provided may be authenticated by the requested Party by use 

of a form in the Attachment to the Treaty. The Attachment (see 

below) is an integral part of the Treaty. Testimony, statements or 

items so authenticated shall be admissible in evidence in proceedings in the requesting Party in accordance with the relevant 

provisions of the Attachment. Article 13(2) provides that the continuity of custody of items seized, the identity of the items and the 

integrity of their condition may be certified by the requested Party 

by use of a form in the Attachment. Such certification shall also 

be admissible in evidence in proceedings in the requesting Party. 

Article 14(1) provides a mechanism for the requesting Party to 

ask for the voluntary appearance in its territory of a person located 

in the requested Party whose appearance is sought before an appropriate authority in the requesting Party. The requesting Party 

must indicate the extent to which the expenses will be paid and the 

Central Authority of the requested Party must promptly inform its 

counterpart in the requesting Party of the person’s response. Article 14(2) states that a person who consents to appear before the appropriate authority in the requesting Party pursuant to this Article 

shall not be subject to detention or any restriction of personal liberty by reason of any conduct or conviction that preceded that person’s departure from the requested Party. Under Article 14(3), any 

safe conduct provided for by this Article ceases seven days after the 

person was notified by the appropriate authority of the requesting 

Party that the person’s presence is no longer required, or if the person has left the requesting Party and voluntarily returns to it, or 

if the person fails to appear before the appropriate authority on the 

scheduled appearance date. The Central Authority of the requesting Party must notify the Central Authority of the requested Party 

when safe conduct under this Article ceases. 

Article 15(1) provides for the temporary transfer of a person in 

the custody of one Contracting Party to the other for testimony or 

other purposes under the Treaty, if the person consents and the 

Central Authorities of both Parties agree, when permitted under 

X

the laws of the requested Party. For example, a witness incarcerated in one country may be transferred to the other country to give 

testimony in the presence of a defendant facing criminal charges in 

that other country. 

Article 15(2) sets forth both the express authority and the obligation of the receiving Party to maintain the person transferred in 

custody unless otherwise authorized by the sending Party. The person transferred must be returned immediately to the custody of the 

sending Party or as otherwise agreed by the Central Authorities, 

and the sending Party is not required to initiate extradition proceedings for the return of the person transferred. The person transferred also receives credit for time served in the custody of the receiving Party. 

Article 15(3) provides that the person transferred to the receiving 

Party shall enjoy the safe conduct provided for in Article 14 of the 

Treaty until the person’s return to the sending Party, unless the 

Central Authorities agree otherwise and the person consents. 

Article 16(1) obligates the Parties to assist each other to the extent permitted by their respective laws in proceedings relating to 

the forfeiture of the proceeds or instrumentalities of criminal offenses, including action to temporarily immobilize the proceeds or 

instrumentalities pending further proceedings. 

Article 16(2) provides that, if the Central Authority of one Party 

becomes aware that proceeds or instrumentalities of criminal offenses that may be forfeitable or otherwise subject to seizure are 

located in the other Party, it may so inform the Central Authority 

of the 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 of the Party that provided the information of any action taken. 

Under Article 16(3), the Party having custody over proceeds or 

instrumentalities of criminal offenses is required to retain or dispose of them in accordance with its laws. The custodial Party may 

transfer such proceeds or instrumentalities, in whole or in part, to 

the other Contracting Party, to the extent permitted by the transferring Party’s laws and upon such conditions as it deems appropriate. 

Article 17 states that assistance and procedures provided in the 

Treaty do not prevent either Party from granting assistance to the 

other through the provisions of other applicable international 

agreements or through the provisions of its national laws. 

Article 18 provides that the Central Authorities shall hold consultations for the purpose of facilitating speedy and effective assistance under the Treaty, and may agree upon such measures as may 

be necessary for this purpose. The Contracting Parties shall, if necessary, hold consultations on any matter that may arise in the 

Treaty’s interpretation or implementation. 

Article 19 provides that the Treaty is subject to ratification and 

that the instruments are to be exchanged as soon as possible. The 

Treaty then enters into force on the thirtieth day after the date of 

the exchange of instruments. Article 19(3) provides that the Treaty 

applies to requests presented on or after the date of its entry into 

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force, whether the relevant acts occurred before, on or after that 

date. Article 19(4) further provides that either Contracting Party 

may terminate the Treaty by giving six months written notice to 

the other Contracting Party. 

The Attachment contains the forms for authentication of business records and foreign public documents and certification with 

respect to seized items, as provided in Article 13 above. The Attachment is an integral part of the Treaty. 

The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate as soon as possible. 

Respectfully submitted, 

COLIN L. POWELL. 

(1)


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