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[Senate Treaty Document 107-13]
[From the U.S. Government Publishing Office]

107th Congress                                              Treaty Doc.
                                 SENATE                     
 2d Session                                                   107-13
_______________________________________________________________________

                                     

 
   TREATY WITH BELIZE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS

                               __________

                                MESSAGE

                                  FROM

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE 
  GOVERNMENT OF BELIZE ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, 
  SIGNED AT BELIZE ON SEPTEMBER 19, 2000, AND A RELATED EXCHANGE OF 
  NOTES SIGNED AT BELIZE ON SEPTEMBER 18 AND 22, 2000

July 15, 2002.--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
                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
99-118                    WASHINGTON : 2002

                         LETTER OF TRANSMITTAL

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                                    The White House, July 15, 2002.
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 Belize on Mutual Legal Assistance in Criminal 
Matters, signed at Belize on September 19, 2000, and a related 
exchange of notes signed at Belize on September 18 and 22, 
2000. I transmit also, for the information of the Senate, 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 being negotiated by the United States 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 crimes, including drug trafficking, money 
laundering, 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 the testimony or statements of persons; 
providing documents, records, and articles of evidence; 
locating or identifying persons; serving documents; 
transferring persons in custody for testimony or other 
purposes; executing requests for searches and seizures; 
assisting in proceedings related to immobilization and 
forfeiture of assets, restitution to the victims of crime and 
collection of fines; and any other form of assistance not 
prohibited by the laws of the State from whom the assistance is 
requested.
    I recommend that the Senate give early and favorable 
consideration to the Treaty, and give its advice and consent to 
ratification.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                          Washington, May 31, 2002.
The President,
The White House.
    The President: I have the honor to submit to you the Treaty 
Between the Government of the United States of America and the 
Government of Belize on Mutual Legal Assistance in Criminal 
Matters (``the Treaty''), signed at Belize on September 19, 
2000, and a related exchange of notes signed at Belize on 
September 18 and 22, 2000. 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 between the United States and a number of 
other countries. This Treaty contains many provisions similar 
to those other treaties and all of the essential provisions 
sought by the United States. It is accompanied by an exchange 
of notes (described below), which relates to Articles 1 and 9 
of the Treaty and which forms an integral part of the Treaty. 
The Treaty will enhance our ability to investigate and 
prosecute a variety of offenses, including money laundering, 
drug trafficking, and terrorism offenses of particular interest 
to the United States law enforcement community. 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 the testimony or statements of persons; 
providing documents, records, and articles of evidence; 
locating or identifying persons; serving documents; 
transferring persons in custody for testimony or other 
purposes; executing requests for searches and seizures; 
assisting in proceedings related to immobilization and 
forfeiture of assets, restitution to the victims of crime and 
collection of fines; and any other form of assistance not 
prohibited by the laws of the Requested State.
    The scope of the Treaty includes not only assistance 
provided in connection with the investigation, prosecution, and 
prevention of criminal offenses, but also proceedings related 
to criminal matters, which may be civil or administrative in 
nature. Article 1(3) states that, except as otherwise provided 
in the Treaty, assistance is to be provided without regard to 
whether the conduct involved would constitute an offense under 
the laws of the Requested State.
    This Treaty, like the MLAT with Antigua and Barbuda, is 
accompanied by an exchange of diplomatic notes which reflects 
the Parties' understanding that assistance under the Treaty 
includes criminal tax matters. The United States confirmed in 
its note that it does not intend to seek assistance under the 
Treaty in the routine civil and administrative enforcement of 
our income tax laws, including the regulation, imposition, 
calculation and collection of such income taxes, which are 
unrelated to any criminal matter. This merely restates the 
Treaty's scope by virtue of Article 1(1), which is a standard 
MLAT provision. The note from the Government of Belize 
confirmed its shared understanding on these issues. The 
exchange of notes constitutes an integral part of the Treaty.
    Article 1(4) states explicitly that the Treaty does not 
create a right on the part of any private person 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, and likewise for Belize, the 
Central Authority is the Attorney General or a person 
designated by the Attorney General. The article provides that 
the Central Authorities are to communicate directly with one 
another for the purposes of the Treaty.
    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 military 
offense that would not be an offense under ordinary criminal 
law, if its execution would prejudice the security or other 
essential public interests of the Requested State, or if it is 
not made in conformity with the Treaty. A request may also be 
denied if it relates to a political offense (a term the meaning 
of which is well-defined in the extradition context and 
expected to be defined on that basis in connection with mutual 
assistance) or if execution of the request would be contrary to 
the Constitution of the Requested State. Although, as Article 
1(3) makes clear, ``dual criminality'' is not generally a 
prerequisite for assistance under this Treaty, a request may be 
denied if it is made pursuant to provisions of the Treaty 
governing search and seizure (Article 14) or asset forfeiture 
(Article 16) and relates to conduct which would not be an 
offense if it had occurred in the Requested State. These last 
two grounds for denial are similar to clauses in United States 
mutual legal assistance treaties with other countries in the 
region, such as St. Kitts and Nevis. Article 3 also allows 
denial of assistance if the execution of the request requires 
compulsory measures in the Requested State and the request does 
not establish that there are reasonable grounds for believing 
that the criminal offense specified in the request has been 
committed.
    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 the 
Central Authority of the Requested State deems necessary. If 
the Requesting State accepts assistance subject to these 
conditions, it is required to comply with them. If the Central 
Authority of the Requested State denies assistance, it is 
required under Article 3(3) 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. A request for assistance must be in 
writing, except that a request may be accepted in another form 
in emergency situations, but would require written confirmation 
within ten days thereafter unless the Central Authority of the 
Requested State agrees otherwise.
    Article 5 concerns execution of requests. Article 5(1) 
requires the Central Authority of the Requested State 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 State must do 
everything in their power to execute a request, and that 
judicial and other authorities of the Requested State have 
authority to issue subpoenas, search warrants, or other orders 
necessary to execute the request. Under Article 5(2), 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.
    Article 5(3) provides that requests are to be executed in 
accordance with the internal laws and procedures of the 
Requested State except to the extent that the Treaty provides 
otherwise. Procedures specified in the request must be followed 
except to the extent that those procedures cannot lawfully be 
followed in the Requested State. Under Article 5(4), if the 
Central Authority of the Requested State 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 
determined to be necessary after consultations with the Central 
Authority of the Requesting State. If the Requesting State 
accepts assistance subject to conditions, it must comply with 
them.
    Article 5(5) further requires the Requested State, if so 
requested by the Central Authority of the Requesting State, to 
use its best efforts to keep confidential a request and its 
contents. The Central Authority of the Requested State must 
inform the Requesting State's Central Authority if the request 
cannot be executed without breaching such confidentiality. This 
provides the Requesting State an opportunity to decide whether 
to pursue the request or to withdraw it in order to maintain 
confidentiality.
    This article also requires the Requested State's Central 
Authority to respond to reasonable inquiries by the Requesting 
State's Central Authority concerning progress toward execution 
of a particular request; to promptly inform the Requesting 
State's Central Authority of the outcome of its execution; and, 
if the request is denied, to inform the Requesting State's 
Central; Authority of the basis for the denial.
    Article 6 apportions between the two States the costs 
incurred in executing a request. It provides that the Requested 
State must pay all costs relating to the execution of a 
request, 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 not to use 
information or evidence obtained under the Treaty for any 
purposes other than those described in the request without the 
prior consent of the Requested State. Further, if the 
Requesting State accepts information or evidence under the 
Treaty, subject to a request by the Requested State's Central 
Authority that it be kept confidential or be used in accordance 
with specified terms and 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, it may thereafter 
be used for any purpose. 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 disclosure.
    Article 8 provides that, insofar as the laws of the 
Requested State allow, a person in the Requested State from 
whom testimony or evidence is requested is to be compelled, if 
necessary, to appear and testify or produce items, including 
documents, records and articles of evidence. Upon request, the 
Central Authority of the Requested State is required to furnish 
information in advance about the date and place of the taking 
of testimony or evidence pursuant to this Article.
    Article 8(3) further requires the Requested State to permit 
persons specified in the request (such as the accused, counsel 
for the accused, or other interested person) to be present 
during execution of the request and to allow 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(4) provides that the testimony 
or evidence is to be taken and the claim made 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(5) provides a 
mechanism for authenticating evidence that is produced pursuant 
to or that is the subject of testimony taken in the Requested 
State. Business records authenticated through the use of Form 
A, attached to the Treaty, are to be admissible in evidence in 
the Requesting State.
    Article 9 requires the Requested State to provide the 
Requesting State with copies of publicly available records in 
the possession of government departments and agencies in the 
Requested State. The Requested State may also provide copies of 
any documents, 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 
provide them to its own law enforcement or judicial 
authorities. The Requested State has the discretion to deny 
requests for such nonpublic documents, entirely or in part. The 
accompanying exchange of notes confirms one purpose of these 
provisions of Article 9; they embody the parties' recognition 
of the need in many cases to restrict access to information 
collected by revenue authorities. Article 9 also provides that 
no further authentication is necessary for admissibility into 
evidence in the Requesting State of official records provided 
pursuant to this Article where the official in charge of 
maintaining them authenticates the records through the use of 
Form B appended to the 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 must 
indicate the extent to which the expenses will be paid and the 
Central Authority of the Requested State must promptly inform 
its counterpart in the Requesting State of the person's 
response. Article 10(2) requires the Central Authority of the 
Requesting State to inform the Central Authority of the 
Requested State whether a decision has been made by the 
relevant competent authorities that a person appearing in the 
Requesting State pursuant to this Article is not subject to 
service of process or detention or any restriction of personal 
liberty by reason of any acts or convictions that preceded his 
departure from the Requested State. Under Article 10(3), 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 returns to it. An 
extension of up to fifteen days for good cause may be granted 
by the Requesting State's competent authorities in their 
discretion.
    Article 11 provides for the temporary 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 testimony taken in the presence of 
the defendant), provided that the person in question consents 
and the Central Authorities of both States agree. The Article 
also provides for the 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(3) further 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 person transferred must be returned 
to the custody of the sending State as soon as circumstances 
permit or as otherwise agreed by the Central Authorities, and 
the sending State 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 State.
    Article 12 requires the Requested State to use its best 
efforts to ascertain the location or identity of persons or 
items specified in the 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 any request for assistance 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 Requesting 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 Requesting State may request that every official who has 
custody of a seized item certify, through the use of Form C 
appended to the Treaty, the continuity of custody, the identity 
of the item, and the integrity of its condition. No further 
certification is to be required and the certificate is 
admissible in evidence in the Requesting State. Article 14(3) 
further provides that the Central Authority of the Requested 
State may require that the Requesting State agree to terms and 
conditions deemed necessary to protect third party interests in 
the item to be transferred.
    Article 15 provides that the Central Authority of the 
Requested State may require its counterpart in the Requesting 
State to return items furnished to it in execution of a request 
as soon as possible.
    Article 16(1) provides that, if the Central Authority of 
one State becomes aware that proceeds or instrumentalities of 
offenses that may be forfeitable or otherwise subject to 
seizure are located in the other State, it may so inform the 
Central Authority of that other State. If the State 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(2) obligates the States to assist each other to 
the extent permitted by their respective laws in proceedings 
relating to the forfeiture of the proceeds and 
instrumentalities of offenses, restitution to victims of crime, 
and collection of fines imposed as sentences in criminal 
prosecutions. Under Article 16(3), the State having custody 
over proceeds or instrumentalities of offenses is required to 
dispose of them in accordance with its laws. Either State may 
stare all or part of such assets, or the proceeds of their 
sale, with the other State, to the extent not prohibited by the 
transferring State's laws and upon such terms as it deems 
appropriate.
    Article 17 states that assistance and procedures provided 
in the Treaty do not prevent either State from granting 
assistance to the other State through the provisions of other 
applicable international agreements or through the provisions 
of its national laws. The States may also provide assistance 
pursuant to any bilateral arrangement, agreement, or practice 
that may be applicable.
    Article 18 provides that the Central Authorities must 
consult, at times mutually agreed, to promote the most 
effective use of the Treaty, and may agree upon such practical 
measures, including training and technical assistance, as may 
be necessary to facilitate the Treaty's implementation.
    Article 19 provides that the Treaty is subject to 
ratification and the instruments are to be exchanged at 
Washington as soon as possible, whereupon the Treaty enters 
into force. Article 19(3) provides that the Treaty applies to 
requests presented after the date of its entry into force, 
whether the relevant acts or omissions occurred prior to or 
after that date. Article 19(4) further provides that either 
State may terminate the Treaty by written notice to the other 
State, termination to be effective six months after the date of 
receipt of such notice.
    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 State and Justice, and will be trransmitted 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,
                                                   Colin L. Powell.

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