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Published: 2008-03-26

Mutual Legal Assistance in Criminal Matters Treaties



MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATIES (MLATs) and OTHER AGREEMENTS

DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.

Criminal Cases Mutual Legal Assistance in Criminal Matters Treaties: Mutual Legal Assistance in Criminal Matters Treaties (MLATs) are relatively recent development. They seek to improve the effectiveness of judicial assistance and to regularize and facilitate its procedures. Each country designates a central authority, generally the two Justice Departments, for direct communication. The treaties include the power to summon witnesses, to compel the production of documents and other real evidence, to issue search warrants, and to serve process. Generally, the remedies offered by the treaties are only available to the prosecutors. The defense must usually proceed with the methods of obtaining evidence in criminal matters under the laws of the host country which usually involve letters rogatory. See "Questions" below.

MLAT Treaties in Force:

I. The United States has nineteen Mutual Legal Assistance Treaties (MLAT) currently in force: Argentina, Bahamas, Canada, Hungary, Italy, Jamaica, Korea, Mexico, Morocco, Netherlands, Panama, Philippines, Spain, Switzerland, Thailand, Turkey, United Kingdom (Cayman Islands), United Kingdom, Uruguay.

1. U.S. - Switzerland Treaty on Mutual Assistance in Criminal Matters, entered into force January 23, 1977, 27 UST 2019, TIAS 8302;

2. U.S. - Turkey Treaty on Extradition and Mutual Assistance in Criminal Matters, entered into force January 1, 1981, 32 UST 3111; TIAS 9891;

3. U.S. - Netherlands Treaty on Mutual Assistance in Criminal Matters, entered into force September 15, 1983, TIAS 10734;

4. U.S. - Italy Mutual Assistance Treaty, signed 11/9/82; entered into force November 13, 1985, 98th Cong., 2d Sess., Sen. Ex. 98-25, Exec. Rpt. 98-36; 24 ILM 1539;

5. U.S. - Canada Treaty on Mutual Assistance in Criminal Matters, signed 3/18/85; entered into force January 24, 1990, 100th Cong., 2d Sess, Treaty Doc. 100-14; Exec. Rpt. 100-28; Exec. Rpt. 101-10; 24 ILM 1092-1099, July 1985, No. 4;

6. Treaty Relating to Mutual Legal Assistance Between the U.S. and the United Kingdom concerning the Cayman Islands (subsequently expanded to cover Anguilla, the British Virgin Islands, Montserrat and the Turks and Caicos Islands), signed 7/3/86; entered into force March 19, 1990, 100th Cong., 1st Sess., Treaty Doc. 100-8, Exec. Rpt. 100-26; Exec. Rpt. 101-8; 26 ILM 536, March 1987;

7. U.S. - Bahamas Treaty on Mutual Assistance in Criminal Matters, entered into force July 18, 1990; Senate Treaty Doc. 100-17, 100th Cong., 2d., ratified October 24, 1989;

8. U.S. - Mexico Treaty on Cooperation for Mutual Legal Assistance, entered into force May 3, 1991, 100th Cong., 2d Sess., Treaty Doc. 100-13, Exec. Rpt. 100-27; Exec. Rpt. 1101-9; 27 ILM 433, March 1988;

9. U.S. - Argentina Treaty on Mutual Legal Assistance in Criminal Matters, entered into force February 9, 1993, 102d Cong., 1st Sess, Treaty Doc. 102-18, Exec. Rpt. 102-33; Senate Treaty Doc. 102-18;

10. U.S. - Thailand Treaty on Mutual Legal Assistance, entered into force June 10, 1993; Senate Treaty Doc. 100-17, 100th Cong., 2d, ratified October 24, 1989;

11. U.S. - Morocco Convention on Mutual Legal Assistance in Criminal Matters, entered into force June 23, 1993, Senate Treaty Doc. 98-24, 98th Cong., 2d;

12. U.S. - Spain Treaty on Mutual Legal Assistance in Criminal Matters, entered into force June 30, 1993. Senate Treaty Doc. 102-21, 102nd Cong. 2d. Ratified October 9, 1992;

13. U.S. - Uruguay Treaty on Mutual Assistance in Criminal Matters, ratified October 9, 1992; entered into force April 15, 1994, Senate Treaty Doc. 102-16, 102nd Cong., 1st.

14. U.S. - Panama Treaty on Mutual Assistance in Criminal Matters, Signed 4/11/91; Entered Into Force 9/6/95; Senate Treaty Doc. 102-5; 102nd Cong., 1st Sess., Treaty Doc. 102-15; Exec. Rpt. 104-3;

15. U.S. - Jamaica Treaty on Mutual Assistance in Criminal Matters, signed July 7, 1989. Ratified October 9, 1992; entered into force 7/25/95. 102d Cong., 1st Sess., Treaty Doc. 104-16; Exec. Rpt. 102-32.

16. U.S. - Philippines MLAT, signed 11/13/94; entered into force 11/23/96; 104th Cong. 1st Sess, Treaty Doc. 104-18, Exec. Rpt. 104-25.

17. U.S. - U.K. MLAT, signed 1/6/94; entered into force 12/2/96; 104th Cong., 1st Sess., Treaty Doc. 104-2, Exec. Rpt. 104-23;

18. U.S. - Hungary MLAT, signed December 1, 1994. entered into force 3/18/97; 104th Cong., 1st Sess., Treaty Doc. 104-26; Exec. Rpt. 104-26.

19. U.S. - South Korea MLAT, signed November 23, 1993; entered into force 5/23/97; 104th Cong., 1st Sess., Treaty Doc. 104-1, Exec. Rpt. 104-22.

II. MLATs Not Yet In Force: Fifteen more MLATs have been signed but have not yet entered into force (either because we are awaiting U.S. Senate advice and consent, the foreign country's approval, or both): U.S. - Antigua & Barbuda MLAT signed 6/3/96; U.S. - Argentina MLAT; U.S. - Australia MLAT signed 4/30/97; U.S. - Austria MLAT; U.S. - Barbados MLAT signed 2/28/96; U.S. - Belgium MLAT, signed January 28, 1988; U.S. - Columbia MLAT, signed August 20, 1980, U.S. - Dominica MLAT signed 10/10/96; U.S. - Grenada MLAT signed 5/30/96; U.S. - Hong Kong MLAT signed 4/15/97; U.S. - St. Lucia MLAT, signed 4/28/96; U.S. - Luxembourg MLAT, signed 3/13/97; U.S. - Nigeria MLAT, signed September 9, 1989; Organization of American States (OAS) MLAT and Protocol on Assistance in Tax Cases signed January 10, 1995;. U.S. - Poland MLAT, signed 7/10/96; U.S. - Trinidad MLAT.

III. Mutual Legal Assistance Treaties Ready for Signature or Nearing Successful Completion: U.S. - Sweden MLAT.

OTHER INTERNATIONAL AGREEMENTS

Executive Agreements: A number of executive agreements have entered into force between the United States and the Cayman Islands, the British Virgin Islands, Montserrat, Anguilla, Turks and Caicos, Haiti, Nigeria and the United Kingdom. Generally speaking, executive agreements have been limited to narcotics cases and have served as the first step towards agreement on a more expansive mutual assistance treaty. For additional information, contact the Office of International Affairs, Criminal Division, Department of Justice or the Office of the Legal Adviser for Law Enforcement and Intelligence, Department of State.

SEC Arrangements: The Securities and Exchange Commission (SEC) has developed informal, case-by-case understandings that facilitate the production of information from other countries. These range from Memoranda of Understanding to frameworks for cooperation to less specific exchanges and undertakings. Countries in question include Switzerland, Japan, Canada, Brazil, Netherlands, France, Mexico, Norway, Argentina, Spain, Italy, Chile, Australia, United Kingdom, Sweden, South Africa, Germany, Luxembourg, and Hungary, as well as Joint Statements of Cooperation with the European Union (EU). See Mann, Mari & Lavdas, International Agreements and Understands for the Production of Information and Other Mutual Assistance, The Int'l Law, Vol. 29, No. 4, 780, 838 (1995). See also, Transnational Initiatives, Cumulative Digest of United States Practice in International Law, 1981-1988, Department of State, Vol. II, 1495, 1510 (1994); Mann and Mari, Developments in International Securities Law Enforcement and Regulation, Securities Regulation Seminar, October 24, 1990, Los Angeles, California. For information about SEC Understandings with foreign securities officials, contact the Securities and Exchange Commission, Enforcement Division, Office of International Affairs.

Narcotics Agreements: United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances with annex and final act. Done at Vienna December 20, 1988. Entered into force November 11, 1990. Article 7 of this Convention to obtain evidence from other countries party to it without the need to use the cumbersome, time consuming letters rogatory process. For information, contact the Office of the Legal Adviser for Law Enforcement and Intelligence of the Department of State or the Office of International Affairs, Criminal Division, Department of Justice.

Not in Force: Inter-American Convention on the Taking of Evidence Abroad (14 Int'l Legal Materials 328 (1975) and Additional Protocol 24 Int'l Legal Materials 472 (1985). The United States has not signed or transmitted either document to the Senate for advice and consent to ratification. See also: Low, "International Judicial Assistance Among the American States: Inter-American Conventions", 18 Int'l Law. 705 (1984). Asian-African Legal Consultative Committee, draft bilateral arrangements for mutual assistance for the taking of evidence abroad in civil or commercial matters, 25 ILM 920-934, No. 4 (July 1986), together with explanatory notes at 934-956. The United States is not a party to this agreement.

SELECTED REFERENCES:

Ellis & Pisani, The United States Treaties on Mutual Assistance in Criminal Matters: A Comparative Analysis, 19 Int'l Law. 189 (1985).

Knapp, Mutual Legal Assistance Treaties as a Way to Pierce Bank Secrecy, 20 J. of Int'l L. 405, 434 (1988).

Nadelmann, Negotiations on Criminal Law Assistance Treaties, 33 Am. J. Comp. L. 467 (1985).

Nash, Cumulative Digest of United States Practice in International Law, 1981-1988, Department of State, Vol. II, 1449, 1488 (1994).

Ristau & Abbell, Vol. 3, International Judicial Assistance (Criminal), Sec. 12-4-1 - 12-4-8 (1995).

U.S. Attorney's Manual 9-15, October 1, 1988.

ADDITIONAL INFORMATION: The Office of American Citizens Services has available general information flyers on international judicial assistance many of which are available through our automated fax system or via our Internet Consular Affairs Home Page. These topics include country-specific information about service of process and obtaining evidence abroad.

Using the Autofax System:

* Dial (202) 647-3000 using the phone on your fax machine.

* Follow the prompt to obtain a printed index of judicial assistance topics. There are four indexes.

Travel Information - Index of Countries - Press 1
Passports and Visas - Index of Flyers - Press 2
Judicial Assistance - General and Country Specific - Press 3
Child Custody and Adoption - Index of Flyers - Press 4

* Enter the four digit code for the document desired as listed in the index.

* When the prompt identifies the document and asks if you want that document, enter Y (9) for yes or N (6) for no.

* If you want another document, enter the four digit code, using the same procedures noted in the previous step.

* When you finish selecting, press the # key on the phone keyboard and press the start button on your fax machine.

* After a brief delay of up to a minute, the documents will print automatically on your fax machine.

Using the Internet:

Many of our judicial assistance flyers are also available on the Internet via the Department of State, Bureau of Consular Affairs Home Page at the URL: http://travel.state.gov under "judicial assistance" or via the main State Department home page at http://www.state.gov/ under "travel".. See also, the Department of State, Office of the Legal Adviser for Private International Law (L/PIL) Home Page at http://his.com/~pildb/ for information about the work of the Hague Conference on Private International Law and the OAS in private international law unification. See also the home pages for many of our embassies which are linked to the Consular Affairs home page.

Treaty Databases on the Internet: Information on which countries are party to a particular treaty is available from the following databases:

United States Department of State, Office of the Legal Adviser, Treaty Affairs, List of Treaties and Other International Agreements of the United States In Force: http://www.acda.gov/state/.

United Nations (UN): http://www.un.org/ under Databases/Treaties at http://www.un.org/Depts/Treaty/;

Council of Europe (COE): http://www.coe.fr:80/index.html under Texts/Treaties http://www.coe.fr.80/eng/legaltxt/treaties.htm;

Organization of American States (OAS): http://www.oas.org/ under Public Information/Documents/Treaties at gopher://oasunix1.oas.org:70/11/pub/english/treaties.

U.S. House of Representatives Internet Law Library Treaties and International Law: http://law.house.gov/89.htm.

QUESTIONS: For additional information about the letters rogatory process or other non-MLAT procedures, contact the appropriate geographic division of the Office of American Citizens Services and Crisis Management at telephone (202) 647-5226. For specific information about MLATs, prosecutors may contact the Office of International Affairs, Criminal Division, Department of Justice, Washington, D.C. 20530, tel: (202) 514-0015 or the Office of the Legal Adviser, Department of State, Law Enforcement and Intelligence (L/LEI), Washington, D.C. 20520, tel: (202) 647-5111.

CA/OCS 12/97