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12889 Brazil - Treaty on Mutual Legal Assistance in Criminal Matters


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12889

 

 

MUTUAL LEGAL ASSISTANCE

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and BRAZIL

 

Signed at Brasilia October 14, 1997

 

 

 

 


 

 

NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”


 

 

 

 

BRAZIL

Mutual Legal Assistance

Treaty signed at Brasilia October 14, 1997;
Transmitted by the President of the United States of America
to the Senate April 28, 1998 (Treaty Doc. 105-42,
105th Congress, 2d Session);
Reported favorably by the Senate Committee on Foreign Relations
October 2, 1998 (Senate Executive Report No. 105-22,
105th Congress, 2d Session);
Advice and consent to ratification by the Senate
October 21, 1998;
Ratified by the President January 20, 1999;
Ratified by Brazil December 18, 2000;
Ratifications exchanged at Brasilia February 21, 2001;
Entered into force February 21, 2001.

TREATY BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL
ON
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
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The Government of the United States of America and the Government of the Federative Republic of Brazil,
Desiring to improve the effectiveness of the law enforcement authorities of both countries in the investigation, prosecution, and prevention of crime through cooperation and mutual legal assistance in criminal matters,
Have agreed as follows:
Article 1 3 Scope of Assistance
1. The Parties shall provide mutual assistance, in accordance with the provisions of this Treaty, in connection with the investigation, prosecution, and prevention of offenses, and in proceedings related to criminal matters.
2. Assistance shall include:
(a) taking the testimony or statements of persons;
(b) providing documents, records, and items;
(c) locating or identifying persons or items;
(d) serving documents;
(e) transferring persons in custody for testimony or other purposes;
(f) executing requests for searches and seizures;
(g) assisting in proceedings related to immobilization and forfeiture of assets; restitution; collection of fines; and
(h) any other form of assistance not prohibited by the laws of the Requested State.
3. Assistance shall be provided without regard to whether the conduct that is the subject of the investigation, prosecution, or proceeding would be punishable under the legislation in both States.
4. The Parties recognize the particular importance of combating serious criminal activities, including money laundering and the illicit trafficking in firearms, ammunition and explosives. Without limitation to the scope of assistance established in this Article, the Parties shall provide each other assistance on such matters in accordance with this Treaty.
5. This Treaty is intended solely for mutual legal 4 assistance between the Parties. The provisions of this Treaty shall not give rise to 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
Central Authorities
1. Each Party shall designate a Central Authority to make and receive requests pursuant to this Treaty.
2. For the United States of America, the Central Authority shall be the Attorney General or a person designated by the Attorney General. For the Federative Republic of Brazil, the Central Authority shall be the Ministry of Justice.
3. The Central Authorities shall communicate directly with one another for the purposes of this Treaty.
Article 3
Limitations on Assistance
1. The Central Authority of the Requested State may deny assistance if:
(a) the request relates to an offense under military law which would not be an offense under ordinary criminal law;
(b) the execution of the request would prejudice the security or similar essential interests of the Requested State; or
(c) the request is not made in conformity with the Treaty.
2. Before denying assistance pursuant to this Article, the Central Authority of the Requested State shall consult with the
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Central Authority of the Requesting State to consider whether assistance can be given subject to such conditions as it deems necessary. If the Requesting State accepts assistance subject to these conditions, it shall comply with the conditions.
3. If the Central Authority of the Requested State denies assistance, it shall inform the Central Authority of the Requesting State of the reasons for the denial.
Article 4
Form and Contents of Requests
1. A request for assistance shall be in writing except that the Central Authority of the Requested State may accept a request in another form in urgent situations. In any such case, if the request is not in writing, it shall be confirmed in writing within thirty days thereafter unless the Central Authority of the Requested State agrees otherwise. The request shall be in the language of the Requested State unless otherwise agreed.
2. The request shall include the following:
(a) the name of the authority conducting the investigation, prosecution, or proceeding to which the request relates;
(b) a description of the subject matter and nature of the investigation, prosecution, or proceeding, including, to the extent known, the specific criminal offenses that relate to the matter;
(c) a description of the evidence, information, or other assistance sought; and
(d) a statement of the purpose for which the evidence, information, or other assistance is sought.
3. To the extent necessary and possible, a request shall 6 also include:
(a) information on the identity and location of any person from whom evidence is sought;
(b) information on the identity and location of a person to be served, that person's relationship to the proceedings, and the manner in which service is to be made;
(c) information on the identity and whereabouts of a person to be located;
(d) a precise description of the place or person to be searched and of the items to be seized;
(e) a description of the manner in which any testimony or statement is to be taken and recorded;
(f) a list of questions to be asked of a witness;
(g) a description of any particular procedure to be followed in executing the request;
(h) information as to the allowances and expenses to which a person asked to appear in the Requesting State will be entitled; and
(i) any other information that may be brought to the attention of the Requested State to facilitate the execution of the request.
Article 5
Execution of Requests
1. The Central Authority of the Requested State shall promptly execute the request or, when appropriate, shall transmit it to the officials having authority to do so. The competent officials of the Requested State shall do everything in their power to execute the request. The Courts of the Requested State shall issue subpoenas, search warrants, or other orders necessary to execute the request.
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2. The Central Authority of the Requested State shall make all necessary arrangements for and meet the costs of the representation in the Requested State of the Requesting State in any proceedings arising out of a request for assistance pursuant to this Treaty.
3. Requests shall be executed in accordance with the laws of the Requested State except to the extent that this Treaty provides otherwise. However, the method of execution specified in the request shall be followed except insofar as it is prohibited by the laws of the Requested State.
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 the assistance subject to the conditions, it shall comply with the conditions.
5. The Requested State shall use its best efforts to keep confidential a request and its contents if such confidentiality is requested by the Central Authority of the Requesting State. If the request cannot be executed without breaching such confidentiality, the Central Authority of the Requested State shall so inform the Central Authority of the Requesting State, which shall then determine whether the request should nevertheless be executed.
6. The Central Authority of the Requested State shall respond to reasonable inquiries by the Central Authority of the Requesting State concerning progress toward execution of the request.
7. The Central Authority of the Requested State shall promptly inform the Central Authority of the Requesting State of
of the execution of the request. If the execution of is denied, delayed, or postponed, the Central Authority
the outcome the request
of the Requested State shall inform the Central Authority of the
Requesting State of the reasons for the denial, delay, or
postponement.

Article 6

Costs
The Requested State shall pay all costs execution of the request, except for the fees the costs of translation, interpretation, and the allowances and expenses related to travel
relating to the
of expert witnesses, transcription, and of persons pursuant
to Articles 10 and 11, which fees, costs, allowances, and expenses
shall be paid by the Requesting State.

Aricle 7

Limitations on Use
1. The Central Authority of the Requested State may request that the Requesting State not use any information or evidence obtained under this Treaty in any investigation, prosecution, or proceeding other than that described in the request without the prior consent of the Central Authority of the Requested State. In such cases, the Requesting State shall comply with the conditions.
2. The Central Authority of the Requested State may request that information or evidence furnished under this Treaty be kept confidential or be used only subject to terms and conditions it may specify. If the Requesting State accepts the information or evidence subject to such conditions, the Requesting State shall comply with the conditions.
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3. Nothing in this Article shall preclude the use or 9 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 shall notify the Requested State in advance of any such proposed disclosure.
4. Information or evidence that has been made public in the Requesting State in a manner consistent with paragraph 1 or 2 may thereafter be used for any purpose.
Article 8
Testimony or Evidence in the Requested State
1. A person in the Requested State from whom testimony or evidence is requested pursuant to this Treaty shall be compelled, if necessary, to appear and testify or produce documents, records, or items.
2. Upon request, the Central Authority of the Requested State shall furnish information in advance about the date and place of the taking of the testimony or evidence pursuant to this Article.
3. The Requested State shall permit the presence of such persons as specified in the request during the execution of the request, and shall allow such persons to present questions to be asked of the person giving the testimony or evidence.
4. If the person referred to in paragraph 1 asserts a claim of immunity, incapacity, or privilege under the laws of the Requesting State, the testimony or evidence shall nonetheless be taken and the claim made known to the Central Authority of the Requesting State so that the claim may be resolved by the authorities of that State.
5. Evidence produced in the Requested State pursuant to 10 this Article or which is the subject of testimony taken under this Article may be authenticated by an attestation, including, in the case of business records, authentication in the manner indicated in Form A appended to this Treaty. Documents authenticated by Form A shall be admissible evidence in the Requesting State.
Article 9
Official Records
1. The Requested State shall provide the Requesting State with copies of publicly available records, including documents or information in any form, in the possession of authorities in the Requested State.
2. The Requested State may provide copies of any records, including documents or information in any form, that are in the possession of authorities in that State, but that are not publicly available, to the same extent and under the same conditions as such copies would be available to its own law enforcement or judicial authorities. The Requested State may in its discretion deny a request pursuant to this paragraph entirely or in part.
3. Official records produced pursuant to this Article may be authenticated by the official in charge of maintaining them through the use of Form B appended to this Treaty. No further authentication shall be necessary. Documents authenticated under this paragraph shall be admissible evidence in the Requesting State.
Article 10
Testimony in the Requesting State
1. When the Requesting State requests the appearance of a person in that State, the Requested State shall invite the person
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to appear before the appropriate authority in the Requesting State. The Requesting State shall indicate the extent to which the expenses will be paid. The Central Authority of the Requested State shall promptly inform the Central Authority of the Requesting State of the response of the person.
2. The Central Authority of the Requesting State may, in its discretion, determine that a person appearing in the Requesting State pursuant to this Article shall not be subject to service of process, or be detained or subjected to any restriction of personal liberty, by reason of any acts or convictions that preceded his departure from the Requested State. The Central Authority of the Requesting State shall promptly inform the Central Authority of the Requested State whether such safe conduct shall be extended.
3. The safe conduct provided for by this Article shall cease 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 when the person, having left the Requesting State, voluntarily returns. The Central Authority of the Requesting State may, in its discretion, extend this period for up to fifteen days
Article 11
Transfer of Persons in Custody
1. A person in the custody of the Requested State whose presence in the Requesting State is sought for purposes of assistance under this Treaty shall be transferred from the Requested State to the Requesting State for that purpose if the person consents and if the Central Authorities of both States agree.
2. A person in the custody of the Requesting State whose presence in the Requested State is sought for purposes of assistance under this Treaty may be transferred from the Requesting
State to the Requested State if the person consents and if the Central Authorities of both States agree.
3. For purposes of this Article:
(a) the receiving State shall have the authority and the obligation to keep the person transferred in custody unless otherwise authorized by the sending State;
(b) the receiving State shall return the person transferred to the custody of the sending State as soon as circumstances permit or as otherwise agreed by both Central Authorities;
(c) the receiving State shall not require the sending State to initiate extradition proceedings for the return of the person transferred; and
(d) the person transferred shall receive credit for service of the sentence imposed in the sending State for time served in the custody of the receiving State.
Article 12
Location or Identification of Persons or Items
The Requested State shall use its best efforts to ascertain the location or identity of persons or items specified in the request.
Article 13
Service of Documents
1. The Requested State shall use its best efforts to effect service of any document relating, in whole or in part, to any
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request for assistance made by the Requesting State under the provisions of this Treaty.
2. The Requesting State shall transmit any request for the service of a document requiring the appearance of a person before an authority in the Requesting State within a reasonable time prior to the scheduled appearance.
3. The Requested State shall return a proof of service in the manner specified in the request.
Article 14
Search and Seizure
1. The Requested State shall execute a request for the 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.
2. Upon request, every official who has custody of a seized item shall certify, through the use of Form C appended to this Treaty, the continuity of custody, the description of the item, and the integrity of its condition. No further certification shall be required. Form C shall be admissible evidence in the Requesting State.
3. The Central Authority of the Requested State may require that the Requesting State agree to the terms and conditions deemed to be necessary to protect third party interests in the item to be transferred.
Article 15
Return of Items
The Central Authority of the Requested State may require that the Central Authority of the Requesting State return, as soon as possible, any documents, records, or items furnished to it in execution of a request under this Treaty.
Article 16
Assistance in Forfeiture Proceedings
1. If the Central Authority of one Party becomes aware of proceeds or instrumentalities of offenses that are located in the territory of the other Party and may be forfeitable or otherwise subject to seizure under the laws of that Party, it may so inform the Central Authority of the other Party. If that other Party has jurisdiction in this regard, it may present this information to its authorities for a determination whether any action is appropriate. These authorities shall issue their decision in accordance with the laws of their country, and shall, through their Central Authority, report to the other Party on the action taken.
2. The Parties shall 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 the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions. Such assistance may include action to temporarily immobilize the proceeds or instrumentalities pending further proceedings.
3. The Party that has custody over proceeds or instrumentalities of offenses shall dispose of them in accordance with its laws. Either Party may transfer all or part of such assets, or the proceeds of their sale, to the other Party, to the
extent permitted by the transferring Party's laws and upon such terms as it deems appropriate.
Article 17
Compatibility with Other Treaties
Assistance and procedures set forth in this Treaty shall not prevent either Party from granting assistance to the other Party through the provisions of other applicable international agreements, or through the provisions of its national laws. The Parties may also provide assistance to each other pursuant to any bilateral arrangement, agreement, or practice that may be applicable.
Article 18 Consultation
The Central Authorities of the Parties shall consult, at times mutually agreed to by them, to promote the most effective use of this Treaty. The Central Authorities may also agree on such practical measures as may be necessary to facilitate the implementation of this Treaty.
Article 19 Application
This Treaty shall apply to any request presented after the date of its entry into force, even if the acts or omissions constituting the offense occurred before that date.
Article 20
Ratification, Entry Into Force, and Termination
1. This Treaty shall be subject to ratification, and the instruments of ratification shall be exchanged as soon as possible.
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2. This Treaty shall enter into force upon the exchange of the instruments of ratification.
3. The Parties may amend this Treaty by mutual agreement, and any such amendment shall enter into force upon a written exchange of notifications between the Parties, through the diplomatic channel, that all domestic requirements for its entry into force have been completed.
4. Either Party may terminate this Treaty by means of written notice, through the diplomatic channel, to the other Party. Termination shall take effect six months following the date of notification.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Treaty.
DONE at Brasilia, in duplicate, this 14th day of October, 1997, in the English and Portuguese languages, both texts being equally authentic.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
FOR THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL:
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FORM A (For Use With Article 8)
CERTIFICATE OF AUTHENTICITY OF
BUSINESS RECORDS
I, attest on penalty of (Name)
criminal punishment for false statement or false attestation that I am employed by
(Name of Business from which documents are sought) and that my official title is
I further state that each of the records attached hereto is the original or a duplicate of the original records in the
custody of (Name of Business from which documents are sought)
I further state that:
A) such records were made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters;
B) such records were kept in the course of a regularly conducted business activity;
C) the business activity made such records as a regular practice; and
D) if such record is not the original, such record is a duplicate of the original.
Signature Date
Sworn to or affirmed before me.
(Name)
a this
(notary public, judge, judicial officer, etc.)
day of 19
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FORM B (For Use With Article 9)
ATTESTATION OF AUTHENTICITY OF FOREIGN PUBLIC DOCUMENTS
I , attest on penalty of
(Name)
criminal punishment for false statement or attestation that
my position with the Government of
(Country)
is and that in that position I (Official Title)
am authorized by the law of
(Country)
to attest that the documents attached and described below are true and accurate copies of original official records which
are recorded or filed in
(Name of Office or Agency)
which is a government office or agency of
(Country)
Description of Documents:
(Signature)
(Title)
(Date)
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FORM C (For Use With Article 14)
ATTESTATION WITH RESPECT TO SEIZED ARTICLES
I, attest on penalty of (Name)
criminal punishment for false statements or attestation that
my position with the Government of (Country)
is . I received the articles (Official Title)
listed below from
(Name of Person)
on , at
(Date) (Place)
in the following condition:
Description of Article:
Changes in Condition while in my custody:
Official Seal
(Signature)
(Title)
(Date)

 

 



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