GERMAN GOVERNMENT SENDS LEGISLATION TO PARLIAMENT

UNCLAS SECTION 01 OF 02 BERLIN 003564

SIPDIS

SENSITIVE
SIPDIS

DEPARTMENT FOR EUR/AGS AND L/LEI (KEN PROPP)
DOJ FOR BRUCE SWARTZ AND LINDA MCKINNEY
USEU FOR MARK RICHARD

E.O. 12958: N/A
TAGS: KJUS PREL PGOV GM
SUBJECT: GERMAN GOVERNMENT SENDS LEGISLATION TO PARLIAMENT
TO APPROVE U.S.-GERMAN JUDICIAL COOPERATION TREATIES

REF: BERLIN 3540

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Summary
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1. (U) On December 13, the German cabinet approved enabling
legislation for five treaties on German-U.S. judicial
cooperation in criminal matters, paving the way for their
ratification. As a next step in the ratification process,
both houses of the German Parliament (the Bundestag and
Bundesrat) must approve the legislation, which will then be
transmitted to the German Federal President for his
signature. The treaties will significantly improve and
expand judicial cooperation. End Summary.

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Background -- Current Legal Situation
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2. (U) Currently, an extradition treaty signed in 1976 and a
supplemental treaty of 1986 provide the legal basis for
extradition between Germany and the U.S. in connection with
criminal prosecutions or enforcement of criminal penalties.
Legal assistance requests for evidence to be used in criminal
proceedings are handled by way of letters rogatory.

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MLAT
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3. (U) The bill on German-U.S. judicial cooperation approved
by the German cabinet and sent on to the parliament enables
the ratification of five treaties dealing with both legal
assistance and extradition. First, the bill would ratify the
bilateral Mutual Legal Assistance Treaty in Criminal Matters
(MLAT) that was signed between the United States and Germany
on October 14, 2003 after over twenty years of negotiations.
This treaty is designed to provide the legal basis for the
formal procedures by which the two countries afford each
other legal assistance in criminal matters. The new MLAT
will not only establish a legal obligation to afford each
other legal assistance, but also will allow a variety of new
types of legal assistance, such as telecommunication
surveillance and undercover investigations. Moreover, the
agreement breaks new ground in including detailed provisions
regulating the use of information in order to comply with
German data protection concerns (Ref) without compromising
the flexibility of U.S. law enforcement.

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U.S.-EU Agreement
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4. (U) The bill also approves the Agreement on Extradition
between the European Union and the United States, as well as
the Agreement on Mutual Legal Assistance between the European
Union and the United States, which were signed on June 25,

2003. These post-9/11 agreements signify a notable
advancement in law enforcement cooperation with the entire
EU. The agreements are designed to speed up and simplify the
extradition process, enhance grounds for allowing
extradition, and expand legal assistance in criminal matters.
Key provisions in the mutual assistance area include
mechanisms to facilitate the exchange of banking information
between investigating authorities and for using new
techniques, including joint investigative teams.

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Supplementary Treaties
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5. (U) Finally, the bill will approve two supplementary
implementing instruments on extradition and on legal
assistance that were negotiated as a result of the two
U.S.-EU agreements. Since the two U.S.-EU agreements were
formally concluded between the European Union and the United
States, but are applied in bilateral relationships between
individual EU member states and the U.S., bilateral
implementing agreements with each EU member state had to be
negotiated, taking into account pre-existing bilateral

BERLIN 00003564 002 OF 002


provisions. Such supplemental treaties between Germany and
the U.S. were signed on April 18, 2006. The supplemental
treaty to the bilateral extradition treaty adds the
provisions of the U.S.-EU extradition agreement to the
existing bilateral agreement. Similarly, the supplemental
treaty to the new bilateral MLAT will amend the MLAT to bring
it into compliance with the provisions of the U.S.-EU legal
assistance agreement.

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Next Steps
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6. (SBU) The bill must be approved by the German Parliament
(Bundestag and Bundesrat) and signed by the Federal
President. Parliamentary approval is expected in early 2007.
According to the official explanatory commentary that
accompanied the legislative package, the ratification process
for the U.S.-EU agreement could take considerable time
because the necessary domestic procedures have to be
completed in all participating EU member states. According
to Holger Karitzky, of the International Criminal Law Office
of the German Federal Ministry of Justice, even though
Germany has wrapped all of the treaties into one legislative
package, the MLAT and the U.S.-EU agreement (which presumably
will take much longer to ratify) can enter into force
independently of each other and at different times. The
supplemental treaty to the MLAT will enter into force on the
date of entry of the MLAT. This will ensure that legal
assistance requests can be processed according to the new
legal basis as soon as possible.
KOENIG