7 FAM 900
INTERNATIONAL JUDICIAL ASSISTANCE
7 FAM 910
introduction and authorities
(CT:CON-807; 06-05-2018)
(Office of Origin: CA/OCS)
7 FAM 911 consular role
(CT:CON-449; 03-25-2013)
a. Due to the growth in international trade, travel,
cultural exchange, private international law, and crime, the demand for and
complexity of consular judicial assistance is growing and is often of critical
importance with respect to a broad range of U.S. policies and interests as
diverse as narcotics intervention, prosecution of terrorists, child adoption
and abduction, and international banking.
b. Judicial assistance is one of the many consular
functions that may demand rapid action and close attention to detail. It may
relate to litigation, investigation, evidence gathering, and legal discovery on
behalf of parties in the United States and in the host country.
c. Consular Officers are often called upon to provide
information on the local availability of attorneys, translators, and other
specialists who may be needed.
d. When providing judicial assistance abroad, a
consular officer must observe U.S. and host country legal procedures and
sensitivities in rendering such assistance. When in doubt about how to perform
unfamiliar judicial functions not described in this chapter, you should consult
with the Department (CA/OCS/ACS). Legal questions may be addressed to CA/OCS/L
at Ask-OCS-L@state.gov. CA/OCS/L will consult with the Office of the Legal
Adviser and the U.S. Department of Justice as appropriate.
7 FAM 912 AUTHORITY TO PERFORM JUDICIAL
SERVICES
7 FAM 912.1 Depositions
(CT:CON-126; 01-25-2006)
a. Federal Authority: Federal authority for consular
officers to take depositions is established in:
(1) 22 U.S.C. 4215 (notarial acts, oaths,
affirmations, affidavits, and depositions; fees) and 22 U.S.C. 4221
(depositions and notarial acts; perjury);
(2) Rules 28-31, Federal Rules of Civil Procedure
(F.R. Civ. P., Rule 28(b)), expressly provide that depositions may be taken in
foreign countries by any of the following methods: on notice, by commission, or
pursuant to letters rogatory; and
(3) Rules 15 and 17, Federal Rules of Criminal
Procedure (F.R. Crim. P.).
b. State Authority: State laws pertaining to the role
of consular officers in taking depositions for state court proceedings can be
found in the Law Digest volumes of the Martindale-Hubbell Law Directory.
c. Restrictions:
(1) Procedures for obtaining evidence by deposition
abroad may vary in civil, criminal, and administrative cases. Many countries
do not permit pre-trial discovery of documents. Some countries, for example,
China, prohibit the taking of voluntary depositions. In order to avoid
violating principals of judicial sovereignty, evidence obtained abroad must not
be gathered in contradiction of the laws of foreign jurisdiction; and
(2) In cases where a deposition abroad is to be taken
before a U.S. consular officer on notice or pursuant to a Commission (see 7 FAM 920),
reasonable written advance notice must be given by the requesting authority to
the deponent and opposing counsel as well as to the consular officer concerned.
7 FAM 912.2 Service of Process on
Persons in Foreign Countries
(CT:CON-807; 06-05-2018)
a. Federal authority pertaining to the service of civil
process abroad is found in:
(1) 28 U.S.C. 1783 (subpoenas of persons in foreign
countries); and
(2) 28 U.S.C. 1784 (contempt). (See 7 FAM 950).
b. Information about service of process upon the U.S.
Government, any of its agencies, or any of its employees may be found in 28
U.S.C. 1346 and 28 U.S.C. 2671 - 2680 (Tort Claims).
c. Service of process in U.S. Federal or State
litigation involving official activities of the Department of State or its
employees must be made in accordance with 22 CFR, Part 172. These provide that
only L-H/EX is authorized to accept
service of process. 7 FAM 970
provides information regarding litigation against the United States and 7 FAM 980
provides information regarding subpoena for consular testimony or records.
7 FAM 912.3 Service of Process Upon
Foreign State
(CT:CON-126; 01-25-2006)
Pertinent Federal authority relating to service of process
upon foreign states or political subdivisions thereof is located in 28 U.S.C.
1330, 1602-1611, and in 22 CFR, Part 93.
7 FAM 912.4 Privacy Act
(CT:CON-807; 06-05-2018)
The Privacy Act of 1974, 5 U.S.C. 552a, places certain
restrictions on the release of personal information about U.S. citizens or U.S.
resident aliens to other parties. When considering the release of information
to foreign law enforcement officials, consular officers should comply with
appropriate provisions of the Privacy Act. See 22 CFR 171.30 , Chapter 5 of
the Publication on Consular Management, and 5 FAM 490. For
additional guidance, consult the Department (CA/OCS) as appropriate. (See 7 FAM 060).
7 FAM 912.5 International Treaties
and Conventions
(CT:CON-126; 01-25-2006)
a. The 1970 Hague Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters provides for the taking of depositions
in countries that are parties thereto. This convention came into force for the
United States on October 7, 1972. The official sources/citations for the
Convention are 23 UST 2555; TIAS 7444. For a full discussion of the
convention, see 7
FAM 935.1.
b. Also applicable to the taking of depositions by
consular officers is the Vienna Convention on Consular Relations, Article 5,
Paragraphs (f), (i), and (j)
7 FAM 912.6 Selected Bilateral
Agreements
(CT:CON-126; 01-25-2006)
a. Many bilateral consular conventions include
provisions regarding taking testimony, transmitting letters rogatory and
service of process. See Treaties in Force, the CA/OCS Intranet treaties
feature and the Departments internet travel site, bilateral consular
conventions database.
b. Selected bilateral agreements provide special
arrangements for taking depositions. These agreements normally take the form
of an exchange of diplomatic notes. Such agreements are in force, for example,
between the United States and the Federal Republic of Germany (FRG), and
between the United States and each of the twelve successor states of the former
USSR, that remain bound by an agreement done between the United States and the
former USSR.
7 FAM 912.7 Other International
Agreement
(CT:CON-126; 01-25-2006)
Article 7 of the 1988 United Nations Convention Against
Illicit Traffic in Narcotics Drugs and Psychotropic Substances, Vienna,
December 20, 1988, permits evidence to be obtained from the countries party to
it without the need for letters rogatory.
7 FAM 912.8 Mutual Legal Assistance
Treaties
(CT:CON-126; 01-25-2006)
7 FAM 960
provides guidance about Mutual Legal Assistance (MLAT) treaties.
7 FAM 912.9 Where No Applicable
Treaty Exists
(CT:CON-126; 01-25-2006)
In countries where the right to take depositions is not
secured by treaty, consular officers may take depositions only if the laws or
authorities of the receiving state do not prohibit them from doing so. For
example, consular officers may not take depositions in Russia, even if the
witness is willing to be deposed.
7 FAM 913 DEFINITIONS
(CT:CON-126; 01-25-2006)
These terms are commonly used in judicial assistance.
Action. A law suit or other
proceeding pending before a court or a quasi-judicial body or a body acting in
such a capacity.
Affidavit. A written statement
made voluntarily and confirmed either by (1) the oath or affirmation of the
party making it, taken before an officer having the authority to administer
such oaths (See 22 CFR 92.22), or (2) by conforming to the rules of a particular
court for signing an affidavit without the use of a notary or equivalent (e.g.,
declaring a statement to be true under penalty of perjury; see 7 FAM 856).
Affirmation. A solemn and
formal declaration that an affidavit is true or that the witness will tell the
truth; this declaration may usually be substituted for an oath in proceedings
in U.S. courts. (See 22 CFR 92.18(b)).
Commission. A written
authorization issued by a court of justice or a quasi-judicial body, or by a
body acting in such a capacity, giving power to take the testimony of witnesses
who cannot appear personally to be examined in the court or before the body
issuing the commission. (See 22 CFR 92.53).
Counsel or legal counsel. A
person licensed or otherwise authorized to practice law in a particular
jurisdiction, by handling the trial or management of a case in court and/or
advising and representing an individual or corporate client in legal matters.
Declaration under penalty of perjury.
A simple declaration used instead of a notarized oath or affirmation which,
when permitted, eliminates the need for an oath before the consular officer.
(See 7 FAM 856).
Default judgment. A judgment
rendered in consequence of the nonappearance of the defendant or for failure to
take some required step to defend against the charges or claim in a specific
action.
Deposition. The testimony of a
person, whether a party or not (often referred to as a deponent), given under
oath or affirmation before a designated or appointed individual other than the
judge, jury, or other body that will adjudicate the claim, in response to
questions, oral or written, by a party to the litigation, and recorded for
later use. A deposition is usually recorded in writing but is sometimes
videotaped or tape recorded, where not prohibited by host country law. (See 22
CFR 92.49).
Discovery. Pretrial procedures
that can be used by one party to obtain facts and information about the case
from the other party or from third parties in order to assist the partys
preparation for trial.
Disinterested party. A person
with no stake in the outcome of the action for which the testimony is sought,
and unconnected with the parties or witnesses.
Interrogatories. Questions
posed to a person or entity. Normally, in connection with litigation, the term
means written questions given to one party to an action by another party that
require response in writing under oath. Cross-interrogatories are questions
posed by the opposing party or the attorney of the opposing party.
Letter rogatory. A formal
request for judicial assistance from a court in one country to a court in
another country. (See 22 CFR 92.54).
Notice. A written declaration
by a party to a lawsuit to the opposing party of intent to take some action in
connection with the litigation, such as a notice to take a deposition. (See 22
CFR 92.52).
Oath. Broadly, any form of
attestation by which persons signify that they are bound in conscience to
perform an act faithfully and truthfully. (See 22 CFR 92.18 (a)). With respect
to testimony and statements in connection with litigation, it is an affirmation
of the truth of a statement that renders one punishable for perjury if one
willfully makes untrue statements.
Order to show cause. A court
order to present reasons why a person who failed to comply with a prior court
directive should not be held in contempt of that court, and/or why an earlier
directive should not be confirmed or take effect.
Party. For purposes of this
chapter, one who is engaged in a legal proceeding: a plaintiff or defendant in
a lawsuit, or the counsel of record. A party may be an individual or an
organization.
Service of Process. The
delivery or legal equivalent of delivery of a complaint, summons, or subpoena,
upon a person or entity with the result that the person must respond. Service
of process frequently refers to the legal effective delivery of the complaint
and summons, commencing a lawsuit to the defendant.
Subpoena. A written command
issued under the authority of a court, requiring the attendance of a person or
the production of specified documents before the court or grand jury, with
potential penalties for failure to comply.
Summons. A document by which a
party is summoned to answer a complaint filed with a court.
Testimony. The oral statements
of a witness under oath or affirmation, usually in court proceedings.
Tort claim. A claim of one
person against another person alleging an injury, offense, or wrongful act, not
including breach of contract, for which the claimant is entitled to
compensation.
7 FAM 914 through 919 unassigned