[Senate Executive Report 104-31]
[From the U.S. Government Publishing Office]
104th Congress Exec. Rept.
SENATE
2d Session 104-31
_______________________________________________________________________
EXTRADITION TREATY WITH BOLIVIA
_______
July 30, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Doc. 104-22]
The Committee on Foreign Relations to which was referred
the Extradition Treaty Between the Government of the United
States of America and the Government of the Republic of
Bolivia, signed at La Paz on June 27, 1995, having considered
the same, reports favorably thereon with one proviso, and
recommends that the Senate give its advice and consent to the
ratification thereof as set forth in this report and the
accompanying resolution of ratification.
I. Purpose
Modern extradition treaties (1) identify the offenses for
which extradition will be granted, (2) establish procedures to
be followed in presenting extradition requests, (3) enumerate
exceptions to the duty to extradite, (4) specify the evidence
required to support a finding of a duty to extradite, and (5)
set forth administrative provisions for bearing costs and legal
representation.
II. Background
On June 27, 1995, the President signed an extradition
treaty with Bolivia. The Treaty was transmitted to the Senate
for its advice and consent to ratification on October 10, 1995.
In recent years the Departments of State and Justice have led
an effort to modernize U.S. bilateral extradition treaties to
better combat international criminal activity, such as drug
trafficking, terrorism and money laundering. The United States
is a party to approximately 100 bilateral extradition treaties.
According to the Justice Department, during 1995 131
individuals were extradited to the United States and 79
individuals were extradited from the United States.
The increase in international crime also has prompted the
U.S. government to become a party to several multilateral
international conventions which, although not themselves
extradition treaties, deal with international law enforcement
and provide that the offenses which they cover shall be
extraditable offenses in any extradition treaty between the
parties. These include: the Convention for the Suppression of
Unlawful Seizure of Aircraft (Hague), art. 8; the Convention to
Discourage Acts of Violence Against Civil Aviation (Montreal),
art. 8; the Protocol Amending the Single Convention on Narcotic
Drugs of 1961, art. 14 amending art. 36(2)(b)(I) of the Single
Convention; the Convention to Prevent and Punish Acts of
Terrorism Taking the Form of Crimes Against Persons and Related
Extortion that are of International Significance (Organization
of American States), art. 3; the Convention on the Prevention
and Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents, art. 8; the International
Convention against the Taking of Hostages, art. 10; the
Convention on the Physical Protection of Nuclear Materials,
art. 11; and the United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (Vienna).
These multilateral international agreements are incorporated by
reference in the United States' bilateral extradition treaties.
III. Summary
a. general
An extradition treaty is an international agreement in
which the Requested State agrees, at the request of the
Requesting State and under specified conditions, to turn over
persons who are within its jurisdiction and who are charged
with crimes against, or are fugitives from, the Requesting
State. Extradition treaties can be bilateral or multilateral,
though until recently the United States showed little interest
in negotiating multilateral agreements dealing with
extradition.
The contents of recent treaties follow a standard format.
Article 1 sets forth the obligation of contracting states to
extradite to each other persons charged by the authorities of
the Requesting State with, or convicted of, an extraditable
offense. Article 2, sometimes referred to as a dual criminality
clause, defines extraditable offenses as offenses punishable in
both contracting states by prison terms of more than one year.
Attempts or conspiracies to commit an extraditable offense are
themselves extraditable. Several of the treaties provide that
neither party shall be required to extradite its own nationals.
The treaties carve out an exception to extraditable crimes for
political offenses. The trend in modern extradition treaties is
to narrow the political offense exceptions.
The treaties include a clause allowing the Requested State
to refuse extradition in cases where the offense is punishable
by death in the Requesting State, unless the Requesting State
provides assurances satisfactory to the Requested State that
the individual sought will not be executed.
In addition to these substantive provisions, the treaties
also contain standard procedural provisions. These specify the
kinds of information that must be submitted with an extradition
request, the language in which documents are to be submitted,
the procedures under which documents submitted are to be
received and admitted into evidence in the Requested State, the
procedures under which individuals shall be surrendered and
returned to the Requesting State, and other related matters.
B. major provisions
1. Extraditable offenses: The dual criminality clause
Article 2 contains a standard definition of what
constitutes an extraditable offense: an offense is extraditable
if it is punishable under the laws of both parties by a prison
term of at least one year. Attempts and conspiracies to commit
such offenses, and participation in the commission of such
offenses, are also extraditable. If the extradition request
involves a fugitive, it shall be granted only if the remaining
sentence to be served is more than six months.
The dual criminality clause means, for example, that an
offense is not extraditable if in the United States it
constitutes a crime punishable by imprisonment of more than one
year, but it is not a crime in the treaty partner or is a crime
punishable by a prison term of less than one year. In earlier
extradition treaties the definition of extraditable offenses
consisted of a list of specific categories of crimes. This
categorizing of crimes has resulted in problems when a specific
crime, for example drug dealing, is not on the list, and is
therefore not extraditable. The result has been that as
additional offenses become punishable under the laws of both
treaty partners the extradition treaties between them need to
be renegotiated or supplemented. A dual criminality clause
obviates the need to renegotiate or supplement a treaty when it
becomes necessary to broaden the definition of extraditable
offenses.
2. Extraterritorial offenses
In order to extradite individuals charged with extra
territorial crimes (offenses committed outside the territory of
the Requesting State) such as international drug traffickers
and terrorists, provision must be made in extradition treaties.
The Bolivia Treaty states that so long as the underlying
conduct is criminal in both contracting states, it is
irrelevant where the criminal acts were committed (art. 2
3(b)). While the meaning of this provision is not entirely
clear, it seems to be saying that for an extra territorial
crime to be extraditable it is only necessary that the laws of
the Requested State punish such a crime on its own territory,
but that it is not necessary that its laws punish such a crime
when committed outside its territory.
3. Political offense exception
In recent years the United States has been promoting a
restrictive view of the political offense exception in
furtherance of its campaign against terrorism, drug
trafficking, and money laundering. Though some of the treaties
considered by the Committee have taken a narrower view then
others of the political offense exception, all of them give it
a more limited scope than earlier U.S. extradition treaties. In
general, the political offense exception is a broad one in the
Bolivia Treaty.
The exclusion from the political offense exception for
crimes covered by multilateral international agreements, and
the obligation to extradite for such crimes or submit the case
to prosecution by the Requested State, is now a standard
exclusion and is contained in the proposed treaty. The
incorporation by reference of these multilateral agreements is
intended to assure that the offenses with which they deal shall
be extraditable under an extradition treaty. But, extradition
for such offenses is not guaranteed. A Requested State has the
option either to extradite or to submit the case to its
competent authorities for prosecution. For example, a Requested
state could refuse to extradite and instead declare that it
will itself prosecute the offender.
4. The death penalty exception
The United States and other countries appear to have
different views on capital punishment. Under the proposed
treaties, Bolivia may refuse extradition for an offense
punishable by the death penalty in the Requesting state if the
same offense is not punishable by the death penalty in the
Requested State, unless the Requesting State gives assurances
satisfactory to the Requested State that the death penalty will
not be imposed or carried out.
5. The extradition of nationals
The U.S. does not object to extraditing its own nationals
and has sought to negotiate treaties without nationality
restrictions. Many countries, however, refuse to extradite
their own nationals. U.S. extradition treaties take varying
positions on the nationality issue.
The Bolivia treaty moves substantially in the direction of
the U.S. position on the extradition of nationals (art. 3). It
provides that each party shall have discretion to deny
extradition of its own nationals except as to certain offenses
with respect to which extradition on the basis of nationality
cannot be refused. Such offenses include those as to which
there is an obligation to establish criminal jurisdiction under
multilateral international agreements in force between the
parties. In addition, extradition cannot be refused on the
basis of the criminal's nationality for offenses that include
murder, kidnapping, rape, drug-and terrorism-related offenses,
organized criminal activity, counterfeiting, and certain
others. Attempts or conspiracies to commit any of these
offenses by a national of the Requested State are also
extraditable.
6. Retroactivity
The proposed treaty states that it shall apply to offenses
committed before as well as after it enters into force (art.
17). These retroactivity provisions do not violate the
Constitution's prohibition against the enactment of ex post
facto laws which applies only to enactments making criminal
acts that were innocent when committed, not to the extradition
of a defendant for acts that were criminal when committed but
for which no extradition agreement existed at the time.
7. The rule of speciality
The rule of speciality (or specialty), which prohibits a
Requesting State from trying an extradited individual for an
offense other than the one for which he was extradited, is a
standard provision included in U.S. bilateral extradition
treaties, including the six under consideration. The Bolivia
Treaty (art. 12) contains exceptions to the rule of specialty
that are designed to allow a Requesting State some latitude in
prosecuting offenders for crimes other than those which they
had been specifically extradited.
8. Lapse of time
The Bolivia Treaty has no provision denying extradition if
barred by the statute of limitations of either the Requesting
or Requested State.
IV. Entry Into Force and Termination
A. ENTRY INTO FORCE
This Treaty shall enter into force upon the exchange of
instruments of ratification.
b. termination
This Treaty shall terminate six months after notice by a
Party of an intent to terminate the Treaty.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed treaty on Wednesday, July 17, 1996. The hearing
was chaired by Senator Helms. The Committee considered the
proposed treaty on July 24, 1996, and ordered the proposed
treaty favorably reported with one proviso by voice vote, with
the recommendation that the Senate give its advice and consent
to the ratification of the proposed treaty.
VI. Committee Comments
The Committee on Foreign Relations recommended favorably
the proposed treaty. The Committee believes that the proposed
treaty is in the interest of the United States and urges the
Senate to act promptly to give its advice and consent to
ratification. In 1996 and the years ahead, U.S. law enforcement
officers increasingly will be engaged in criminal
investigations that traverse international borders. Certainly,
sovereign relationships have always been important to
prosecution of suspected criminals. The first recorded
extradition treaty dates as far back as 1280 B.C. under Ramses
II, Pharaoh of Egypt. The United States entered into its first
extradition treaty in 1794 with Great Britain. Like these early
treaties, the basic premise of the treaties is to facilitate,
under specified conditions, the transfer of persons who are
within the jurisdiction of one nation, and who are charged with
crimes against, or are fugitives from, the nation requesting
extradition. Despite the long history of such bilateral
treaties, the Committee believes that these treaties are more
essential than ever to U.S. efforts to bring suspected
criminals to justice.
In 1995, 131 persons were extradited to the U.S. for
prosecution for crimes committed in the U.S., and the U.S.
extradited 79 individuals to other countries for prosecution.
After the Senate ratified an extradition treaty with Jordan in
1995, the U.S. Attorney General was able to take into custody
an alleged participant in the bombing of the World Trade
Center. His prosecution would not be possible without an
extradition treaty. Crimes such as terrorism, transshipment of
drugs by international cartels, and international banking fraud
are but some of the international crimes that pose serious
problems to U.S. law enforcement efforts. The Committee
believes that modern extradition treaties provide an important
law enforcement tool for combatting such crimes and will
advance the interests of the United States.
The proposed resolution of ratification includes a proviso
that reaffirms that ratification of this treaty does not
require or authorize legislation that is prohibited by the
Constitution of the United States. Bilateral extradition
treaties rely on relationships between sovereign countries with
unique legal systems. In as much as U.S. law is based on the
Constitution, this treaty may not require legislation
prohibited by the Constitution.
VII. Explanation of Proposed Treaty
The following is the Technical Analysis of the Extradition
Treaty submitted to the Committee on Foreign Relations by the
Departments of State and Justice prior to the Committee hearing
to consider pending extradition treaties.
technical analysis of the extradition treaty between the united states
of america and republic of bolivia
On June 27, 1995, at La Paz, Bolivia, the United States
signed a treaty on extradition with the Republic of Bolivia
(``the Treaty''). In recent years, the United States has signed
similar treaties with many other countries as part of ongoing
and highly successful efforts to modernize out international
law enforcement relations. The Treaty is intended to replace
the outdated treaty currently in force between the United
States and Bolivia, the Treaty of Extradition (``the 1900
Treaty''),\1\ with a modern agreement to facilitate the
extradition of serious offenders, including narcotics
traffickers, regardless of their nationality.
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\1\ Apr. 21, 1900, 32 Stat. 1857, T.S. 399, 5 Bevans 735.
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It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 18, United States Code, Section 3184 et seq. No new
implementing legislation will be needed.
The following technical analysis of the Treaty was prepared
by the United States delegation that conducted the
negotiations.
Article I--Agreement to extradite
This article, like the first article in every recent United
States extradition treaty, formally obligates each Party to
extradite to the other, pursuant to the provisions and
conditions of the Treaty, persons charged with or convicted of
extraditable offenses.
The phrase ``found guilty of, or sentenced for'' was used
instead of ``convicted'' because of peculiarities in United
States and Bolivian criminal procedure and in order to avoid
potential interpretation problems due to semantic differences.
In Bolivia, the terms ``convicted'' and ``sentenced'' are used
interchangeability, in part because a defendant cannot be found
guilty without being sentenced at the same time. On the other
hand, in the United States, a defendant who has been found
guilty ordinarily will not be sentenced until after a
presentence report has been prepared and considered by the
court.
The negotiators agreed that the term ``found guilty''
includes instances in which a defendant has been convicted but
a sentence has not yet been imposed. By including all three
terms (i.e., ``charged,'' ``found guilty,'' and ``sentenced''),
the negotiators intended to make it clear that the Treaty
applies not only to charged and sentenced persons, but also to
persons who are adjudged guilty and flee prior to
sentencing.\2\
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\2\ See Stanbrook and Stanbrook, Extradition: The Law and Practice
25-26 (1979).
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The article also refers to offenses ``in'' the Requesting
State rather than ``of'' the Requesting State, thereby
obligating Bolivia to extradite fugitives to the United States
for state and local prosecutions as well as federal cases.
Article II--Extraditable offenses
This article contains the basic guidelines for determining
what constitutes an extraditable offense. The Treaty, like
other recent United States extradition treaties, does not list
the offenses for which extradition may be granted.
Paragraph 1 permits extradition for any offense punishable
under the laws of both Parties by deprivation of liberty (i.e.,
imprisonment or other form of detention) for a maximum period
of more than one year, or by a more severe penalty such as
capital punishment. The term ``maximum'' was included to ensure
that with respect to offenses punishable by a range of years,
the Requested State will look only to the maximum potential
penalty in determining whether the offense meets the
requirement of being punishable by ``more than one year'' of
imprisonment.
During the negotiations, the Bolivian delegation stated
that key offenses such as drug trafficking and organized
criminal activity (RICO) are extraditable provided the
predicate offense is extraditable.
Defining extraditable offenses in terms of dual criminality
rather than attempting to list each extraditable crime obviates
the need to renegotiate the Treaty or supplement it if both
countries pass laws dealing with a new type of criminal
activity or if the list inadvertently fails to cover an
important type of criminal activity punishable in both
countries. For example, although money laundering is not a
crime in Bolivia at this time, according to the Bolivian
delegation, the Bolivian government currently is drafting
legislation to criminalize money laundering. Once this
legislation is passed by the Bolivian Congress, money
laundering will automatically be included as an extraditable
offense under the dual criminality provision without having to
amend the Treaty.
In order to ensure that extradition is not requested for
minor offenses, paragraph 2 requires that if the person whose
extradition is sought has already been sentenced in the
Requesting State, more than six months of that sentence must
remain to be served. Provisions of this kind are not
preferred,\3\ but they do appear in some United States
extradition treaties.\4\
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\3\ For example, recent United States extradition treaties with
Australia, Canada, Jamaica, New Zealand, and the United Kingdom contain
no such requirement.
\4\ See, e.g., U.S.-Italy Extradition Treaty, Oct. 13, 1983, art.
II(1), T.I.A.S. No. 10837.
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Paragraph 3 reflects the intention of both Parties to
interpret the principles of this article broadly. Paragraph
3(a) requires the Requested State to disregard differences in
the categorization of an offense in determining whether dual
criminality exists and to overlook mere differences in
terminology used to define the offense under the laws of each
Party. Paragraph 3(a) also states it shall be irrelevant
whether the laws of both Parties contain identical elements as
long as the underlying conduct is criminal in both
countries.\5\ Provisions similar to paragraph 3(a) are present
in most recent United States extradition treaties.
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\5\ See In re Extradition of Russell, 789 F.2d 801, 803 (9th Cir.
1986); United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995).
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Paragraph 3(b) states that extradition shall be granted for
an extraditable offense regardless of where the act or acts
constituting the offense were committed. Because United States
jurisprudence recognizes jurisdiction in our courts to
prosecute offenses committed outside the United States if the
crime was intended to, or did, have effects in this country, or
if the legislative history of the statute shows clear
Congressional intent to assert such jurisdiction,\6\ many
federal statutes criminalize acts committed wholly outside
United States territory. On the other hand, in Bolivia, the
government's ability to prosecute extraterritorial offenses is
much more limited, except when the offense was committed by a
Bolivian citizen.\7\ Therefore, paragraph 3(b) reflects
Bolivia's agreement to recognize United States jurisdiction to
prosecute offenses committed outside the United States. This
provision will greatly improve the ability of the United States
to obtain extradition for a number of offenses that frequently
are orchestrated from abroad, such as narcotics trafficking and
acts of terrorism.
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\6\ Restatement (Third) of the Foreign Relations Law of the United
States Sec. 402 (1987); Blakesley, United States Jurisdiction Over
Extraterritorial Crime, 73 J. Crim. L. and Criminology 1109 (1982).
\7\ Bolivia, like many countries whose jurisprudence is rooted in
the civil law tradition, recognizes broad jurisdiction based on the
nationality of the offender. In effect, Bolivian courts have
jurisdiction over virtually any offense committed by a Bolivian citizen
anywhere in the world. In this respect, this provision also is
beneficial to Bolivia in that it allows Bolivia to extradite from the
United States one of its citizens accused of committing a crime in a
third country, even though United States courts normally would not have
jurisdiction over a United States citizen who committed a crime under
similar circumstances.
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In addition, judges in foreign countries are often confused
by the fact that many United States federal statutes require
proof of certain elements (such as use of the mails or
interstate transportation) solely to establish jurisdiction in
United States federal courts. Because these judges know of no
similar requirement in their own criminal law, they
occasionally have denied on this basis the extradition of
fugitives sought by the United States on federal charges.
Therefore, paragraph 3(c) requires that such elements be
disregarded in applying the dual criminality principle. For
example, Bolivian authorities must treat United States mail
fraud charges \8\ in the same manner as fraud charges under
state laws, and must view the federal crime of interstate
transportation of stolen property \9\ in the same manner as
unlawful possession of stolen property.
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\8\ See 18 U.S.C. Sec. 1341.
\9\ See 18 U.S.C. Sec. 2314.
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Paragraph 4 follows the pattern of recent extradition
treaties in requiring that extradition be granted for
attempting or conspiring to commit, participating in the
commission of, or associating to commit an extraditable
offense. As conspiracy charges frequently are used in United
States criminal cases, particularly those involving complex
transnational criminal activity, it is especially important
that the Treaty be clear on this point. According to the
Bolivian delegation, Bolivia has no general conspiracy statute
similar to Title 18, United States Code, Section 371.\10\
Therefore, paragraph 2 creates an exception to the dual
criminality rule of paragraph 1 by expressly making conspiracy
an extraditable crime if the offense that was the object of the
conspiracy constitutes an extraditable offense. Paragraph 2
creates a similar exception for the Bolivian offense of illicit
association in the commission of an offense.
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\10\ The closest analogue seems to be the offense of ``illicit
association'' proscribed in article 132 of the Bolivian Penal Code,
which makes it an offense for at least four individuals to form an
association to participate in or plan a criminal offense.
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Paragraph 5 provides that when extradition has been granted
for an extraditable offense, it shall also be granted for any
other offense for which all of the requirements for extradition
are met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Bolivia agrees to extradite to the United States a fugitive
wanted for prosecution on a felony charge, the United States is
also permitted to obtain extradition for any misdemeanor
offenses charged, as long as those misdemeanors also are
recognized as criminal offenses in Bolivia. Thus, the Treaty
incorporates the recent United States extradition practice of
permitting extradition for misdemeanors when the fugitive's
extradition is granted for a more serious extraditable offense.
This practice is generally desirable from the standpoint of
both the fugitive and the Requesting State in that: (1) it
permits all charges against the fugitive to be disposed of more
quickly, either by facilitating plea agreements or trials while
evidence is available; and (2) it permits the possibility of
concurrent sentences. Similar provisions are found in many
recent United States extradition treaties.
Article III--Extradition of nationals
Some countries, including most countries in Latin America,
refuse to extradite their own nationals for trial or
punishment. Although Bolivia has no law that expressly
prohibits the extradition of Bolivian nationals, securing the
extradition of Bolivian citizens from Bolivia has been an
extremely difficult process for the United States. There is
strong public opposition in Bolivia to the extradition of
nationals, and the Bolivian government has had difficulty
finding the political will to extradite its citizens to the
United States. Despite numerous United States requests for the
extradition of Bolivians charged with crimes in the United
States, in recent times, the Bolivian government has approved
the extradition to the United States of only two Bolivian
citizens (in July, 1992, and in March, 1995).
The 1900 Treaty provides that neither Party shall be bound
to deliver up its own citizens. According to the Bolivian
delegation, Bolivian legislators, jurists and legal scholars
are divided in their interpretation of this provision. Some
argue that, while creating no obligation to extradite
nationals, the 1900 Treaty nevertheless allows extradition at
the discretion of the Requested State. Others maintain that the
provision precludes the extradition of nationals altogether.
Because the majority of United States fugitives in Bolivia
traditionally have been Bolivian citizens, the United States
delegation made clear at the outset of the negotiations that we
would not accept a treaty that does not guarantee the
extradition of serious offenders regardless of their
nationality. In response, the Bolivian delegation maintained
that a treaty that calls for the mandatory extradition of
Bolivian citizens in all cases would be politically impossible
for the Bolivian government to accept and would face certain
defeat in the Bolivian Congress's ratification process.
Ultimately, an agreement was reached on language satisfying the
objectives of both delegations.
This article obligates the Parties to extradite their own
nationals for numerous serious crimes, but permits the
Executive Authority of the Requested State to exercise
discretion concerning extradition of its citizens in some
cases.
Paragraph 1 sets forth the general rule that neither Party
shall be obligated to extradite its own nationals and
enumerates in subparagraphs (a), (b), and (c) offenses excepted
from the general rule for which extradition of nationals is
mandatory.
Paragraph 1(a) includes offenses for which both Parties
have an obligation to establish criminal jurisdiction pursuant
to a multilateral treaty. The conventions to which this clause
applies at present include the Convention on Offenses and
Certain Other Acts Committed on Board Aircraft; \11\ the
Convention for the Suppression of Unlawful Seizures of Aircraft
(Hijacking); \12\ the Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation (Sabotage);
\13\ the United Nations Convention Against the Illicit Traffic
in Narcotic Drugs and Psychotropic Substances; \14\ and the
Single Convention on Narcotic Drugs \15\ and the Amending
Protocol to the Single Convention.\16\
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\11\ Sept. 14, 1963, 20 U.S.T. 2941, T.I.A.S. No. 6768, 704
U.N.T.S. 219.
\12\ Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192.
\13\ Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570.
\14\ Dec. 20, 1988, T.I.A.S. No. --.
\15\ Mar. 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 U.N.T.S.
204.
\16\ Mar. 25, 1972, 26 U.S.T. 1439, T.I.A.S. No. 8118, 976 U.N.T.S.
3.
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Paragraph 1(b) lists a number of serious offenses for which
there is an obligation to extradite nationals, including
murder, kidnaping, aggravated assault, rape, sexual offenses
involving children, drug trafficking, terrorism, organized
crime offenses, major frauds and counterfeiting. Paragraph 1(b)
also includes any offenses not listed that are punishable by
both Parties by a maximum penalty of at least ten years of
imprisonment.\17\
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\17\ According to the Bolivian delegation, offenses punishable
under Bolivian law by a maximum penalty of at least ten years of
imprisonment include the following: perpetrating a disaster on a means
of transportation; rape; cattle stealing; treason; espionage; sabotage;
armed uprising against the security and sovereignty of the State;
attempts on the life of the President and other dignitaries of the
State; terrorism; genocide; murder; kidnaping; the manufacture,
trafficking, transportation, importation, distribution, or aggravated
use of controlled substances; bribery; and extortion.
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Paragraph 1(c) includes attempts and conspiracies to
commit, participation in, and illicit association in, the
commission of any of the offenses described in subparagraphs
(a) and (b).
Paragraph 2 provides that with respect to offenses not
covered in paragraph 1 (a), (b) or (c), the Executive Authority
of the Requested State shall have the power to extradite its
nationals, although it may refuse their extradition at its
discretion.
Paragraph 3 requires that if the Requested State refuses
extradition solely on the basis of nationality, that State must
submit the case to its authorities for prosecution if asked to
do so by the Requesting State.
Overall, the large class of offenses enumerated under
article III for which the extradition of nationals is mandatory
creates exceptions greater than the general rule of non-
obligatory extradition of nationals. This article establishes a
clear framework that enables the United States to obtain the
extradition of Bolivian citizens from Bolivia for numerous
serious offenses, including narcotics trafficking.
Under this article, the United States will continue to
extradite its nationals to Bolivia in accordance with
established United States policy favoring such
extraditions.\18\
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\18\ See generally Shearer, Extradition in International Law 110-14
(1970); 6 Whiteman, Digest of International Law 871-76 (1968). Our
policy of drawing no distinction between nationals of the United States
and nationals of other countries in extradition matters has been
underscored by Congress in legislation. Title 18, United States Code,
Section 3196 authorizes the Secretary of State to extradite United
States citizens pursuant to a treaty that permits but does not
expressly require surrender of citizens as long as the other
requirements of the treaty are met. 18 U.S.C. Sec. 3196.
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Article IV--Bases for discretionary denial of extradition
Paragraph 1 permits the Executive Authority of the
Requested State to refuse extradition when the offense for
which extradition is sought is punishable by death in the
Requesting State, unless the Requesting State provides
assurances that the person sought will not be executed. This
paragraph further provides that if the Requesting State gives
such assurances, the death penalty, if imposed, shall not be
carried out. The Bolivian delegation insisted on this provision
because Bolivia has abolished the death penalty. Similar
provisions are found in many recent United States extradition
treaties.\19\
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\19\ Similar provisions are present in recent United States
extradition treaties with the Bahamas, Germany, Ireland, Italy,
Jamaica, Jordan and Thailand.
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Paragraph 2 provides that the Requested State may refuse
extradition if the request relates to an offense under military
law that is not an offense under ordinary criminal law.\20\
This also is a common provision in United States extradition
treaties.
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\20\ An example of such an offense is desertion. Matter of the
Extradition of Suarez-Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
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Article V--Bases for non-discretionary denial of extradition
Paragraph 1 prohibits extradition for political offenses
and describes several categories of offenses that shall not be
considered political offenses. This is a common provision in
United States extradition treaties.
Paragraph 1(a) provides that the political offense
exception does not apply in cases involving a murder or other
willful crime against the ``person'' of a Head of State or a
member of the Head of State's family.
Paragraph 1(b) establishes that the political offense
exception does not apply to offenses for which both Parties
have the obligation to establish criminal jurisdiction pursuant
to a multilateral treaty. The conventions to which this clause
applies at present include: the Convention on Offenses and
Certain Other Acts Committed on Board Aircraft; the Convention
on the Suppression of Unlawful Seizures of Aircraft
(Hijacking); the Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation (Sabotage); the
United Nations Convention Against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances; and the Single
Convention on Narcotic Drugs and the Amending Protocol to the
Single Convention.\21\
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\21\ Supra n. 11-16.
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Paragraph 1(c) provides that the political offense
exception does not apply to conspiracy or attempt to commit, or
aiding and abetting in the commission or attempted commission
of, offenses in subparagraphs (a) and (b).
Paragraph 2 prohibits extradition if the person sought was
convicted or acquitted in the Requested State for the offense
for which extradition is requested; its language is similar to
provisions in many United States extradition treaties. This
paragraph permits extradition in situations in which the person
sought is charged with different offenses by each Party arising
out of the same basic transaction.
Paragraph 2 further makes clear that extradition shall not
be precluded by the fact that the Requested State's authorities
declined to prosecute the person sought, or instituted and
subsequently dismissed criminal proceedings against the person.
This provision was included because the decision of the
Requested State to forego prosecution, or to dismiss criminal
charges already filed, might be the result of a failure to
obtain sufficient evidence or to locate available witnesses for
trail, while the prosecution in the Requesting State might not
suffer from the same impediments. This provision should enhance
the ability of the Parties to extradite to the jurisdiction
that has the better chance of a successful prosecution.
Article VI--Transmission of extradition request and required documents
This article sets forth the appropriate means of
transmitting an extradition request and the required
documentation and evidence to be submitted in support thereof;
it contains language similar to provisions in recent United
States extradition treaties.
Paragarph 1 requires that all requests for extradition be
submitted through the diplomatic channel. Paragraph 2 outlines
the information that must accompany every request for
extradition under the Treaty. Paragraph 3 details the
additional information needed when the person is sought for
trail in the Requesting State. Depending upon whether the
United States or Bolivia is the Requesting State, paragraph 4
or 5 describes the information needed, in addition to the
requirements of paragraph 2, when the person sought has already
been convicted in the Requesting State.
Most of the items listed in paragraph 2 enable the
Requested State to determine quickly whether extradition is
permitted under the Treaty. For example, the ``description of
the facts of the offense'' and ``the text of the laws
describing the essential elements of, and punishment for, the
offense for which extradition is requested'' called for in
paragraphs 2 (b) and (c) enable the Requested State to
determine whether a lack of dual criminality exists to deny
extradition under article II. Other information, such as the
physical description and probable location of the person sought
as required under paragraph 2(a), assist the Requested State in
locating and apprehending the person sought.
Paragraph 3 requires that if the person sought is charged
with but not yet convicted of a crime, the Requesting State
must provide certified copies of the charging document and
warrant of arrest, along with ``such evidence as, in accordance
with the laws of the Requesting State, would be necessary to
justify the apprehension and commitment for trial of the person
sought.'' This is consistent with United States extradition
jurisprudence, which interprets this language to require
probable cause.\22\ The Bolivian delegation assured the United
States that under Bolivian law, the standard applied in
determining whether sufficient evidence exists to justify
extradition is quite similar to our probable cause
requirement.\23\
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\22\ Courts applying Title 18, United States Code, Section 3184
have long required probable cause for international extraditions.
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 476 comment b (1987).
\23\ Article 194 of the Bolivian Criminal Procedure Code requires a
showing of obvious and serious indications of guilt (``indicios
manifiestos y graves'') to permit extradition. According to the
Bolivian delegation, this standard is interpreted in light of
``reasonableness'' or ``common sense.''
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Paragraphs 4 and 5 describe the information needed in
addition to the requirements of paragraph 2 when the person
sought has already been convicted in the Requesting State.
Paragraph 4 applies when Bolivia is the Requesting State, and
paragraph 5 applies when the United States is the Requesting
State. The two paragraphs contain essentially the same
requirements, but were separated at the request of the Bolivian
delegation to avoid any confusion due to differences in
Bolivian and United States criminal procedure. For example,
paragraph 4 recognizes that when Bolivia is the Requesting
State and the person sought has been convicted, a copy of the
sentence always will be provided because a person cannot be
found guilty in Bolivia without being sentenced at the same
time. On the other hand, recognizing that a person in the
United States is first convicted and usually sentenced at a
subsequent date, paragraph 5 requires that the United States
provide a copy of the sentence only if the person sought has in
fact been sentenced. Both paragraphs make clear that once a
conviction has been obtained, no showing of probable cause is
required. In essence, the fact of conviction speaks for itself,
a position taken in recent United States court decisions even
without a specific treaty provision.\24\ The Requesting State
must provide only such evidence that establishes that the
person sought is the person to whom the conviction refers.
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\24\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
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Paragraph 6 states that if the person sought has been found
guilty in absentia, the documentation required for extradition
includes both proof of conviction and the same documentation
required under paragraph 3. Paragraph 6 is consistent with the
longstanding United States policy of requiring such
documentation before extraditing persons convicted in absentia.
Paragraph 7 provides for the submission of additional
information if the original request and supporting
documentation are viewed as insufficient by the Requested
State. This paragraph is intended to allow the Requesting State
the opportunity to cure in the request and supporting materials
any deficiencies found by the Requested State, which may set a
time limit for receipt of the additional information. This
paragraph is similar to provisions in other recent United
States extradition treaties.
Article VII--Certification, authentication, and translation
Paragraph 1 governs the authentication procedures for the
documentation accompanying an extradition request. It provides
that the documents shall be accepted as evidence if certified
and authenticated by the principal diplomatic or consular
officer of the Requested State resident in the Requesting
State.\25\ In addition, in the case of a request from the
United States, the documents must be certified by the
Department of State; in the case of a request from Bolivia, the
documents must be authenticated by the Ministry of Foreign
Affairs and Worship.
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\25\ This provision is consistent with requirements imposed by
United States law. See 18 U.S.C. Sec. 3190.
---------------------------------------------------------------------------
Paragrpah 2 is a standard treaty provision that requires
that all documents submitted in the support of an extradition
request be translated into the language of the Requested State.
Thus, requests from Bolivia to the United States must be
translated into English, and United States requests to Bolivia
must be translated into Spanish. Paragraph 2 also makes clear
that such translation is at the expense of the Requesting
State.
Article VIII--Provisional arrest
This article describes the process by which a person in the
Requested State may be arrested and detained while the formal
extradition papers are being prepared in the Requesting State.
Paragraph 1 provides that provisional arrest is reserved
for cases of urgency and such requests shall be transmitted
through the diplomatic channel.
Paragrpah 2 sets forth the information that the Requesting
State must provide in support of a provisional arrest request.
Paragraph 3 requires the Requested State promptly to notify
the Requesting State of the disposition of the request and any
reasons for its denial.
Paragraph 4 provides that an individual who has been
provisionally arrested may be released from custody if the
documents are not received by the Requested State within 60
days from the date of provisional arrest. In such cases, the
individual may be taken into custody again and the extradition
proceedings may be recommenced if the formal request is
received at a later date.
Article IX--Decision regarding the request
This article requires that the Requested State promptly
notify the Requesting State of its decision on the extradition
request.
If extradition is denied, in whole or in part, the
Requested State must provide a reasoned explanation for the
denial and a copy of the pertinent decision by its authorities.
If extradition is granted, the Parties shall agree on the date
and place of the surrender of the person sought. However, if
the Requesting State does not remove the person sought within
the time period set by the law of the Requested State, the
Requested State may release the person from custody and may
subsequently deny an extradition request for the same offense.
United States law requires that such surrender occur within two
calendar months of a finding that the person is
extraditable,\26\ or of the conclusion of any litigation
challenging that finding,\27\ whichever is later. According to
the Bolivian delegation, Bolivian law does not specify the time
in which a surrender must take place.\28\
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\26\ 18 U.S.C. Sec. 3188.
\27\ See Jimenez v. U.S. District Court, 84 S. Ct. 14, 11 L.Ed.2d
30 (1963) (decided by Golberg, J., in chambers), Liberto v. Emery, 724
F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 (5th Cir.
1983); see also Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
\28\ Therefore, the parenthetical ``if any'' was added to the text
of this article in reference to the laws of the Requested State.
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Article X--Competing requests
This article sets forth the factors the Requested State
shall consider in determining to which country to surrender a
person whose extradition was requested by the other Party and
one or more other countries. For the United States, the
Executive Authority make this decision by taking into account
all relevant factors.\29\ For Bolivia, the decision is made by
the competent judicial authority.\30\
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\29\ Under United States law, the appropriate authority within the
executive branch is the Secretary of State. Cheng Na-Yuet v. Hueston,
734 F. Supp. 988 (S.D. Fla. 1990), aff'd, 932 F.2d 977 (11th Cir.
1991).
\30\ The Bolivian delegation maintained that under Bolivian law,
the judicial branch, not the executive, is the competent authority to
make this decision. The Bolivian delegation also requested that in
cases in which Bolivia is the Requested State, this article set forth a
detailed framework of factors to be considered.
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Article XI--Conditional and deferred surrender
A person sought for extradition could be facing prosecution
or serving a sentence in the Requested State for offenses other
that those for which extradition is requested. This article
provides a means for the Requested State to temporarily
surrender the person sought to the Requesting State or, in the
alternative, to defer extradition until the conclusion of local
proceedings against the person and the service of any
punishment imposed. Similar provisions are present in recent
United States extradition treaties.
Paragraph 1 provides for temporary surrender of a person
sought for prosecution in the Requesting State who is being
prosecuted or is serving a sentence in the Requested State. A
person temporarily transferred pursuant to this article is kept
in custody while in the Requesting State, and is returned to
the Requested State at the conclusion of the proceedings in the
Requesting State. Such temporary surrender furthers the
interests of justice in that it permits trial of the person
sought while evidence and witnesses are more likely to be
available, thereby increasing the likelihood of conviction.
Such transfer might also be advantageous to the person sought
in that: (1) it permits resolution of the charges sooner; (2)
it makes it possible for any sentence to be served in the
Requesting State concurrently with the sentence in the
Requested State; and (3) it permits defense against the charges
while favorable evidence is fresh and more likely to be
available.
Paragraph 2 provides that the Requested State may postpone
the surrender of a person who is being prosecuted or serving a
sentence in the Requested State until the conclusion of the
prosecution or the full execution of any punishment
imposed.\31\
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\31\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. Mass.
1990), aff'd, 931 F. 2d 169 (1st Cir. 1991).
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Article XII--Rule of specialty
This article covers the rule of specialty, a standard
principle of United States extradition law and practice.
Designed to ensure that a fugitive surrendered for one offense
is not tried for other crimes, the rule of specialty prevents a
request for extradition from being used as a subterfuge to
obtain custody of a person for trial or service of a sentence
on different charges that are not extraditable under the Treaty
or not properly documented in the request.
Exceptions to the rule have developed over the years. This
article codifies the current formulation of the rule by
providing that a person extradited under the Treaty may not be
detained, tried, convicted or punished in the Requesting State
for an offense committed prior to surrender except with respect
to: (1) an offense for which extradition was granted; (2) a
differently denominated offense that nonetheless is based on
the same facts as the offense for which extradition was
granted; and (3) any other offense for which the Requested
State gives consent.\32\ Paragraph 1(c)(2) provides that in
cases in which such consent is sought, the Requested State may:
(1) require the submission of supporting documentation as set
forth in article VI; and (2) detain the person for 90 days, or
such longer period of time as the Requested State may
authorize, while the request for consent is being processed.
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\32\ In the United States, the Secretary of State has the authority
to consent to a waiver of the rule of specialty. See Berenguer v.
Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
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Paragraph 2 prohibits the Requesting State from
surrendering an extraditee to a third state for a crime
committed prior to extradition under the Treaty without the
consent of the Requested State.\33\
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\33\ A similar provision is contained in all recent United States
extradition treaties.
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Paragraph 3 permits the detention, trial or punishment of
an extraditee for additional offenses, or the extradition of
that person to a third state, if the extraditee (1) leaves the
Requesting State and voluntarily returns to it; or (2) does not
leave the Requesting State within 30 days of being free to do
so.\34\
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\34\ The policy behind paragraph 3 is that an extraditee should not
be allowed to benefit from the rule of specialty indefinitely by
remaining in or returning to the Requesting State with impunity. Under
this paragraph, if the extraditee chooses to return to or remain in the
Requesting State, the extraditee effectively ``waives'' the benefits of
the rule. Generally, we prefer that the time period afforded the person
to leave the Requesting State be as short as practicable, e.g., 10 or
15 days, to avoid frustration by law enforcement and the public from
having such a person at large in the community. The Bolivian
delegation, however, requested a period of at least 30 days in order to
allow an extraditee the opportunity to obtain necessary travel
documents and to get personal and/or business affairs in order.
Although 30 days is longer than we generally prefer, equivalent and
longer time limits are not uncommon in recent United States extradition
treaties.
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Article XIII--Waiver of extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings in order to expedite
their return to a Requesting State. This article provides that
when a person sought consents to surrender to the Requesting
State, the person may be returned to the Requesting State as
expeditiously as possible without further proceedings. Such
consent must be given before a judicial authority of the
Requested State.
The delegations agreed that in such cases there is no need
for the formal documents described in article VI or any further
judicial or administrative proceedings.
When a person sought elects to return voluntarily to the
Requesting State under this article, the process is not deemed
an ``extradition''; therefore, the rule of specialty does not
apply.
Article XIV--Seizure and surrender of property
This article provides that to the extent permitted by the
law of the Requested State, any assets, objects of value, or
documents relating to the offense (whether proceeds,
instrumentalities, or other relevant evidence) shall be
surrendered to the Requesting State upon the granting of the
extradition. Article XIV further provides that surrender of
these items shall occur even if extradition cannot be effected
due to the death or disappearance of the person sought.
The obligation to surrender property under this provision
is subject to due respect for the rights of third parties in
the property.
Article XV--Transit
Paragraph 1 gives each Party the power to authorize transit
through its territory of persons being surrendered to the other
Party by a third state.\35\ Requests for transit under this
article are to be transmitted through the diplomatic channel
and must contain a description of the person being transported
and a brief statement of the facts of the case upon which the
surrender is based.
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\35\ A similar provision is present in all recent United States
extradition treaties.
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Paragraph 2 requires that a Party shall respond promptly to
transit requests, but allows a Party to refuse permission for
transit if such transit would compromise its essential
interests.
Paragraph 3 states that no authorization is needed when air
transportation is being used and no landing is scheduled in the
territory of the other Part. If an unscheduled landing occurs
in the territory of a Party, that Party may require a request
as provided for in paragraph 1. In such a case, the person in
transit shall be kept in custody for up to 96 hours until a
request for transit and thereafter until transit is effected.
Article XVI--Representation, consultation, and expenses
Paragraph 1 compels the competent authorities of the
Requested State, by all legal means within their power, to
advise, assist and represent the interests of the Requesting
State in connection with the processing of extradition requests
in the Requested State.
Paragraph 2 provides that the Parties shall consult with
each other with regard to individual extradition cases and
extradition procedures in general.
Paragraph 3 requires the Requesting State to bear expenses
of extradition relating to the translation of documents and the
transportation of the person sought to the Requesting State.
Paragraph 4 provides that neither Party shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination or surrender of the person sought. This includes
any claim by the person for damages or reimbursement of legal
fees or other expenses occasioned by the execution of the
extraction request.
In paragraph 1, the phrase ``by all legal means within
their power'' was included because the law and practice of the
United States and Bolivia are quite different on this issue. In
accordance with established practice, the United States will
represent Bolivia before the courts of this country in
connection with Bolivian extradition requests. According to the
Bolivian delegation, however, Bolivian law and practice
prohibit the Bolivian executive branch from intervening in an
extradition proceeding once the case has been submitted to the
Bolivian judiciary. Under Bolivian law, every foreign
extradition request is submitted directly to the Bolivian
Supreme Court, which reviews the request and supporting
documentation and ultimately issues a decision approving or
denying the request. Basically, the extradition case is decided
without oral argument or personal appearances by the parties in
court. The only Bolivian official who becomes involved in the
proceedings is the Bolivian Attorney General, who makes a
written recommendation to the court that the request either be
approved or denied. In the Bolivian legal system, however, the
Attorney General is not part of the executive branch of
government. The Attorney General is an independent authority
within the judicial branch who represents only the interests of
the ``Bolivian people.'' The Attorney General does not
represent the Requesting State and cannot be compelled to argue
for extradition if the Attorney General believes that the court
should deny the request. The Bolivian delegation also indicated
that at this time, there is no possibility Bolivia will modify
this aspect of its internal procedure.
The Bolivian delegation did agree, however, that in certain
ways the Bolivian executive branch can expand its role in the
extradition process to better represent the interests of the
United States. The types of assistance that the Bolivian
delegation agreed to provide are outlined in a pair of
diplomatic notes exchanged when the Treaty was signed. The
Bolivian government agreed therein that the Ministry of Foreign
Affairs will conduct a substantive review of documents
submitted with extradition requests for the purpose of
assessing compliance with Bolivian evidentiary and other legal
requirements, and will advise the United States on any need for
revision or supplementation of documents. Therefore, in
conjunction with the Ministry of Justice, the Ministry of
Foreign Affairs will prepare a written opinion or declaration
regarding whether the offenses named in a request are
extraditable, whether the request and supporting documentation
are properly certified or authenticated for admission into
evidence, and whether extradition is appropriate under the
Treaty. The Ministry will then submit this opinion or
declaration to the Bolivian Supreme Court when it files the
extradition request and supporting documentation with the
court.
The Bolivian delegation indicated that in certain cases the
hiring of private counsel by the United States might be
necessary to respond to legal briefs and motions filed by
defense counsel. In this regard, the Bolivian delegation stated
that the Ministry of Foreign Affairs will follow up and report
on the progress of extradition cases, and will advise the
United States on the need to hire private counsel in those
cases in which exceptional advocacy is deemed necessary.
Overall, this article will improve the handling in Bolivia
of United States extradition requests. By expanding the role of
the Bolivian executive branch in the extradition process and by
increasing communication between our two governments, the
ability of the United States to secure extraditions from
Bolivia will be enhanced.
Article XVII--Application
This article, like its counterparts in most other United
States extradition treaties negotiated in the past two decades,
expressly makes the Treaty retroactive to cover offenses that
occurred before the Treaty enters into force, provided they
were offenses under the laws of both Parties at the time they
were committed.
In addition, this article expressly states that the Treaty
applies to extradition requests pending at the time it enters
into force for which a final decision has not yet been
rendered.
Article XVIII--Final provisions (ratification, entry into force, and
termination)
Paragraph 1 contains standard treaty language providing for
ratification of the Treaty and exchange of the instruments of
ratification at Washington, D.C. as soon as possible. The
Treaty will enter into force immediately upon the exchange.
Paragraph 2 provides that the 1900 Treaty, which is
currently in force, shall become null and void upon the entry
into force of this Treaty.
Paragraph 3 contains standard treaty language for the
termination of the Treaty by either Party through written
notice to the other Party. Termination shall become effective
six months after the date of such notice.
VIII. Text of the Resolution of Ratification
Resolved (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of The Extradition Treaty Between the Government
of the United States of America and the Government of the
Republic of Bolivia, signed at La Paz on June 27, 1995. The
Senate's advice and consent is subject to the following
proviso, which shall not be included in the instrument of
ratification to be signed by the President:
Nothing in the Treaty requires or authorizes
legislation or other action by the United States of
America that is prohibited by the Constitution of the
United States as interpreted by the United States.