[Senate Executive Report 104-32]
[From the U.S. Government Publishing Office]
104th Congress Exec. Rept.
SENATE
2d Session 104-32
_______________________________________________________________________
EXTRADITION TREATY WITH SWITZERLAND
_______
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. 104-9]
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 Swiss
Confederation, signed at Washington on November 14, 1990,
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 November 14, 1990, the President signed an extradition
treaty with Switzerland. The Treaty was transmitted to the
Senate for its advice and consent to ratification on June 12,
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 an 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
extraterritorial 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 Switzerland Treaty states that the
Requested State shall grant extradition for an offense
committed outside the Requesting State's territory if the
Requested State's laws provide that an offense committed
outside its territory is punishable in similar circumstances
(art. 1(2)). Even if the Requested State does not punish
offenses committed outside its territory in similar
circumstances, the Switzerland treaty requires the Requested
State to grant extradition in the case of an extraterritorial
crime if either the fugitive or the victim is a national of the
Requesting State (art. 1(2b)).
In the proposed treaty an obligation to extradite depends
mostly on whether the Requested State also punishes offenses
outside its territory ``in similar circumstances.'' This, in
effect, appears to be a dual criminality clause applied to
extraterritorial offenses. The phrase ``in similar
circumstances'' is undefined in each of the treaties that have
such a requirement and in the Letters of Submittal from the
Department of State to the President. The phrase appears to be
sufficiently vague to give a reluctant Requested State ``wiggle
room'' to avoid its possible obligation to extradite
individuals for crimes 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. The political offense
exception in the Switzerland Treaty is a broader provision than
is contained in other extradition treaties.
Generally, the standard offense not considered political--a
criminal attack on a head of state or members of his family is
included in this provision. The Switzerland Treaty does not
contain exclude this offense. The exclusion of certain violent
crimes (i.e. murder, kidnapping, and others) from the political
offense exception has become standard in many U.S. extradition
treaties, including this one, reflecting the concern of the
United States government and certain other governments with
international terrorism.
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. While the United States is
a party to all the multilateral agreements listed in the
introduction, Switzerland has been less inclined to participate
in such agreements. For example, as of January 1, 1995,
Switzerland was not a party to the 1972 Protocol Amending the
Single Convention on Narcotic Drugs of 1961, nor to the United
Nations Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances.\1\
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\1\ Department of State, ``Treaties in Force on January 1, 1995,''
391.
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The Switzerland Treaty is distinguished primarily for
granting a Requested State discretion to deny extradition for
violations of ``currency policy, trade policy, or economic
policy,'' or acts ``intended exclusively to reduce taxes or
duties'' (art. 3(3)). According to the Secretary of State's
Letter of Submittal, this provision was included in the treaty
at Swiss behest because Swiss law for the most part prohibits
extradition for purely fiscal or tax offenses.\2\ The Letter of
Submittal also states, in what appears to be an expression of
hope, that ``[T]his provision would not be used to shield from
extradition underlying criminal conduct, such as fraud,
embezzlement, or falsification of public documents, if that
conduct is otherwise extraditable.'' No similar statement
appears in the treaty itself.
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\2\ Letter of Submittal dated May 1, 1995, from Secretary of State
Warren Christopher to President Clinton.
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4. The death penalty exception
The United States and other countries appear to have
different views on capital punishment. Under the proposed
treaties, the Requested State 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 Switzerland Treaty provides that the Requested State
may not decline to extradite its own nationals unless it has
jurisdiction to prosecute them for the acts for which
extradition is sought (art. 8). For example, if a Swiss
national commits a murder in the United States and then flees
to Switzerland, he would be extraditable by the United States
under the treaty despite his Swiss nationality unless
Switzerland has jurisdiction to prosecute its nationals for
murders committed outside its treaty.
6. Retroactivity
The proposed treaty states that it shall apply to offenses
committed before as well as after it enters into force (art.
22). 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
Switzerland Treaty (art. 13) contains exceptions to the rule of
speciality that are designed to allow a Requesting State some
latitude in prosecuting offenders for crimes other than those
for which they had been specifically extradited.
8. Lapse of time
The Switzerland 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 180 days after the
exchange of instruments of ratification.
b. termination
This Treaty may be terminated by either Party five years
from the date of entry into force, after six months notice by a
Party that it intends 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, Pharoah 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 combating 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 switzerland
On November 11, 1990, the United States signed a treaty on
extradition with the Swiss Confederation (``the Treaty''). In
recent years, the United States has signed similar treaties
with many other countries as part of an ongoing effort to
modernize our law enforcement relations. The Treaty is intended
to replace the extradition treaty currently in force between
the United States and Switzerland \3\ and the two supplementary
extradition conventions to that treaty.\4\
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\3\ May 14, 1900, 31 Stat. 1928, T.S. 354, 11 Bevans 904.
\4\ Jan. 10, 1935, 49 Stat. 3192, T.S. 889, 11 Bevans 924; Jan. 31,
1940, 55 Stat. 1140, T.S. 969, 11 Bevans 938.
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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. Switzerland has its
own internal extradition legislation \5\ that will apply to
United States requests under the Treaty.
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\5\ See Swiss Federal Act on International Mutual Assistance in
Criminal Matters of March 20, 1981 (``I.M.A.C.''). The key sections of
Swiss law that are germane to the interpretation and implementation of
the Treaty are discussed in more detail in this technical analysis.
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The following technical analysis of the Treaty was prepared
by the United States delegation that conducted the
negotiations.
Article 1--Obligation to extradite
This article, like the first article in every recent United
States extradition treaty, formally obligates each Contracting
Party to extradite to the other pursuant to the provisions of
the Treaty persons charged with or found guilty of an
extraditable offense, or subject to a detention order in the
Requesting State. The term ``found guilty'' was used instead of
``convicted'' because in Switzerland, a person is not
considered convicted until a sentence has been imposed, whereas
in the United States, a sentence is ordinarily not imposed on a
convicted person until after a presentence report has been
prepared and reviewed. The negotiators intended to make it
clear that the Treaty applies to persons who have been adjudged
guilty but flee prior to sentencing.\6\
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\6\ See Stanbrook and Stanbrook, ``Extradition: The Law and
Practice'' 25-26 (1979).
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Paragraph 2 deals with the fact that many federal crimes
involved acts committed wholly outside of United States
territory. Our jurisprudence recognizes the jurisdiction of our
courts to hear criminal cases involving offenses committed
outside of 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.\7\ Therefore, paragraph 2(a) requires
the extradition of persons sought for offenses which took place
outside the territory of the Requesting State if the Requested
State would possess extraterritorial jurisdiction in similar
circumstances. There are similar provisions in many recent
United States extradition treaties.\8\ This provision will
greatly improve the ability of the United States to obtain
extradition for serious crimes such as narcotics trafficking
and terrorism.
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\7\ Restatement (Third) of the Foreign Relations of Law of the
United States Sec. 402 (1987); Blakesley, ``United States Jurisdiction
over Extraterritorial Crime,'' 73 J. Crim. L. & Criminology 1109
(1982).
\8\ See, e.g., U.S.-Sweden Supplementary Extradition Convention,
Mar. 14, 1983, art. IV, T.I.A.S. No. 10812; U.S.-Netherlands
Extradition Treaty, June 24, 1980, art. 2(3), T.I.A.S. No. 10733; U.S.-
Jamaica Extradition Treaty, June 14, 1983, art. I(2), T.I.A.S. No.--;
U.S.-Thailand Extradition Treaty, Dec. 14, 1983, art. 1(2), T.I.A.S.
No. --.
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Paragraph 2(b) deals with two other circumstances in which
the Requested State must surrender offenders sought for
extraditable offenses which occurred outside of the territory
of the Requesting State. The first portion of paragraph 2(b)
provides for extradition of a person wanted for an
extraterritorial offense if the offender is a national of the
Requesting State. This provision is especially important to
Switzerland, where the courts have jurisdiction to prosecute
Swiss citizens for offenses committed outside of Swiss
territory.\9\ A similar provision is found in many recent
United States extradition treaties.\10\
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\9\ See STGB, C.P. COD. PEN., Swiss Federal Criminal Code, art. 6.
\10\ See, e.g., U.S.-Sweden Supplementary Convention on
Extradition, Mar. 14, 1983, art. IV(1)(b), T.I.A.S. No. 10812; U.S.-
Netherlands Extradition Treaty, June 24, 1980, art. 2(3), T.I.A.S. No.
10733; U.S.-Mexico Extradition Treaty, May 4, 1978, art. 1(2)9b), 31
U.S.T. 5059, T.I.A.S. No. 9656; U.S.-Italy Extradition Treaty, Oct. 13,
1983, art. III, T.I.A.S. No. 10837; U.S.-Japan Extradition Treaty, Mar.
3, 1978, art. VI(1), 31 U.S.T. 892, T.I.A.S. No. 9625, 1203 U.N.T.S.
225.
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The second portion of paragraph 2(b) provides for
extradition of a person wanted for an extraterritorial offense
if the offense was committed against a national of the
Requesting State. The clause was requested by the Swiss because
Swiss law provides for jurisdiction over crimes committed
against Swiss nationals outside of Switzerland.\11\ This clause
is unusual, and, in fact, none of the other United States
extradition treaties contains similar language.
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\11\ See STGB, C.P., COD. PEN., Swiss Federal Criminal Code, art.
5. It is not anticipated that this clause will be invoked often, for
Switzerland rarely seeks to exercise authority under this statute.
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The United States has traditionally opposed such passive
personality jurisdiction in most cases because if may unfairly
expose Americans to foreign criminal liability for actions
which are lawful where they take place, expose them to double
jeopardy, constitute unfair surprise as to the possibility of
prosecution and the maximum punishment in the country of the
victim's nationality, or conflict with other, more secure bases
of jurisdiction such as territoriality (the place of the
offense).
The Swiss government specifically requested this provision
in the Treaty. Under the unique circumstances set forth by the
Swiss, the United States decided that the provision is
acceptable without compromising United States interests. First,
Swiss law permits prosecution based on passive personality only
when an offense is criminal under the laws of the country where
an activity takes place and only permits punishment to the
extent authorized by the law of the territorial state. This
addresses the fairness and unfair surprise concerns. Second,
the Treaty precludes transfers for acts for which a person was
already been convicted or acquitted (``non bis in idem''), and
Swiss law does not permit duplicative prosecutions based upon
passive personality. This addresses the double jeopardy
concern. Third, under the Treaty, the United States may and
will deny extradition if we have criminal jurisdiction over the
offender, or decide to honor the extradition request of another
country based upon such factors as the nationality of the
offender or the site of the crime. This addresses the concern
that passive personality is less broadly acceptable basis of
jurisdiction that territoriality or nationality. Thus, in
accepting this provision, the United States government does not
intend it to represent a shift in the traditional United States
antipathy to such clauses. We have informed the Swiss
government of the basis for our acceptance of this provision,
and our anticipation that it will be rarely invoked.
Article 2--Extraditable offenses
This article contains the basic guidelines for determining
what are extraditable offenses. The Treaty, like the recent
United States extradition treaties with Jamaica, Italy,
Ireland, Thailand, Sweden (Supplementary Convention), and Costa
Rica, does not list the offenses for which extradition may be
granted. Instead, paragraph 1 permits extradition for any
offense punishable under the laws of both Contracting Parties
by deprivation of liberty (i.e., imprisonment or other form of
detention) for more than one year or by a more severe penalty
such as capital punishment. Defining extraditable offenses in
this manner obviates the need to renegotiate the Treaty or
supplement it if both Contracting Parties pass laws dealing
with a new type of criminal activity or if the list
inadventently fails to cover an important type of criminal
activity punishable by both Contracting Parties.
In order to ensure that extradition is not requested for
minor offenses, paragraph 1 requires that if the person has
already been sentenced, the person must have at least six
months of that sentence still to serve. Provisions of this kind
are not preferred,\12\ but they do appear in some United States
extradition treaties.\13\
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\12\ For example, recent United States extradition treaties with
Australia, Canada, Jamaica, New Zealand, and the United Kingdom contain
no such requirement.
\13\ 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 2 reflects the intention of both Contracting
Parties to interpret the principles of this article broadly.
Judges in foreign courts 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 foreign judges know of no
similar requirement in their own criminal law, they
occasionally have denied the extradition of fugitives sought by
the United States on federal charges on this basis. This
paragraph requires that such elements he disregarded in
applying the dual criminality principle. For example, Swiss
authorities must treat United States mail fraud charges \14\ in
the same manner as fraud charges under state laws and must view
the federal crime of interstate transportation of stolen
property \15\ in the same manner as unlawful possession of
stolen property. This paragraph also requires a Requested State
to disregard differences in the categorization of the offense
in determining whether dual criminality exists and to overlook
mere differences in the terminology used to define the offense
under the laws of each Contracting Party. A similar provision
is contained in all recent United States extradition treaties.
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\14\ See 18 U.S.C. Sec. 1341.
\15\ See 18 U.S.C. Sec. 2314.
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Paragraph 3 follows the pattern of recent extradition
treaties of providing that extradition should also be granted
for attempting to commit, or otherwise participating in, an
extraditable offense, and for conspiring to commit an offense
if the underlying criminal activity would also be a violation
of law. Conspiracy charges are frequently used in United States
criminal cases, particularly those involving complex
transnational criminal activity, so it is especially important
that the treaty be clear on this point. Switzerland has no
general conspiracy statute like Title 18, United States Code,
Section 371, so paragraph 3 makes it clear that conspiracy is
an extraditable crime if the underlying criminal activity
passes the dual criminality test of paragraph 1 (i.e., whenever
the offender conspired to commit an act punishable in both the
Requesting and Requested State by deprivation of liberty for
more than one year or a more severe penalty). It also makes
extraditable acts in preparation of homicide, aggravated
assault, robbery, arson, hostage-taking and kidnapping under
the laws of Switzerland.\16\ Thus, most Swiss and United States
inchoate crimes and accessorial conduct will be covered by the
Treaty.
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\16\ See STGB, C.P., COD. PEN., Swiss Federal Criminal Code, art.
260 bis.
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Paragraph 4 states that when extradition has been granted
for an extraditable offense, it shall also be granted for any
other offense punishable by the laws of both Contracting
Parties regardless of the requirement as to length of sentence.
For example, if Switzerland agrees to extradite to the United
States a fugitive wanted for prosecution on a felony charge,
the United States will also be permitted to obtain extradition
for any misdemeanor offenses charged, as long as those
misdemeanors would also be recognized as criminal offenses in
Switzerland. Thus, the Treaty incorporates recent United States
extradition practice by permitting extradition for misdemeanors
committed by a fugitive when the fugitive's extradition is
granted for a more serious extradition offense. This practice
is generally desirable from the standpoint of both the fugitive
and the prosecuting country in that it permits all charges
against the fugitive to be disposed of more quickly, thereby
facilitating trials while evidence is still fresh and
permitting the possibility of concurrent sentences. Similar
provisions are found in recent extradition treaties with
Australia, Ireland, Italy, and Costa Rica.
The Treaty, like all of our recently negotiated extradition
treaties, makes the kidnapping of one's own child in violation
of local law (``parental child abduction'') an extraditable
offense, provided the conditions of the Treaty, including dual
criminality, are met. Thus, under the Treaty, there will be the
possibility of extradition requests being made while child
custody is being addressed under civil or domestic relations
procedures, including the Convention on the Civil Aspects of
International Child Abduction, done at the Hague October 25,
1980, which is in force for both the United States and
Switzerland (``Hague Convention'').
The policy of the United States government, as reflected in
the sense of Congress regarding the 1993 International Parental
Kidnapping Crime Act which created the federal offense, is that
Hague Convention procedures ``in circumstances in which they
are applicable, should be the option of first choice for a
parent who seeks the return of a child.'' President Clinton
reiterated this view in his signing statement in connection
with the law. Consequently, although the federal offense was
intended to serve as a basis for international extradition,
prosecutors must remain aware that extradition procedures do
not necessarily result in the return of the child. Given
concerns for the welfare of an abducted child, it is essential
that the prosecutor and the left-behind parent consider
carefully the impact of a criminal prosecution on the welfare
of an abducted child. In some cases, it will be desirable to
delay extradition proceedings until after the child has been
returned to the appropriate parent or custodian or to the
child's place of habitual residence.
In consultations in connection with the Treaty, the
Contracting Parties concurred that civil measures or
proceedings, including Hague Convention proceedings, are the
preferred means to accomplish the return of a child following a
parental child abduction. In the consultations, the delegations
did not rule out criminal prosecutions if the civil proceedings
were unsuccessful or in other appropriate cases. In addition,
the consultations reflected that both Contracting Parties were
sensitive to the fact that prior to making any extradition
request, and more particularly in these cases, efforts should
be made to ensure that the request is backed by a legitimate
law enforcement interest in the prosecution of the case.
Article 3--Political, fiscal, and military offenses
Paragraph 1 prohibits extradition if the act for which
extradition is requested constitutes a political offense. This
is similar to political offense provisions in many modern
United States extradition treaties.
Paragraph 1 also provides that the Requested State shall
deny extradition if the request was politically motivated.\17\
In the United States the longstanding law and practice has been
that the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\18\
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\17\ Similar provisions appear in many United States extradition
treaties. See, e.g., U.S.-Jamaica Extradition Treaty, June 14, 1983,
art. III(3), T.I.A.S. No.--; U.S.-Netherlands Extradition Treaty, June
24, 1980, art. 4, T.I.A.S. No. 10733; U.S.-Ireland Extradition Treaty,
July 13, 1983, art. IV(c), T.I.A.S. No. 10813; U.S.-Spain Extradition
Treaty, May 29, 1970, art. 5(4), 22 U.S.T. 737, T.I.A.S. No. 7136, 796
UNTS 245.
\18\ See Eain v. Wilkes, 641 F.2d 504, 513-18 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotas v. Roche. 740 F. Supp. 904 (D.
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
Paragraph 2 states that the political offense exception
shall not apply to offenses included in a multilateral treaty,
convention, or agreement to which both Switzerland and the
United States are parties and which require the parties to
either extradite the person sought or submit the matter for
prosecution. The conventions to which this clause would apply
at present include the Convention on Offenses and Certain Other
Acts Committed on Board Aircraft; \19\ the Convention on the
Suppression of Unlawful Seizures of Aircraft (Hijacking),\20\
the Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation (Sabotage); \21\ the Convention on the
Prevention and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents; \22\ and the
International Convention Against the Taking of Hostages.\23\ In
addition, Switzerland is expected to ratify the United Nations
Convention Against the Illicit Traffic in Narcotic Drugs and
Psychotropic Substances \24\ in the near future. Both the
United States and Switzerland are parties to the Single
Convention on Narcotic Drugs \25\ and the Amending Protocol to
the Single Convention; \26\ this provision of the Treaty would
pay to those conventions.
---------------------------------------------------------------------------
\19\ Sept. 14, 1963, 20 U.S.T. 2941, T.I.A.S. No. 6768, 704
U.N.T.S. 219.
\20\ Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192.
\21\ Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570.
\22\ Dec. 14, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532, 1035
U.N.T.S. 167.
\23\ Dec. 17, 1979, T.I.A.S. No. 11081.
\24\ Dec. 20, 1988, T.I.A.S. No.--.
\25\ Mar. 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 U.N.T.S.
204.
\26\ Mar. 25, 1972, 26 U.S.T. 1439, T.I.A.S. No. 8118, 976 U.N.T.S.
3.
---------------------------------------------------------------------------
Paragraphs 3 (a) and (b) permit the Requested State to deny
extradition for acts that are exclusively violations of
currency policy, trade policy, or economic policy, or are
intended exclusively to reduce taxes or duties. These
provisions were included in the Treaty because Swiss law
prohibits extradition for purely ``fiscal'' or tax
offenses.\27\ However, the Swiss delegation stated that
criminal conduct would not be shielded from extradition under
these provisions to the extent that the conduct is prohibited
by conventional penal concepts. For example, fraud and
embezzlement are crimes which may have economic motives and
effects but are clearly extraditable offenses under the Treaty.
Certain violations of antitrust, environmental, or tax laws may
be interpreted by Switzerland to fall within this category of
non-extraditable offenses. Nonetheless, the underlying conduct
prohibited by such laws may be accompanied by other offenses--
for example, falsification of public documents in the course of
concealing an environmental crime--and extradition will remain
available for those other offenses.
---------------------------------------------------------------------------
\27\ I.M.A.C. article 3(3) states: ``A request shall not be granted
if the subject of the proceeding is an offense which appears to be
aimed at reducing fiscal duties or taxes or which violates regulations
concerning currency, trade, or economic policy. * * *'' I.M.A.C. art.
3(3).
---------------------------------------------------------------------------
Paragraph 3(c) provides that extradition may be denied by
the Requested State if the request relates to a matter that
constitutes an offense only under military law.\28\
---------------------------------------------------------------------------
\28\ An example of such a crime is desertion. See ``Matter of the
Extradition of Suarez-Mason,'' 694 F. Supp. 676, 703 (N.D. Cal. 1988).
---------------------------------------------------------------------------
Article 4--Non bis in idem
This article will permit extradition in situations in which
the fugitive is charged with different offenses in each
Contracting Party arising out of the same basic transaction.
Paragraph 1, which prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
same acts for which extradition is requested, is similar to
language found in many United States extradition treaties.
Paragraph 2 follows most modern United States extradition
treaties in giving the Requested State the option of
instituting proceedings regarding the same acts against the
person for whom extradition is sought, in the event it has
jurisdiction to do so. Alternatively, it permits the Requested
State to simply extradite the person to the Requesting State.
Paragraph 3 makes it clear that neither Contracting Party
may refuse to extradite an offender to the other on the ground
that the Requested State's authorities declined to prosecute
the offender, or instituted criminal proceedings against the
offender and thereafter elected to discontinue the proceedings.
This provision was included because a decision of the Requested
State to forego prosecution, or to drop charges already filed,
may be the result of a failure to obtain sufficient evidence or
witnesses for trial, whereas the prosecution in the Requesting
State may not suffer from the same impediments. This provision
should enhance the ability to extradite to the jurisdiction
with the better chance of a successful prosecution.
Overall, this article will permit extradition to or from
the United States in situations in which the fugitive is
charged with different offenses by the Contracting Parties for
different activities arising from the same course of conduct.
For example, a person in the United States who prints
counterfeit Swiss currency and uses it in an attempt to defraud
other persons located in the United States could be prosecuted
in the United States for fraud and, if not prosecuted in the
United States for counterfeiting Swiss currency, could be
extradited to Switzerland for prosecution for counterfeiting.
Article 5--Lapse of time
This article states that extradition shall not be granted
when the prosecution or the enforcement of the penalty or
sanction has become barred by a lapse of time according to the
law of the Requesting State. Similar provisions appear in
several United States extradition treaties. The reference to
``enforcement of the penalty or sanction'' reflects the fact
that Switzerland, like many civil law countries, has a statute
of limitations relating to such matters, in addition to a
statute of limitation on prosecutions.
In addition, this clause ensures that a court in the
Requested State will not apply the Requested State's statute of
limitations under the erroneous belief that it should do so in
order to determine whether dual criminality exists.\29\ Such an
analysis is wholly inappropriate, for statutes of limitations
are designed by countries to complement their criminal laws and
procedures. Applying a statute of limitations designed for one
country's legal system to that of another country is likely to
impose unfortunate and unintended restrictions on the
Requesting State's ability to obtain extradition of persons who
have committed serious violations of its laws. Therefore, this
article provides that extradition must be denied only if the
Requesting State's statute of limitations bars prosecution or
enforcement of the sentence.
---------------------------------------------------------------------------
\29\ Such an analysis has been rejected by a number of United
States courts. See, e.g., Theron v. U.S. Marshal, 832 F.2d 492, 499
(9th Cir. 1987), cert. denied, 486 U.S. 1059 (1988) (focus of dual
criminality analysis is on the conduct that the law criminalizes, not
the statute of limitations); see also Merino v. U.S. Marshal, 326 F.2d
5, 12 (9th Cir. 1963) (in absence of treaty provisions, the statute of
limitations may not be raised in extradition proceedings); Kamrin v.
United States, 725 F.2d 1225, 1227 (9th Cir.), cert. denied, 469 U.S.
817 (1984).
---------------------------------------------------------------------------
Article 6--Capital punishment
This article permits the Requested State to refuse
extradition in cases where the offense for which extradition is
sought is punishable by death in the Requesting State, but is
not punishable by death in the Requested State, unless the
Requesting State provides such assurances that the Requested
State considers sufficient that the death penalty will not be
carried out. Switzerland insisted on this provision because
Switzerland has abolished the death penalty,\30\ and Swiss
extradition law prohibits extradition in cases in which the
person sought might be executed.\31\ Similar provisions are
found in many recent United States extradition treaties.\32\
---------------------------------------------------------------------------
\30\ See STGB, C.P., COD. PEN., Swiss Federal Criminal Code, art.
35.
\31\ See I.M.A.C. art. 37(2).
\32\ See, e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980,
art. 7, T.I.A.S. No. 10733; U.S.-Ireland Extradition Treaty, July 13,
1983, art. 6, T.I.A.S. No. 10813.
---------------------------------------------------------------------------
Article 7--Conviction in absentia
This article gives the Requested State the discretion to
refuse to extradite a fugitive who has been convicted in
absentia (i.e., one who was convicted without ever appearing in
connection with the proceeding) in the Requesting State. The
laws of the United States and Switzerland differ on who should
make this decision. This clause will enable the Secretary of
State to carry out the longstanding United States policy of
permitting extradition in such cases only when the person
sought will have the opportunity for a hearing on the issue of
guilt in the Requesting State or has knowingly failed to
protect the person's ability to have such a hearing.
Article 8--Extradition of nationals
Paragraph 1 states that the Requested State shall not
decline to extradite because the person sought is a national of
the Requested State unless it has jurisdiction to prosecute
that person for the acts for which extradition is sought. The
United States will extradite its nationals to Switzerland in
accordance with the established United States policy favoring
such extraditions.\33\ However, Switzerland is prohibited by
its law from extraditing a Swiss national without the person's
consent.\34\ It is unlikely that Switzerland will surrender its
nationals to the United States under the Treaty unless Swiss
law is amended in the future.
---------------------------------------------------------------------------
\33\ 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 which permits but
does not expressly require surrender of citizens, as long as the other
requirements of the treaty have been met. 18 U.S.C. Sec. 3196.
\34\ See I.M.A.C. Sec. Sec. 7, 37.
---------------------------------------------------------------------------
Paragraph 2 requires that if the Requested State refuses
extradition solely on the basis of nationality, the Requested
State shall submit the case to its competent authorities for
prosecution if asked to do so by the Requesting State. Similar
provisions are found in many recent United States extradition
treaties.\35\
---------------------------------------------------------------------------
\35\ See, e.g., U.S.-Costa Rica Extradition Treaty, Dec. 4, 1982,
art. 8, T.I.A.S. No. --; U.S.-Mexico Extradition Treaty, May 4, 1978,
art. 9(2), 31 U.S.T. 5059, T.I.A.S. No. 9656.
---------------------------------------------------------------------------
Article 9--Request for extradition
This article, which sets out the documentary and
evidentiary requirements for an extradition request, is similar
to articles in the most recent United States extradition
treaties.
Paragraph 1 requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for the
provisional arrest of the fugitive pursuant to article 13.
Provisional arrest requests need not be initiated through
diplomatic channels if the requirements of article 13 are met.
Paragraph 2 outlines the information that must accompany
every request for extradition under the Treaty. Paragraph 3
describes the additional information needed when the person is
sought for trial in the Requesting State; paragraph 4 describes
the information needed, in addition to the requirements of
paragraph 2, when the person sought has already been tried and
convicted in the Requesting State.
Most of the items listed in paragraph 2 enable the
Requested State to determine quickly whether extradition is
appropriate under the Treaty. For example, paragraph 2(c) calls
for ``the texts of the laws describing the essential elements
of the offense for which extradition is requested, the
punishment for the offense, and the time limit on the
prosecution or the execution of the punishment for the
offense.'' This information would enable the Requested State to
determine easily whether lack of dual criminality or lapse of
time would be a valid basis for denying extradition under
article 2 or 5.
Paragraph 3 requires that if the fugitive has not yet been
tried for the crime for which extradition is requested, the
Requesting State must provide a copy of the outstanding arrest
warrant, the formal charges, and ``a summary of the facts of
the case, of the relevant evidence, and of the conclusions
reached, providing a reasonable basis to believe that the
person sought committed the offense for which extradition is
requested. * * *'' This is consistent with fundamental
extradition jurisprudence in the United States, under which
this language is interpreted to require probable cause.\36\
During the negotiations, the Swiss delegation assured the
United States that under Swiss law, the outstanding United
States arrest warrant would constitute sufficient evidence to
justify extradition. Since the procedure for preparing
international extradition requests differs in the United States
and Switzerland, the Treaty specifies that ``* * * in the case
of Switzerland such a summary shall be written by a judicial
authority and in the case of requests from the United States it
shall be written by the prosecutor and shall include a copy of
the charge.''
---------------------------------------------------------------------------
\36\ Courts applying Title 18, United States Code, Section 3184
have long required probable cause for international extradition.
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 476 comment b (1987).
---------------------------------------------------------------------------
Paragraph 4 lists the information needed to extradite a
person found guilty of an offense in the Requesting State. This
paragraph makes it 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 absent a specific
treaty provision.\37\
---------------------------------------------------------------------------
\37\ 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).
---------------------------------------------------------------------------
Paragraph 5 states that if the person sought was found
guilty in absentia, the documentation required for extradition
must include both proof of conviction and the documentation
required under paragraphs 2 and 4.
Article 10--Supplementing the request
This article, which is similar to provisions in other
recent United States extradition treaties,\38\ provides for the
submission of additional evidence or information if the
original request and supporting documentation are viewed as
insufficient by the Requested State. This is intended to permit
the Requesting State to have an opportunity to cure any defects
in the request and accompanying materials found by a court in
the Requested State.
---------------------------------------------------------------------------
\38\ See, e.g., U.S.-Jamaica Extradition Treaty, June 14, 1983,
art. I(2), T.I.A.S. No. --.
---------------------------------------------------------------------------
Article 11--Translation
This article requires that all documents submitted in
support of an extradition request be translated into the
language of the Requested State. Swiss requests to the United
States must be translated into English. Since Switzerland has
several official languages, United States requests to
Switzerland must be translated into the language spoken in the
Swiss canton in which the fugitive's extradition hearing will
be conducted, which will be French, German, or Italian.\39\
---------------------------------------------------------------------------
\39\ See I.M.A.C. art. 28(5).
---------------------------------------------------------------------------
Article 12--Admissibility of documents
This article governs the authentication procedures for
documentation provided in extradition cases.
Paragraph (a) states that evidence intended for use in
extradition proceedings in Switzerland must be certified by a
judge, magistrate or other United States official and must be
sealed by the Secretary of State.
Paragraph (b) states that evidence intended for use in
extradition proceedings in the United States shall be
admissible if it is certified by the principal diplomatic or
consular officer of the United States resident in Switzerland.
This provision primarily accommodates the authentication
procedures required by United States law.\40\
---------------------------------------------------------------------------
\40\ See 18 U.S.C. Sec. 3190.
---------------------------------------------------------------------------
Paragraph (c) provides an alternative method for
authenticating evidence in an extradition proceeding, by
permitting such evidence to be admitted if it is authenticated
in any manner accepted by the laws of the Requested State.
Under this paragraph, relevant evidence that would normally
satisfy the evidentiary rules of the Requested State should not
be excluded at the extradition hearing because of an
inadvertent error or omission in the authentication process.
Article 13--Provisional arrest
This article describes the process by which a person in one
Contracting Party may be arrested and detained while the formal
extradition request is being prepared by the Requesting State.
Paragraph 1 expressly provides that a request for
provisional arrest may be made either through the diplomatic
channel or directly between the United States Department of
Justice and the Swiss Federal Department of Justice and
Police.\41\ Experience has shown that the ability to use such
direct channels in emergency situations can be crucial when a
fugitive is posed to flee a jurisdiction.
---------------------------------------------------------------------------
\41\ It is understood that the United States Department of Justice
and the Swiss Federal Department of Justice and Police may use the
facilities of Interpool for such requests. See I.M.A.C. art. 44.
---------------------------------------------------------------------------
Paragraph 2 sets forth the information that the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must take
appropriate steps to arrest the person sought, and shall advise
the Requesting State without delay of the result of its
request.
Paragraph 4 provides that the fugitive may be released from
detention if the Requesting State does not receive the fully
documented extradition request within 40 days of the
provisional arrest. This period may be extended by a maximum of
20 additional days upon request. When the United States is the
Requesting State, documents must be received by the ``executive
authority,'' which would include the Secretary of State or the
United States Embassy in Bern.\42\ When Switzerland is the
Requesting State, the documents must be received by ``the
competent authorities,'' a term which includes the Swiss
courts.
---------------------------------------------------------------------------
\42\ Clark, 470 F. Supp. 976, 979.
---------------------------------------------------------------------------
Paragraph 5 states that the person arrested may be released
from custody if the documents are not received within the 60-
day period. However, the person may be taken into custody again
and the extradition proceedings may be re-commenced when the
formal request is presented at a later date.
Article 14--Decision and surrender
This article requires that the Requested State promptly
notify the Requesting State through diplomatic channels of its
decision on the extradition request. If extradition is denied,
the Requested State must provide the reasons for the denial. If
extradition is granted, the article requires that the
Contracting Parties agree on a time and place for surrender of
the person. The Requesting State must remove the fugitive
within the time prescribed by the law of the Requested State or
the person may be discharged from custody, and the Requested
State may subsequently refuse to extradite the person for the
same offense. Under United States law, such surrender must
occur within two calendar months of the finding that the
offender is extraditable,\43\ or of the conclusion of any
litigation challenging that finding,\44\ whichever is later.
Under Swiss law, the surrender must take place within ten days
of the finding that the offender is extraditable, or of the
conclusion of any litigation challenging that finding,
whichever is later, and that period can be extended for 30 days
upon request.\45\
---------------------------------------------------------------------------
\43\ 18 U.S.C. Sec. 3188.
\44\ Jimenez v. U.S. District Court, 84 S. Ct. 14, 11, L.Ed.2d 30
(1963) (decided by Goldberg, J., in chambers); see 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).
\45\ I.M.A.C. art. 61.
---------------------------------------------------------------------------
Article 15--Deferred and temporary surrender
Occasionally, a person sought for extradition already may
be facing prosecution or serving a sentence on other charges in
the Requested State. This article provides a means for the
Requested State to defer extradition in such circumstances
until the conclusion of the proceedings against the person
sought and the service of any punishment imposed. Similar
provisions appear in our recent extradition treaties with the
Bahamas and Australia.
Paragraph (a) provides that the executive authority of the
Requested State may defer the surrender of a person who is
serving a sentence in the Requested State until the conclusion
of the proceedings against that person or the full execution of
any punishment that may or may not have been imposed.\46\
---------------------------------------------------------------------------
\46\ Under United States law and practice, the Secretary of State
makes this decision. See Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
Paragraph (b) provides for the temporary surrender for the
purpose of prosecution in the Requesting State of a person who
is being prosecuted or is serving a sentence in the Requested
State. A person temporarily transferred pursuant to the Treaty
will be returned to the Requested State at the conclusion of
the proceedings against that person in the Requesting State, in
accordance with conditions to be determined by mutual agreement
of the Contracting Parties. 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 a successful
prosecution. Such transfer may also be advantageous to the
person sought in that: (1) it permits resolution of the charges
sooner; (2) it makes possible the service of any sentence 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. Similar provisions are found in many recent
extradition treaties.
Article 16--Rule of specialty
The Rule of Specialty as set forth in this article is
substantively similar to the rule as embodied in other recent
United States extradition treaties. Paragraph 1 provides that a
person surrendered under the Treaty may be detained, proceeded
against, or sentenced in the Requesting State only for an
offense for which extradition was granted, an offense
differently denominated but based on the same facts, an offense
committed after the person's surrender, or an offense to which
the Requested State consents. Subparagraph 1(a) further
provides that before giving such consent, the Requested State
may require the Requesting State to document its request as if
it were an ordinary request under the Treaty. The Secretary of
State will determine whether such consent should be given by
the United States.47
---------------------------------------------------------------------------
\47\ See Berenguer v. Vance, 473 F. Supp. 1195 (D.D.C. 1979).
---------------------------------------------------------------------------
Paragraph 1 also provides that a person extradited under
the Treaty may not be extradited to a third country for any
offense committed prior to surrender other than that for which
extradition has been granted without the consent of the
executive authority of the Requested State. In the case of the
United States, the Secretary of State will decide whether such
consent should be given.
Paragraph 1(b) permits the detention, trial, or punishment
of an extraditee for additional offenses, or the extradition of
that person to a third country if the extraditee (1) leaves and
returns to the Requesting State, or (2) does not leave the
Requesting State within 45 days of being free to do so.
Paragraph 2 recognizes that, under Swiss law, prosecutions
in absentia may be required to avoid the running of the statue
of limitations.
Paragraph 3 reiterates the basis proposition under both
United States and Swiss law that extradition is granted for
specific illegal acts by the fugitive which are punishable
under both legal systems. Thus, once extradition is granted,
the returned fugitive may be prosecuted--without a request for
a waiver of the Rule of Specialty--for any charge that can be
brought under the set of facts for which extradition was
granted, as long as the penalties for the new charges are not
greater than the penalties for those offenses for which
extradition was granted. Thus, no waiver of the Rule of
Specialty is required if an offense is differently denominated
in the requesting State than in the Requested State, but is
based on the same facts for which extradition was granted. Only
if the factual basis for the charges is altered or the penalty
is increased must a request for a waiver of the Rule of
Specialty be made.
Paragraph 4 provides a mechanism for obtaining a waiver by
the fugitive of the Rule of Specialty. Subparagraph 4(a)
follows existing requirements of Swiss law for such a waiver.
Subparagraph 4(b) follows United States law.
Article 17--Requests for extradition by several States
This article, which follows the practice set forth in many
recent United States extradition treaties, lists some of the
factors that the executive authority of the Requested State
must consider in determining to which country to surrender a
person whose extradition has been requested by two or more
countries.48 For the United States, the Secretary of State
makes this decision.49
---------------------------------------------------------------------------
\48\ See I.M.A.C. art. 40.
\49\ See Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla.
1990), aff'd, 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------
Article 18--Simplified extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings in order to expedite
their return to the Requesting State. This article provides a
framework for such a waiver and return. It states that when a
fugitive consents in writing to be surrendered to the
Requesting State and has been advised by a judicial authority
of the right to a formal proceeding and its protections, the
person's surrender may be granted by the Requested State
without formal extradition proceedings. The negotiators
anticipated that in such cases, the Requested State would have
no need for the formal documents described in article 9 or
further judicial or administrative proceedings of any kind.
If the United States is the Requested State and the person
sought elects to return voluntarily to Switzerland before the
United States Secretary of State signs a surrender warrant, the
process would not be deemed an ``extradition.'' Longstanding
United States policy is that the Rule of Specialty does not
apply to such cases. However, the second sentence of this
article states that when Switzerland is the Requested State,
the Rule of Specialty set forth in article 16 will apply to
cases in which article 18 was invoked. This is in accordance
with Swiss law.50 A similar requirement is found in other
recent United States extradition treaties.51
---------------------------------------------------------------------------
\50\ See I.M.A.C. art. 54.
\51\ See, e.g., U.S.-Mexico Extradition Treaty, May 4, 1978, art.
18, 31 U.S.T. 5059, T.I.A.S. No. 9656; U.S.-Jamaica Extradition Treaty,
June 14, 1983, art. 15, T.I.A.S. No.--.
---------------------------------------------------------------------------
Article 19--Surrender of property
This article provides for the seizure by the Requested
State of all property--which might include articles,
instruments, objects of value, documents, or other evidence--
relating to the offense, to the extent permitted by the
Requested State's internal law. The article also provides that
these objects shall be surrendered to the Requested State upon
the granting of the extradition or even if extradition cannot
be effected for any reason, including the death, disappearance,
or escape of the fugitive. Paragraph 2 states that the
Requested State may condition its surrender of property upon
satisfactory assurances that the objects will be returned to
the Requested State as soon as practicable. The obligation to
surrender property under this provision is expressly made
subject to due respect for the rights of third parties in such
property.
Article 20--Transit
Paragraph 1 gives each Contracting Party the power to
authorize transit through its territory of persons being
surrendered to the other Contracting Party by third countries
and to hold such persons in custody during the period of
transit. Transit requests may be transmitted via the diplomatic
channel. Each request must contain a description of the person
whose transit is being proposed, a brief statement of the facts
of the case necessitating the surrender to the Requesting
State, and other information as specified in paragraph 1. This
paragraph also states that no advance authorization is needed
if air transportation is being used and no landing was
scheduled in the territory of the other Contracting Party.
Paragraph 2 states that if an unscheduled landing occurs,
the transit shall be subject to the provisions of article
29(1). The person in transit may be kept in custody for up to
72 hours until a request for transit is received, and, if the
request is granted, may remain in custody thereafter until the
transit is complete.
Article 21--Expenses
Paragraph 1 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
transportation of the fugitive to the Requesting State and the
translation of documents, which are to be paid by the
Requesting State. This is consistent with Swiss and United
States law on this subject.\52\
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\52\ See 18 U.S.C. Sec. 3195; I.M.A.C. art. 31.
---------------------------------------------------------------------------
Paragraph 2 provides that the Requested State shall provide
for the representation of the Requesting State in any
proceedings arising out of the request for extradition. Thus,
the United States will represent Switzerland in connection with
a request from Switzerland for extradition before the courts in
this country, and the Swiss Federal Department of Justice and
Police will arrange for the representation of United States
interests in connection with United States extradition requests
to Switzerland. In the past, such reciprocal representation
arrangements have provided the United States with high quality
legal representation in extradition cases. This arrangement
also ensures better coordinated and more uniform handling of
foreign extradition requests before United States courts.
Article 22--Application
The Treaty, like most other United States extradition
treaties negotiated in the past two decades, expressly states
that it applies to offenses committed before as well as after
the date on which the Treaty enters into force.
Article 23--Effect on other treaties and laws
This article is intended to ensure uniform procedures for
the execution of extradition requests. It provides that
whenever the procedures provided by the Treaty would facilitate
the extradition provided for under any other convention or
under the law of the Requested State, the procedures provided
by the Treaty shall be used. Thus, the Treaty supplies the
procedures to be used in any extradition request arising under
the Treaty or under any of the various specialized multilateral
treaties that may contain extradition obligations. Without this
article, the provisions of Swiss extradition law would apply to
United States requests arising under these multilateral
treaties, which possibly could lead to inconsistent results.
Article 24--Consultation
This article provides that the Contracting Parties shall
consult, at the request of either Contracting Party, regarding
the interpretation, application, or operation of the Treaty,
either in general or with respect to a specific case. A similar
provision is found in other recent United States extradition
treaties awaiting ratification.\53\
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\53\ See, e.g., U.S.-Jordan Extradition Treaty, March 28, 1995,
art. 20. See, also, extradition treaties awaiting to be entered into
force: U.S.-Belgium Extradition Treaty, Apr. 9, 1987, art. 19, T.I.A.S.
No. --; U.S.-Philippines Extradition Treaty, Nov. 13, 1994, art. 18,
T.I.A.S. No. --; U.S.-Hungary Extradition Treaty, Dec. 1, 1994, art.
21, T.I.A.S. No. --.
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Article 25--Entry into force and termination
This article contains standard treaty language providing
for the ratification of the Treaty and the exchange of
instruments of ratification at Washington, D.C., as soon as
possible.
Paragraph 2 states that the Treaty will enter into force
180 days after the exchange of instruments of ratification.
Paragraph 3 provides that the extradition treaty currently
in force and the supplementary treaties of 1935 and 1940 shall
cease to have effect upon the entry into force of the Treaty,
except with respect to extradition requests pending when the
Treaty enters into force.
Paragraph 4 provides that the Treaty may be terminated by
either contracting Party at any time after five years from the
date of entry into force, provided that at least six months
prior to the termination, written notice of termination was
provided to the other Contracting Party.
The Treaty, like all of our recently negotiated treaties,
makes the kidnapping of one's own child in violation of local
law (parental child kidnapping) an extraditable offense,
provided there is dual criminality and the offense is
punishable by imprisonment for at least one year in both
Contracting Parties. However, both Contracting Parties are
sensitive to the fact that prior to making any request for
extradition, efforts should be made to ensure that the request
is backed by a legitimate law enforcement interest in the
prosecution of the case. Among the factors to be addressed
would be the appropriateness of the prosecution itself and,
particularly in cases in which the sole interest is the return
of the child and not prosecution, the availability of civil or
domestic relations procedures, including the Convention on the
Civil Aspects of International Child Abduction, done at the
Hague October 25, 1980, in force for the United States July 1,
1988 (the Hague Convention), to which Switzerland is also a
party. Further, prosecutors must be cognizant of the fact that
extradition procedures do not necessarily result in the return
of the child and must weigh carefully whether it is in the best
interest of the child to undertake the extradition of the
kidnapper/parent while the child is still in the custody of
that parent. In some cases, it is desirable for extradition
proceedings to be delayed until after the child has been
returned to the appropriate parent or custodian.
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 Swiss
Confederation, signed at Washington on November 14, 1990. 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.